DC OF MALLALA v M & B FARMER NOMINEES PTY LTD No. SCGRG-99-724 [2000] SASC 117

Supreme Court of SA|2000-05-11|Before: Doyle CJ, Nyland JJ, Debelle J

Judgment No. [2000] SASC 117

On Appeal from ENVIRONMENT RESOURCES AND DEVELOPMENT COURT (JUDGE TRENORDEN, COMMISSIONER HUTCHINGS AND COMMISSIONER WALLMAN)

DISTRICT COUNCIL OF MALLALA v M & B FARMER NOMINEES PTY LTD

DOYLE CJ. I agree with the orders proposed by Debelle J. There is nothing that I wish to add to the reasons that he gives for making those orders.

DEBELLE J. This appeal from the Environment Resources and Development Court ("the Environment Court") involves two issues. They are:

1. Do the dam or the loading pad which the respondent intends to construct on its land constitute development within the meaning of the Development Act 1993?

2. If the answer to question 1 is yes, is the dam or the loading pad a non-complying development?

The respondent owns land at Lewiston. It is used for horticultural purposes. At present it is used for growing potatoes and onions. The land is within the area of the District Council of Mallala ("the Council") and is subject to the Development Plan for the Council area. The subject land lies within a Rural Living (2) Zone prescribed by that Development Plan. In addition, it is also subject to controls under the Rural Living Policy Area and the Gawler River Flood Plain Policy Area as prescribed by the same Development Plan.

The respondent applied to the Council for development consent to construct a dam and a loading pad. The respondent had then almost completed construction of the dam. If the dam is development as defined, the respondent has failed to obtain development consent before commencing construction and has therefore acted in breach of s 32 of the Development Act. However, the fact of the unlawful activity is not a relevant factor when determining the issues in this appeal: Kouflides and Jonquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321.

The Council refused the respondent's application. The respondent appealed to the Environment Court which decided

(1) that the construction of the dam and the loading pad constituted development. The Environment Court held that, although the loading pad was not itself development, the application was for both the dam and the loading pad so that viewed together the application was for a proposal which constituted development;

(2) that the dam and the loading pad did not constitute a non-complying development; and

(3) that provisional development plan consent should be granted to the respondent to construct the dam and the loading pad.

The Council appealed against the Environment Court's decision. Although the notice of appeal raised several grounds, at the hearing of this appeal the Council limited its appeal to two grounds. The first complained of the decision that the construction of the loading pad was not itself development. The second complained of the decision the dam and the loading pad were not a non-complying development. The respondent has cross-appealed against the decision that the dam and the loading pad were development as defined.

The proposed dam is substantial. When constructed, it will be about 110 metres long and about 45 metres wide. It will, therefore, have an area of a little under 5,000 square metres. It will have a capacity in excess of 10.45 megalitres. The dam will be constructed by excavating soil to a depth of two metres below the natural ground level and mounding earth around the excavated area to a height of about two metres above the natural ground level. This construction will enable storage of water to a maximum depth of a little less than four metres. The dam will be constructed on relatively level land. It will be filled by water pumped from bores and not by water flowing across a catchment area. The mounds of earth which will constitute the walls of the dam will be suitably formed and compacted to make a receptacle for water to be held in the dam. The walls of the dam will surround it on all four sides.

The word "development" and other terms are defined in s 4 of the Development Act. The relevant provisions of the definition of "development" are:

"(a) building work; or (b) a change in the use of land; or ... (h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development."

The expression "building work" is also defined by s 4. The definition reads:

" 'building work' means work or activity in the nature of-- (a) the construction, demolition or removal of a building; or (b) the making of any excavation or filling for, or incidental to, the construction, demolition or removal of a building; or (c) any other prescribed work or activity."

The word "building" is also defined. The relevant part of the definition reads:

" 'building' means a building or structure or portion of a building or structure ... whether temporary or permanent, movable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan fixed to land."

The word "structure" is also defined. The definition is:

When all of these definitions are read together it is apparent that an extended meaning is given to the word "development".

The Environment Court held that the construction of the dam was building work as defined since it involved the construction of a structure. The court was correct in reaching that conclusion. In ordinary usage the word "structure" has a wide meaning. The wide meaning of "structure" has been preserved by the definition in s 4 of the Development Act. The Shorter Oxford English Dictionary defines "structure" in these terms:

"That which is built or constructed; a building or edifice of any kind, esp. one of considerable size and imposing appearance. 5. More widely: A fabric or framework of material parts put together."

The width of the statutory definitions in s 4 of the Development Act indicates that it is not necessary for the structure to be of considerable size. The Macquarie Dictionary definition is in similar terms:

"Something built or constructed; a building, bridge, dam, framework, etc."

The inclusion of dam in this definition is not in itself determinative of the issues in this appeal. Dams vary enormously in size and method of construction. They range from substantial dams with huge concrete walls to small agricultural dams which may be little more than several scoops out of a hillside. The essential part of each of the definitions is the reference to "something built or constructed". It may sometimes be a question of fact and degree whether a dam constitutes something which has been built or constructed. However, in the particular circumstances of this case, there can be little doubt that the respondent's dam is a structure. It involves substantial excavation of some 9,900 cubic metres of soil. It will have walls of compacted earth about two metres high. The construction of the walls requires placing of the earth, shaping and compaction. For these reasons it is a structure within the meaning of the Development Act and by reason of the definitions of "building" and "building work" in s 4 of the Act constitutes development within the meaning of the Act.

Mr Hayes QC, who appeared for the respondent, relied on the decision in Benz v Blacktown Municipal Council (1971) 25 LGRA 133. In that case it was held that a dam constructed by erecting an earth wall some 12 feet high across a stream was not a building or structure. But that decision must be distinguished since it concerned statutory provisions quite unlike the extensive definition of "development" in s 4 of the Development Act. The fact that the definition of "structure" includes a wall is sufficient to preclude any reliance on that decision.

In the course of the Council's consideration of its application, the respondent amended his proposal to include a fence which will be erected on the top of the dam wall. The fence was to be erected for security purposes only. Mr Roder, who appeared for the Council, referred to the definition of "structure" in s 4 and submitted that the fence resulted in the dam being a structure. The fence is additional to and does not form part of the dam. I do not think that the intended existence of this fence assisted in determining whether the dam is development and I have no regard to it. Furthermore, given the nature of the proposed fence, it is a nice question whether the fence constitutes development as defined by the Development Act and the Regulations made thereunder.

There is a preferable means of reaching the same conclusion which was not adopted by the Environment Court. Reference has already been made to paragraph (h) of the definition of "development". It is convenient to repeat it:

"An act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development."

Regulations have been made pursuant to that provision. Regulation 6 and Schedule 2 of the Development Regulations 1993 list additional activities which constitute development. Paragraph 3 of Schedule 2 provides that excavation or filling in a flood plain constitutes development. The relevant part of Schedule 2 provides:

"The following acts or activities constitute development: ... 3. Any excavating or filling (or excavation and filling) of land, or the forming of a levee or mound, in a Watercourse Zone, Flood Zone or Flood Plain delineated by the relevant Development Plan, or in any other zone or area shown as being subject to flooding or inundation in the relevant Development Plan but not including [then a number of exceptions are listed]."

It is common ground that none of the listed exceptions are relevant. The act or activity which para 3 declares to be development is excavation or filling or both excavation and filling. Paragraph 3 is not concerned with the reason for or purpose of the excavation. The construction of this dam requires excavation. The land is in the Gawler River Flood Plain Policy Area prescribed by the Council's Development Plan. The excavation required for the dam will therefore constitute development.

Mr Hayes QC, who appeared for the respondent, submitted that the excavation for the dam constituted the continuation of an existing use of the land. He contended that the land would continue to be used for horticultural purposes and the dam was a means to that end, namely, to store water to irrigate the crops grown on the land. The land, he said, had been irrigated by one means. The respondent now proposes to irrigate its land by other means. The proposed activity, he said, is the dam not the excavation. The argument misconceives the effect of the exception in para (h) of the definition of "development". As was noted in Hall v Corporation of the City of Burnside [1999] SASC 536 at para 12, the exception in para (h) is directed to the act or activity which the relevant regulation declares to be development. It is the activity of excavation, not the provision of a facility in the form of a dam to assist the continuation of the existing use of the land for horticultural purposes, which constitutes development as declared by Schedule 2 of the Regulations. In other words, unless the act or activity which is declared by regulation to be development is the continuation of an existing use of the land, the act or activity constitutes development. Thus, had there been an existing dam on the land, an enlargement of that dam may not have constituted development as defined by para 3, although it may be development because it is building work. The excavation of land for the dam is not, therefore, an existing use of land. The exception in para (h) does not, therefore, apply. Thus, the excavation is development.

Furthermore, the argument of Mr Hayes QC ignores the plain words of para 3. Their intent is to operate whenever there is an excavation in a prescribed flood plain. As already stated, it is the act of excavation which is declared to be development. The manifest purpose of para 3 of Schedule 2 is to catch certain types of activities which are sensitive in the flood plain. Paragraph 3 is one of several provisions in Schedule 2 which declare certain activities to be development in environmentally sensitive areas: see also paras 1, 2 and 5. The regulation, therefore, defines as development any activity not previously carried out on a relevant parcel of land. It is not relevant to enquire whether the proposed activity will assist in the continuation of an existing use of the land. Instead, the only enquiry is whether the proposed activity is already an existing use. The regulation does not apply only when there is a change in the existing use of land since a change in the use of land constitutes development in any event: see para (b) of the definition of "development".

The Environment Court held that the construction of the loading pad did not in itself constitute development. It held that it was development only because the application was for consent to construct both the dam and the loading pad. The Council contends that the loading pad is development.

The loading pad will be some 50 metres long and 40 metres wide. It is proposed to construct the loading pad by introducing filling. The area is to be sealed with a compacted limestone rubble base approximately 150 mm high. That base will be topped with fines in order to provide a durable all weather surface capable of supporting parking, loading and despatch of vehicles associated with the use of this land for horticultural purposes.

It is a nice question whether the construction of the loading pad is a construction of a structure and, therefore, development as defined in s 4 of the Act since compaction of the filling is proposed to make the loading pad serviceable. It is unnecessary to stay with that question since, for the reasons which follow, it is development as defined by para 3 of Schedule 2 of the Development Regulations. As already noted, filling of land in this flood plain constitutes development. None of the exceptions in para 3 apply. For the reasons already given, filling does not constitute an existing use of the land. Given that the respondent will be introducing filling to the land in order to construct the loading pad to a height of 150 mm above ground level, the filling constitutes development by reason of the terms in para 3 of Schedule 2.

As already mentioned, the subject land is located within a Rural Living (2) Zone. The Development Plan lists a number of Principles of Development Control for this zone. Principle 11 specifies a number of kinds of development which are non-complying in that zone. If the development proposed by the respondent is non-complying, the respondent had no right of appeal to the Environment Court: s 35(4) of the Development Act. The list of non-complying developments in Principle 11 includes:

"Filling and/or excavation of land within Gawler River Flood Plain Hazards Zones 1, 2 or 3 (GRO Map No. 238 of 1993), including levee banks, other than where it is a direct consequence of and is necessary for building work."

The Environment Court concluded that since the development comprised building work, the excavation of land and the filling were a direct consequence of that work so that the dam itself was not a non-complying development. The court has erred in reaching that conclusion.

This paragraph in Principle 11 distinguishes between filling or excavation of land as an activity in itself and filling or excavation of land which is a direct consequence of and is necessary for building work. Thus, excavating to create an area to be filled by footings for a house or other building would not be non-complying development. Similarly, an excavation for the floor or base of a building which is to be filled by a large concrete slab would not be non-complying development. The excavation of this land to construct the dam is an activity in itself. The excavation is not carried out merely as a step in the construction of the dam. Admittedly, the building of the wall constitutes building work because the excavated soil will be compacted to form the walls of the dam. Nevertheless, the excavation is not within the exception of being a consequence of or necessary for building work. The excavation is an end in itself and will remain an excavation after the building work. Further, I do not think that it is intended that the exception in this paragraph in Principle 11 should apply in the case of an excavation for a dam. Unlike excavation for footings or for a concrete slab, the excavation will remain and thus might cause problems in the flood plain. It is, of course, possible that excavation for a building might consist of cutting into a hillside to create a level building site but it is difficult to imagine such work being necessary on a flood plain. For these reasons, this paragraph in Principle 11 should be read down so that the exception does not apply to an excavation for a dam. The excavation is, therefore, a non-complying use.

A difficulty arises because "building work" is defined by the Development Act in a way which would include the construction of a building or structure. If the dam is a structure, the excavation proposed by the respondent is a necessary part of the building work involved in the construction of the dam. As Mr Hayes QC stressed, in the course of argument, it is an essential element in the construction of the dam. In that sense, he submitted, it appears to fall clearly within the exception to Principle 11. However, if this paragraph were read in the manner for which the respondent contends, it would lead to anomalies. If the dam had been constructed by excavation only without creating the walls, there would be no building work as that expression is defined in the Development Act. The work would then plainly fall within the terms of Principle 11. It is manifestly absurd that the dam proposed by the respondent should fall outside Principle 11 because it has walls but a dam without walls would be caught by Principle 11. Furthermore, when the provisions relating to flood plains expressed in the Development Regulations and in the Development Plan are read together, the purpose of these provisions is apparent. The acts or activities which are declared to be non-complying development in Principle 11 are excavation and filling. Those very acts are acts which para 3 of Schedule 2 of the Development Regulations declares to be development. The intention is that para 3 of Schedule 2 and Principle 11 should have a complementary operation. Paragraph 3 of Schedule 2 declares the excavation and filling to be development and Principle 11 declares those very acts to be non-complying developments in the Gawler River Flood Plain. It is apparent that the combined operation of these provisions are designed to protect the Gawler River Flood Plain. Excavation for a dam would create a permanent depression and thus, may lead to difficulty in the flood plain. It is, therefore, appropriate that excavation for dams should not fall within the exception in this paragraph of Principle 11.

The provisions of the Development Plan must not be interpreted like a statute. The Plan does not always use expressions in a consistent manner. Regard must, therefore, be had to the overall purpose and intent of the zone. For the reasons already given, it is apparent that the Council wishes to be able to exercise a tight control over excavation and filling in this flood plain and, for that reason, has declared such activities to be non-complying developments. This conclusion is therefore entirely consistent with the purpose and intent of the Development Plan.

For all of these reasons, the exception in this paragraph of Principle 11 should be read down so that it does not apply to an excavation for the purpose of constructing a dam. Since the development is a non-complying development, the respondent had no right of appeal to the Environment Court. The Environment Court therefore had no jurisdiction to grant development consent. For these reasons, the Council must succeed on this appeal.

The respondent's position attracts a deal of sympathy. It seeks to enhance the existing use of its land for horticultural purposes. However, any sympathy for the respondent must be tempered by the fact that, as already noted, the provisions of the Development Regulations and the Development Plan to which reference have been made in these reasons are designed to protect the Gawler River Flood Plain and effect must be given to them.

For all of these reasons, I would allow the appeal and dismiss the cross-appeal. I would set aside the order of the Environment Court and, in lieu thereof, order that the appeal to that court be dismissed.

NYLAND J. I agree that the appeal should be allowed and the cross-appeal dismissed for the reasons expressed by Debelle J.

Development Act 1993s 4, s

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