VERDOUW v CITY OF UNLEY No. SCGRG-00-791 [2000] SASC 410

3 The defendant determined, for the purposes of s 38 of the Development Act 1993 that the development was a Category 1 development. That meant that the Council could determine the application without giving notice to the adjoining occupiers and without giving any public notice at all. However, it did give notice of the application to the plaintiff. It allowed the plaintiff to make a written representation against the granting of consent and also allowed the plaintiff to appear at the Council meeting to oppose the application.

4 On 26 July 1999 the Council granted both Development Plan consent and Building Rules consent, and a Planning Decision Notification was issued on 29 July 1999.

5 Various proceedings concerning the granting of that consent were then taken by the plaintiff in the Environment Resources and Development Court ("the ERD Court"). It is not now necessary to describe those proceedings or their course. The plaintiff then commenced these proceedings on 23 August 2000 seeking a declaration that the development the subject of the application on behalf of Mr and Mrs Mere should properly have been treated by the defendant as a Category 3 development, and an order in the nature of certiorari to quash the Council's decision.

6 Rule 98.06 of the Supreme Court Rules requires that an application of this nature be brought within six months from the date when grounds for the review first arose. A Judge of this Court has made an order extending the time within which to commence the proceedings to 23 August 2000.

7 The assignment of a proposed development to either Category 1 or 2 has important consequences as to the giving of notice to others of the application, the rights of third parties to make representations, both written and oral, to the planning authority, and as to whether a right of appeal to the ERD Court is conferred on third parties. A development is a Category 3 development if it is neither Category 1 nor Category 2: s 38(2)(b).

8 Section 38 of the Act requires that, for a Category 3 development, notice of the application must be given in accordance with the regulations to (among others) an owner or occupier of each piece of adjacent land, to any other owner or occupier of land which, according to the determination of the authority, would be directly affected to a significant degree by the development, and to the public generally. Any member of any of those classes of persons may make written and oral representations to the planning authority in respect of the application. Persons who make representations may only appeal to the ERD Court against the decision of the planning authority if it relates to a Category 3 development: s 86(1)(b). There is no third party appeal in respect of a Category 1 development. Thus, the Act creates a hierarchy of increasing difficulty in obtaining Development Plan consent according to whether the development is classified Category 1, 2 or 3.

9 The question for determination is whether this development was properly classified as a Category 1 development.

10 Part 1 of Schedule 9 of the Development Regulations 1993 describes what comprises a Category 1 development. Clause 2 of Part 1 of Schedule 9 relevantly reads:

"2. (1) Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises -

(i) a detached dwelling, or of single storey dwelling (or single storey dwellings); or

(ii) a two-storey semi-detached or row dwelling; or

(b) the alteration of, or addition to, a building so as to preserve the building as, or to convert it to, a building of a kind referred to in paragraph (a); or

(f) a kind of development which, in the opinion of the relevant authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development."

11 There is no suggestion that the Council directed its mind to either of the questions raised in paragraph (f), so that can be put aside. The question is whether the development was the alteration of, or addition to, a building so as to preserve the building as (in this case) a detached dwelling.

12 In Schedule 1 of the Development Regulations, "detached dwelling" is defined as follows:

"'detached dwelling' means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation."

"Dwelling" is defined as meaning "a building or part of a building used as a self-contained residence".

13 Mr Manos, counsel for the plaintiff, argued that an addition to a building to preserve it as a dwelling, for the purposes of clause 2(1)(b) of Schedule 9, is limited to additions to a building used for everyday living or for human habitation. It would include an addition such as a family room, an extra bedroom, a bathroom or a kitchen renovation. He argued that a carport cannot be part of a dwelling. It does not preserve the building as a dwelling. It is not intrinsic to the dwelling. A dwelling, he argued, is something where human habitation occurs. A carport is not used for human habitation but for the storage of a motor vehicle.

14 The difficulty with that argument is that in many dwellings there are areas which might be said not to be areas of human habitation. Many houses have below ground or above ceiling storage areas, or both, which would not properly be described as parts of the building where human habitation occurs. They would, nevertheless, be regarded as part of the dwelling and for use in association with or ancillary to human habitation of that dwelling. Such areas do not render the building any the less a dwelling. Indeed, they may enhance its use as such.

15 The same may be said of a verandah. It obviously becomes part of the dwelling. It is not essential to human habitation. It adds to the amenity of the dwelling by providing shelter, not necessarily for residents of the dwelling, but perhaps for their personal property. The distinction between that and an attached carport is difficult to see. The carport does not detract from but enhances the building's use as a dwelling. By its erection, a carport preserves the building as a detached dwelling.

16 As Mr Hayes QC, for the defendant, pointed out, anomalies arise from the plaintiff's interpretation of Clause 2 of the schedule. If Mr and Mrs Mere applied for consent to build their existing house and proposed carport, and if it complied with the conditions contained in Table Un1 of the City of Unley Development Plan (which conditions are not unusual conditions for detached dwellings), the whole building would be a complying development under the Development Plan. As such it would be a Category 1 development by virtue of Clause 1 of Schedule 9 of the Development Regulations. No notice of the application would need to be given, and no third party rights of representation would be conferred. There would be no third party appeal to the ERD Court. Yet, if the attached carport were sought to be added later, that addition, on the plaintiff's argument, would have to be treated as a Category 3 development, requiring general public notice, conferring a right upon any member of the public to make representations, including an opportunity to appear personally or by representative to be heard in support of the representation, and conferring a right of appeal to the ERD Court by a person who has made a representation.

17 Mr Manos sought to overcome that anomaly by saying that in such a case, it was open to the Council to act under paragraph (f) of clause 2(1) of Schedule 9 and to form the opinion that the development "is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality....". However, that will not always be a satisfactory way of dealing with such applications, and does not overcome the anomaly that the minor addition has more procedural hurdles to jump than the primary development. There is no policy reason why Schedule 9 should be interpreted that way. Indeed, there are good policy reasons to the contrary: cf Manuel v City of Charles Sturt (1999) 75 SASR 284 at [12].

18 The anomaly presents itself quite starkly in this case, where the house with its existing carport would require fewer hurdles for approval than the mere replacement of the existing carport. Furthermore, if the application were merely to alter the existing carport, it would also be a Category 1 development.

19 Mr Manos also relied on the principle that, in the case of ambiguity, any exception to the statutory obligation to give notice should be strictly construed: R v SA Planning Commission; Ex parte City of Burnside (1986) 45 SASR 487 at 492; Manuel v City of Charles Sturt (supra) at [13]. That might well be so where, as in the City of Burnside Case, the then Development Control Regulations under the Planning Act 1982 imposed a general regime of public notice, with certain exceptions from that requirement being contained in Regulation 38. There is no doubt that in such circumstances the regulation must be strictly construed where it involves the removal of rights otherwise conferred by the legislation in question.

20 The structure of the Development Act 1993 is different. Section 38 prescribes three categories of development and how it is to be determined that a particular development falls into the appropriate category. Subsection (3) provides that the subsequent provisions of the section do not apply to an application for consent in respect of a Category 1 development. There follow the obligations which apply to Category 2 and Category 3 developments. The structure of the Act is not to confer and then to qualify rights to notice and rights of appeal. In the case of Category 1 developments such rights are never conferred.

21 In my opinion, that principle does not apply to the construction of Part 1 of Schedule 9. Even if it did, however, it would not be necessary to rely on it in this case, as the meaning of the Schedule, as it applies in this case, is reasonably clear.

22 What I have said applies only to the situation where, as here, the application concerns an addition or alteration to an existing building. It must be and form part of the same building. What I have said would not necessarily apply to a free-standing carport or garage. For that reason, it is possible to distinguish the decision of Debelle J in Hall v Corporation of the City of Burnside [1999] SASC 536. That case involved proposed additions and alterations to a dwelling, the importation of a large amount of filling, the enclosing of a free-standing carport to provide a two car garage and the construction of a portico to provide undercover access from the garage to the house. There were ten steps which led up from the house to the existing carport. Debelle J described that part of the development as follows:

"The portico is to be constructed on that higher level. It will be a separate building from the garage but linked to it by an enclosed area. The portico will be joined to the dwelling by an enclosed stairway descending from the portico to the dwelling. The roof for the portico will connect with the roof of the dwelling and the roof of the garage."

23 In rejecting an argument that the development fell within clause 2(1) of Schedule 9 Debelle J said (at [19]):

"A garage is not a dwelling. Instead, it is incidental to the use of the dwelling. The enclosure of the carport to make it a garage and the linking of it to the existing dwelling do not either preserve the dwelling or convert the garage to a dwelling. For that reason also, the development is not a category 1 development."

24 In that case, the garage was not considered to be part of the building comprising the dwelling. The linking did not make it part of the dwelling or convert the otherwise free-standing garage to a dwelling. In order to qualify as a Category 1 development under Clause 2(1)(b) of Schedule 9, the development must first be part of the same building. In Hall's Case it was not. In this case it is.

25 Mr Manos placed substantial reliance on a decision of Commissioner Wallman of the ERD Court in May v City of Mitcham (Unreported, 19 December 1996, Judgment No OE338). Obviously, I am not bound by that decision. In my opinion, in ordering that the appeal be struck out without considering the merits, it was wrongly decided, and the reasoning of the Commissioner is flawed. That is not to say that the Council's decision in that case was wrong.

26 The application was for approval of demolition of an existing dwelling and the erection of what were described as "two dwellings within what would in fact be a single building on an allotment....". The Commissioner described the dwellings comprising the proposed development as having identical layouts and elevations, one being a mirror image of the other, with "double 'carports' (in fact garages) with each dwelling, attached to and under an extension of the roof over that dwelling (being) joined by a common wall extending up to and just above the surface of the roof; the whole forming a united building". The Council refused consent to the application on the grounds that the proposed development would be detrimental to the character and amenity of the locality, and that, being for the development of "semi-detached dwellings", the proposal would be in direct conflict with the prime objective for the zone, which required detached dwellings on individual allotments at low densities.

27 Commissioner Wallman concluded that the development was not for semi-detached dwellings but for a residential flat building. He reached this conclusion because the development did not comply with paragraph (b) of the definition of "semi-detached dwelling" in the Development Plan. That relevantly defined such a development as being a dwelling "comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building". Because the Commissioner concluded that the application was for development of a residential flat building, it was a non-complying development and there was no right of appeal: s 35(4) Development Act 1993.

28 The Commissioner noted (at page 13) an earlier decision of the ERD Court (Homestead Award Winning Homes Pty Ltd v The City of Marion (Unreported, 11 September 1996, Judgment No OE 367) where a proposal was properly characterised as being for semi-detached dwellings "as a matter of commonsense and practicality", having regard to the Court's views that the garages were in that case integral parts of the dwellings joined by a firewall. Commissioner Wallman then described the "site" of each dwelling as comprising the land beneath the dwelling and its garage and the curtilage or enclosed yard at the rear of the proposed garage and dwelling and along the outer side of the dwelling. Somewhat inconsistently, however, he then found that the "dwellings" would not be joined together because they would be separated by "garages which would not be components of the dwellings with which they are intended respectively to be associated". He concluded (at page 15) that a garage is not an extension of the dwelling with which it is associated "and it is not available, nor intended to be used, for human habitation". For reasons I have already given, it is clear that not every part of a dwelling is necessarily used for human habitation.

"Undoubtedly, the double garages are substantial components of the development as a whole and provide an important facility with each dwelling. But important as it may be for the housing of a vehicle or vehicles, garden maintenance equipment and the like, a garage is not such an essential element of residential use as are the rooms of a typical dwelling. A garage may be attached to, and under the same roof line as, a dwelling or it may be a free-standing outbuilding, but its function in each case would be identical, so the placement of a garage under a roof connected directly to, and forming an integrated addition to, the roof over a dwelling does not make the garage a part of a 'dwelling'."

30 The Commissioner, in my opinion wrongly, described the garage component by reference to its use or function, rather than by a consideration of whether or not it was part of a "single building", as required by the definition. He would have been constrained to hold that if the dwellings were joined by a common wall with the carports on the outer perimeters, they would have been semi-detached dwellings, not a residential flat building. That demonstrates the absurdity of his conclusion. The decision also has the curious result that if a garage is part of or integrated with (say) a detached dwelling, it will not be part of the dwelling for the purpose of establishing the appropriate category of the development. The dwelling itself will fall into Category 1 but the garage will not.

31 I do not consider that Mr Manos can gain any support from the decision in that case.

32 In my opinion the application for development consent in this case was in respect of a Category 1 development. Accordingly, the decision of the respondent was validly made and the plaintiff's application for judicial review must be dismissed.