Develop Assess Commission v Macag Holdings Pty Ltd No ERD-00-1069 [2000] SAERDC 81

2 The Court generally hears applications for such leave ex parte. However, Macag became aware that the application was pending, and upon it coming on before the Court Mr Manos appeared for Macag and applied for leave to be heard. Leave was granted. Ms Murphy appeared for the Commission.

3 The application was supported by affidavits of Roger David Freeman, a Principal Planning Officer of the Department of Transport and Urban Planning, Dean Melville Hatchard, a Compliance Officer employed by the Council of the City of Burnside and Susan Nicola Draper, a Policy and Projects Planner employed by the same council. Although Mr Manos foreshadowed that, should this matter proceed to trial, several of the numerous matters referred to in the affidavits may be subject to dispute, the facts disclosed in the affidavits were taken as true for the purpose of this application.

4 The land the subject of these proceedings is that comprised and described in Certificate of Title Volume 5522 Folio 435 and is described as Allotment 517 Filed Plan 19032 in the area named Beaumont, Hundred of Adelaide. It is adjacent and to the east of Duncan Road, Beaumont. The respondent is the registered proprietor.

5 A principal feature of the land is a valley which traverses it from south to north. The valley continues both downhill from the northern boundary of the land and uphill from its southern boundary. That portion of the valley lying uphill from the southern boundary of the land was used by the Burnside Council as a rubbish tip and has now been filled with unconsolidated rubbish with a topping of soil. The finished surface of this portion of the valley is generally flat to undulating but not level - it slopes downwards in a generally south/westerly direction towards both the subject land and the tip gate at the top end of Duncan Road. The valley running through the land is quite deep. In parts, its depth exceeds 20 metres. Its sides are quite steep and, in the main, reasonably well covered with vegetation consisting of trees, bushes and grasses of various species.

6 The land lies within the Residential 625 Zone as prescribed by the City of Burnside provisions of the Development Plan.

7 The Certificate of Title indicates that Macag has owned the land from at least 8th December, 1999. By development application made on that day, Macag applied to the City of Burnside for approval to divide the land into four allotments plus a road. In view of the fact that it owned the land abutting the southern boundary of the land the subject of these proceedings, the Council sought, for the Minister for Transport and Urban Planning, a direction pursuant to Section 34 of the Development Act that the Development Assessment Commission should be the relevant planning authority with respect to the application. Such consent was granted and the Commission became the relevant authority. By decision notification dated 22nd June, 2000, the Commission refused land division approval. Macag appealed to this Court against such refusal but, prior to the appeal being set down for hearing, withdrew its appeal.

8 Correspondence between the Council, the Commission and Macag makes it clear that Macag does not regard the placing of fill within the valley as part of the land division application. It has, never the less, provided details of the fill to be placed on the land to both the Council and the Commission. Furthermore, by development application made on or about 11th October, 2000, Macag applied to the Council for development approval to place fill within the valley. Accompanying the application was an "earthworks specification" specifying the scope of the proposed work, the nature and mode of filling, benching, compaction and treatment of the "downstream batter face". Plans previously provided disclosed that it was Macag's intention to totally fill the valley except, perhaps, for the small battered portion at the northern end. At the southern end, it is proposed that the fill abut the fill already established on the Council land.

9 The application was accompanied by a letter from Macag's solicitors. The letter stated, amongst other things, that Macag did not regard the filling of the valley as "development" within the meaning of the Development Act and that the application was made on a "without prejudice" basis. The letter further stated that, because Macag did not regard the filling of the land as constituting development, it proposed to "continue to fill the land pending the determination of the application". The application is yet to be determined.

10 As foreshadowed in its solicitor's letter of 11th October, Macag has commenced to fill the land. The photographs exhibited to the affidavits of Roger David Freeman and Dean Melville Hatchard disclose, at least to me, that a substantial commencement has been made in the process of filling. Significant portions of the land have been cleared of vegetation, some benching work appears to have been undertaken and fill deposited on the land surface. Although clearly commenced, I gain the impression, from the photographs, that the work of filling the land is, at the moment, far from complete.

11 The Commission contends that the filling of the land constitutes "development" as defined by Section 4 of the Development Act, and that such development is being undertaken without approval contrary to Part 4 of the Act.

12 The provisions of subsection 85(4) of the Act provide that the Court should grant leave to serve a summons only if it is satisfied that the respondent has a case to answer. The approach to be taken by the Court when determining an application for such leave has been dealt with in a number of cases. Perhaps the best known is the Queen v Judge Stevens ex parte Tip Top Dry Cleaners Pty Ltd (1986) 43 SASR 1. Thus, in this case and applying the various tests as propounded by Olsson J in the Tip Top case, I must ask myself whether, on the assumption that all of the evidence set out in the affidavits is accurate and drawing, in favour of the applicant Commission, all inferences which are reasonably open, the evidence in the affidavits is capable of satisfying me, on the balance of probabilities, that Macag Holdings is undertaking development on the subject land without approval as required by the Development Act. This test calls upon me to formulate, with some care, the inferences which I have drawn from the affidavits. As far as is relevant, the inferences which I have drawn are as follows:-

* Macag is the owner of the land the subject of these proceedings.

* At all relevant times it has been and continues to be the intention of Macag to divide the land into four allotments suitable for residential use, plus a road.

* It is the intention of Macag to fill the whole of the valley. With the exception of a small portion at the northern end (the toe of the fill) it is intended that the final level of the fill will be such as to create a flat (although not perhaps, level) surface across the land from both east to west and north to south.

* The fill is to be both compacted and stabilized in a manner which will render the land suitable for the construction of dwellings.

* The purpose of the fill is to create a land surface suitable for the proposed land division and, thereafter, the creation of allotments upon which, in all probability, dwelling houses will be constructed.

13 In my view, these inferences are reasonably open on the facts set out in the affidavits. In so saying, I have not overlooked Mr Manos' submission that, at present, no application to either subdivide the land or build any dwelling upon it lies before any relevant planning authority and that there is no evidence upon which a conclusion that the purpose of the fill is to provide sites for the construction of dwellings can be reasonably drawn. Although I accept that there are no such applications, I have come to the conclusion that the inferences which I have listed may be reasonably drawn from the affidavits filed in support of the application.

14 Section 4 of the Development Act includes the following definitions:-

"'building' means a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia), whether temporary or permanent, moveable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan permanently fixed to land."

"'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

but does not include any work or activity that is excluded by regulation from the ambit of this definition."

"'construct' in relation to a building, includes-

(a) to build, rebuild, erect or re-erect the building;

(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."

15 Ms Murphy submitted that the placement of the fill on this land constitutes development for three reasons, the first of which lies in the Second Schedule to the Development Regulations. The definition of development found in Section 4 of the Act includes "an act or activity in relation to land ..... declared by regulation to constitute development". Regulation 6 of the Regulations declares such acts or activities by reference to the Second Schedule to the Regulations, paragraph 4 of which Schedule declares the following activity to constitute development, namely:-

"4. Without derogating from the operation of any other clause, the forming of a levee or mound with a finished height greater than three metres above the natural surface of the ground."

16 It is beyond dispute that, over significant portions of the land, the depths of fill will exceed three metres. At some places such depth is almost twenty metres. Ms Murphy submitted that, in the circumstances of this case, the fill constitutes a "mound with a finished height greater than three metres above the natural surface of the ground" as those words are used in paragraph 4. She referred to several dictionary definitions of "mound". The Oxford Dictionary defines a mound as being -

2. Heap or pile; large quantity (mound of rubble; a mound of things to do).

"1. An elevation formed of earth or sand, debri etc, overlying ruins, a grave, etc.

2. A tumulus or other raised work of earth dating from a pre-historic or long past period.

3. A natural elevation of earth, a hillock or knoll.

4. An artificial elevation of earth, as for as defence work, a dam or barrier, or any other purpose; an embankment.

18 Ms Murphy submitted that the terms of the definitions are such that a mound need not be elevated on all sides. Although the fill in this case is to abut the present surface of the land on three sides, it will, at its northern end, have a face rising approximately 20 metres above the natural surface of the land. In these circumstances, she submitted, it is a mound.

19 Mr Manos submitted that the fill, both as at present and when completed, will not constitute a mound as described by the definitions. It will not result in a hillock, a knoll or an elevation formed of earth. It will not be a heap or a raised mass. It will simply be the partial filling of a natural gully.

20 I think that Mr Manos is correct. The depositing of this fill in the gully will not, in my view, create a mound either as defined by the dictionaries or as regarded in common parlance. Hence I am of the view that it does not constitute an act or activity declared, by paragraph 4 of the Second Schedule to the Regulations, to fall within the definition of development.

21 Furthermore, I think there is much to be said for the view expressed by Mr Manos that paragraph 4 does not apply to fill in any event. He submitted, and in my view correctly, that paragraph 4 must be construed as part of the Second Schedule read as a whole. He pointed out that paragraphs 1, 2, 3 and 5 of the Schedule refer specifically to "excavating or filling", which words are, he said, conspicuous by their absence in paragraph 4. There is, I think, much to suggest that the conclusion to be drawn from this is that paragraph 4 relates to levees and mounds - formations which, generally speaking, are raised above the natural surface of the earth - rather than to fill placed in a depression in the natural surface. The situation would, of course, be different if the level of such fill rose to a height exceeding three metres above the natural surface, but such is not the situation in this case.

22 Ms Murphy submitted that the fill constitutes "development" as defined because it is a "building work". It is a building work, she submitted, because it involves the construction of a "building". It is a "building" within the meaning of Section 4 because it constitutes a "structure". In so saying, she does not rely upon the definition of "structure" for, in this case, it is of little assistance. The basis for her submission that it constitutes a structure lies in the judgement of the Full Court in District Council of Mallala v M & B Farmer Nominees Pty Ltd, judgement [2000] SASC 117 delivered on 11th May, 2000. That case involved the construction of a large dam - it is to have a capacity in excess of 10.34ML - and a loading pad to be some 50 metres long, 40 metres wide and 150mm high. The land lay within the Gawler River Flood Plain Policy Area as prescribed by the Council's Development Plan.

23 The principal judgement was delivered by Debelle J. His Honour was of the view that the dam constituted "development" because it constituted a "structure" as that term is used within the definition of "building". When determining whether it constituted a "structure", His Honour had regard to the definitions of "structure" in both the shorter Oxford English Dictionary and the Macquarie Dictionary. Those definitions are as follows:-

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

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

24 When deciding whether the dam proposed fell within the definitions to which he referred, His Honour took into account the size and method of construction of the proposed dam. He said this:-

"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 s4 of the Act constitutes development within the meaning of the Act."

25 The precise amount of fill to be deposited in this case is not disclosed. However, there is little doubt that it will be substantial. Clearly it will involve the placing of many thousands of cubic metres - perhaps hundreds of thousands of cubic metres - of rock and soil on the land. However, notwithstanding the substantial quantity of rock and soil involved, it will remain, at the end of the day, fill. There is, in my view, nothing in that portion of His Honour's judgement which suggests to me that I should regard the proposed fill as constituting a "structure".

26 His Honour described the question of whether the construction of the loading pad constitutes the construction of a "structure" - and thus development - as being a "nice question". At the end of the day, His Honour concluded that the loading pad constituted development, not because it will result in the construction of a structure, but rather because it will constitute the filling of land within a flood plain which is, by reason of paragraph 3 of the Second Schedule to the Regulations, "an act or activity which constitutes development". As I construe this portion of His Honour's judgement, there is nothing which leads me to the conclusion that the fill either already placed or to be placed in the valley on this land constitutes a "structure" within the meaning of Section 4 of the Act. I do not think that it is a "structure" either as that term is defined in the dictionaries or in general parlance. Thus it is neither a "building" nor a "building work".

27 Finally, Ms Murphy submitted that the placing of the fill constitutes "development" because it is "building work", ie, it is work or activity in the nature of "the making of any excavation or filling for, or incidental to, the construction, demolition or removal of a building."

28 As I have said, one of the inferences which I have drawn from the facts deposed in the affidavits is that the purpose of the placing of the fill is to create a level surface suitable for the division of the land into allotments, which allotments will in turn be suitable for the construction of a dwelling. However, equally important, I have not inferred that the dwellings will be built by Macag - in all probability, having created the allotments, Macag will sell them and the dwellings will be constructed by the allotment purchasers. Nor have I drawn any inference relating to the time at which such dwellings are likely to be constructed. Be that as it may, Ms Murphy put to me that the sole purpose of the placing of the fill is either incidental to or to provide for the construction of a dwelling and that, for that reason, its placement falls squarely within the definition of "building work".

29 Mr Manos argued that, because there are no applications for either subdivision or building approval before any authority, it is not open to me to find that the purpose of the fill is the creation of sites upon which to construct dwellings. However, I do not regard the issue of whether applications lie before planning authorities to be relevant - the question raised by the definition is whether the filling is for or incidental to the construction of dwellings. That is a question of fact to be determined in each case. As with all questions of fact which fall to be determined on the basis of a person's intention with respect to future acts, it is not easily resolved.

30 Having considered the matter, I have come to the conclusion that the question is principally one of proximity. Whilst I accept Ms Murphy's submission that the placement of the fill is for or incidental to the construction of dwellings, the real question is whether too much water must flow under the bridge before the buildings are constructed. The first step is the placement of all of the fill and its proper stabilization and compaction to render the land suitable for the construction of dwellings. Then comes the land division application. That may or may not be approved. If it is approved and although an earlier application (refused) proposed the creation of four allotments plus a roadway, it should not be assumed that any future land division approval will result in the creation of four allotments - it may be more, it may be less. If the allotments are created, applications for dwellings will follow. In all probability these applications will be for detached dwellings - this being the use most consistent with the Residential 625 zoning of the land - but that need not be the case. It will not be until the building applications are approved that the precise site of the prospective dwellings will be identified. After this, the then owner of the allotment may either excavate or bring in further fill in order to create a building site meeting his or her particular requirements. Thereafter, the construction of the dwellings may commence.

31 I think that the gap between the fill currently being and to be placed on the land and the ultimate construction of the dwellings is too big. In my view, the words "filling for or incidental to the construction ..... of a building" refer to the placement of fill to prepare a site for the construction of a particular building. By so saying, I do not wish to infer that every detail of both the siting, design and nature of the building needs to be known, but rather that the intention to construct the building on a particular site must be known and that the placement of the fill must be for the purpose of preparing the site for that building. Such is not the situation in this case - the construction of the dwellings is a long way down the track. The nature, location and site requirements of the dwellings is unknown. Two quite different development authorizations must be both applied for and issued before a single brick can be laid. When that brick will be laid is unknown. In all probability, that brick will be laid by someone different to and independent from the company currently undertaking the fill. This leads me to the conclusion that the construction of the buildings is too remote from the fill currently being placed on the land to support the conclusion that such filling is "for, or incidental to, the construction" of the dwellings. In my view, the placement of such fill may more appropriately be characterized as being a work or activity for or incidental to the division of the land. Thus, it is not a "building work" as defined by Section 4.

32 I acknowledge that a substantial quantity of fill is to be placed on the land. Its placement constitutes an undertaking of some substance. Nevertheless, I have come to the conclusion that the placing of such fill does not constitute "development" as defined by Section 4 of the Development Act and is thus an act or activity which can be legally undertaken without a development authorization being first obtained. Its placement on the land does not constitute a breach of the Development Act.

33 I am not satisfied that Macag has a case to answer. The application for leave to issue the summons is refused. I order accordingly.