DEVELOPMENT ASSESSMENT COMM v MACAG HOLDINGS PL No. SCCIV-01-247 [2001] SASC 189 - SASC 2001 case summary — Zoe

[124]

Mr Hayes then argued that if the definition of "building work" was given the meaning for which the Solicitor-General contended, the Act would be unworkable for another reason. When an application is made for development consent in respect of a development which must be assessed against the provisions of a Development Plan, the relevant authority must "determine the nature of the development": Regulation 16(1). The manner in which an application for consent is dealt with depends on whether the development is "complying" or "non complying": Regulation 17. Other decisions relating to the manner in which an application is dealt with depend upon an authority categorising or determining the nature of a development. Mr Hayes submitted that the necessary decisions could not be made with any confidence, and that a proposed development could not be meaningfully assessed against the Development Plan, if the filling in question amounted to development. The authority would have to treat the proposed development as being the filling of land for the purpose of an uncertain number of houses, on unidentified sites, the houses being of an unspecified size and appearance. The authority could not follow the required decision making processes with such a general application. The effect of giving the Solicitor-General's suggested meaning to "building work" would be to force a person to apply, at an inappropriately early stage of a proposal, for development consent. The applicant might be unable to identify the proposed use of land, other than in a very general way, perhaps residential housing, or perhaps simply buildings. As well, he suggested, the applicant would be bound later by the description given to the proposed use when the application was made. There would be problems if an approval were granted. If the filling of land in the present case were approved, there would be uncertainty about what flowed from that. Would it be an approval of filling for the purpose of subsequent housing development, or for buildings generally, or for something else? In other words, Mr Hayes' submission was that treating filling as building work because it was filling for the construction of buildings generally, and not for the construction of an identified building on an identified site, would give rise to a requirement to make decisions under the Regulations and under the Act that could not satisfactorily be made in respect of such a loosely identified form of "development".

[128]

It seems to me that an applicant for development consent can make an application providing details about the proposed use of the land, and that the relevant authority can then assess the application on that basis. In the present case the proposed development could be described as the cutting and filling of land for the purpose of the proposed construction of dwelling houses on the filled land, the application stating that development consent would be sought at a later stage for the subdivision of the land and for the erection of dwelling houses. I am not persuaded that such an application could not be properly dealt with under the Regulations, and properly assessed against the Development Plan, treating it as filling for the stated purpose. The application would of necessity be treated and assessed on the basis that it was for substantial filling of the land, and also by reference to the proposed ultimate use of the land. A consent to development so described would not prevent the applicant from later changing the proposed use of the filled land, although the applicant would run the risk that the authority might not consent to the changed use of the filled land. If subsequent applications by the applicant were nothing more than a detailed working out of what was originally envisaged, one would expect the authority to grant further consents. It also needs to be born in mind that an authority has a wide power to grant consents subject to conditions: s 42 of the Act. If the applicant for consent is unable or unwilling to provide any details about the type of building that will be erected on the land, then I would expect the Authority to deal with the application on the basis that it is for consent to the filling of the land for the erection of buildings. That might lead to the application being rejected, on the basis that only buildings of a certain type would be consented to on the land, or it might lead to a consent conditional on any buildings erected later being of a certain type. I realise, of course, that this situation could be manipulated by an applicant, and consent might be gained to the placing of filling with a view to erecting buildings of a type for which the authority was unlikely to grant a consent, by concealing the type of building ultimately intended. At the same time it needs to be borne in mind that the filling of the land will constitute "development" only if it is the filling of land for the purpose of the construction of buildings.

Parties

Applicant/Plaintiff:

# DEVELOPMENT ASSESSMENT COMM

Respondent/Defendant:

MACAG HOLDINGS PL No. SCCIV-01-247 \[2001\] SASC 189

Legislation Cited (6)

Development Act 1993(SA)

Development Regulations 1993(SA)

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

Development Act 1993(SA)

Development Regulations 1993(SA)

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

Cases Cited (16)

DEVELOPMENT ASSESSMENT COMM v MACAG HOLDINGS PL No. SCCIV-01-247 [2001] SASC 189 (19 July 2001)

R v Judge Stevens, Ex parte Tip Top Drycleaners Pty Ltd (1986) 43 SASR 1;

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446;

Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285;

D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582;

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, applied.

Development Assessment Commission v Macag Holdings Pty Ltd [2000] SAERDC 81;

Development Assessment Commission v Macag Holdings Pty Ltd [2001] SAERDC 3;

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423;

Carr v Finance Corporation of Australia [1981] HCA 20; (1981) 147 CLR 246, considered.

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378;

Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139;

D A Christie Pty Ltd v Banker [1996] VicRp 89; [1996] 2 VR 582;

North Ganalanja Ablriginal Corporation & Anor v State of Queensland (1995) 132 ALR 565;

McHenry v Lewis (1882) 22 Ch D 397;

JT Stratford & Son Ltd v Lindley and Another [1965] AC 269, considered.

Development Act 1993 s 4; s 6; s 32; s 33; s 42; s 44; s 85(1); s 85(4); s 85(4); s85(17);

Development Regulations 1993 r 16; r 17; sch 2 cl 1; sch 2 cl 4; sch 3 cl 4(1)(a); sch 4 pt 2 cl 2;

Development Regulations 1993 sch 5 cl (1)(4)(a); sch 8 cl 1(D); sch 10 cl 3 sch Pt B; sch 14 cl 1(j);

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

Prestige Car Sales Pty Ltd v Corporation of Town of Walkerville (1979) 20 SASR 514;

Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506;

Leverington v State Planning Authority [1970] SASR 387, considered.

(1986) 43 SASR 1

(1950) 81 CLR 446

(1963) 109 CLR 285

(1939) 62 CLR 464

(1966) 117 CLR 423

(1981) 147 CLR 246

(1993) 177 CLR 378

(2000) 50 NSWLR 139

(1995) 132 ALR 565

(1979) 20 SASR 514

(1987) 45 SASR 506

(1995) 184 CLR 19

DEVELOPMENT ASSESSMENT COMM v MACAG HOLDINGS PL No. SCCIV-01-247 [2001] SASC 189

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Judgment (249 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (16)

DEVELOPMENT ASSESSMENT COMM v MACAG HOLDINGS PL No. SCCIV-01-247 [2001] SASC 189 (19 July 2001)