PRINTER FRIENDLY VERSION

Environment, Resources and Development Court of South Australia

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Application for provisional development plan consent to construct a dwelling on land where a dwelling already exists - processed as not complying by the Council - appeal lodged from that decision - preliminary argument as to whether proposed development a detached dwelling.

Development Act 1993, referred to.

McNamara v City of Charles Sturt & Attard [2001] SASC 368; Polites v City of Holdfast Bay & Anor (No 2) (1998) 72 SASR 475, considered.

 

 

1. Peej Nominees Pty Ltd ("the appellant") applied to the Alexandrina Council ("the Council") for provisional development plan consent to build a dwelling on the land at 10 Wells Road, Goolwa ("the land"). The land is 45.2m deep and has a frontage to Wells Road which is 22.86m wide. There presently exists on the land a detached dwelling and two large sheds, which are labelled on the plan as "existing boat storage". The Council informed the appellant, by letter dated 5 October 2004, that it intended to process the application as being for a kind of development which is not "complying" and which is a Category 3 kind of development pursuant to Schedule 9 of the Development Act 1993. The appellant appealed from that decision. The appellant’s contention is that its application is properly characterised as a complying development. The appellant also asserts in its notice of appeal that the development application should be processed as a Category 1 kind of development.

2. The land is within the Residential Zone in the Council’s Development Plan. Principle 11 of the Residential Zone states:-

"11 The following kinds of development are complying in the Residential (Port Elliot and Goolwa District) Zone subject to compliance with conditions comprising, where applicable:

(a) a car parking area being established on the site at a rate not less than that prescribed in Table Alex/3;

(b) no building of more than 8.0 metres in height being erected;

(c) no building being erected, added to or altered on any land so that any portion of such building is constructed nearer to the existing boundary of a road than the distance prescribed for each road, or portion thereof, in Table Alex/2;

(d) the external walls of any detached dwelling, or of any addition or alteration to a detached dwelling, being principally composed of masonry, brick, stone, timber, rendered masonry, or asbestos cement cladding;

(e) no wall of a dwelling being erected, added to or altered so that any portion of such wall will be erected, added to or altered nearer than 1.0 metre to any side boundary of the allotment on which it is to be erected, added to or altered;

(f) no building being elevated on posts, or lacking a solid brick, stone or concrete block base upon the perimeter footings enclosing the space between the floor of the building and the ground surface; and

(g) the planning authority having given a certificate for development, other than a detached dwelling, that it is satisfied that:

(i) the number, design and location of access points to a road or thoroughfare from the site will ensure the safety of the public and free flow of traffic in the locality;

(ii) the layout of the car parking area will be safe and convenient; and

(iii) suitable landscaping is to be provided and maintained."

3. It was common ground between the parties that the proposed development complies with provisos (a) to (f) of Principle 11. The question was whether the proposed development is a "detached dwelling". Schedule 1 of Development Regulations 1993 defines "detached dwelling":

"‘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;"

4. The land faces south-west. The existing dwelling sits in its southernmost corner and is set back 6m from Wells Road. A Colorbond fence runs along the side of the house, returning along the rear of the house to the boundary of the land with the allotment to the south-east of it. A curtilage has thus been created for the existing dwelling which has a 10.8m frontage to Wells Road. It is proposed to extend that portion of the Colorbond fence which runs along the non-boundary side of the existing house to the rear of the allotment. The effect of this would be to create a physically discrete piece of land with a 9.7m frontage to Wells Road, containing only a boat storage shed to the rear. The front of this piece of land is the proposed location for the new dwelling.

Site

5. It is not proposed that the two dwellings which would be present on the land if the proposal were to proceed would share any land for any purpose. There is no need for shared access or the like. Mr Broderick, counsel for the Council, pointed out that a larger gate in the Colorbond fence at the rear of the existing dwelling would be needed if vehicular access were to be gained to the boat storage shed behind the existing dwelling, but that could easily be achieved. I am satisfied that each dwelling would have its own site within the meaning of that word in the definition of "detached dwelling". In so finding, I have had regard to the discussion upon the meaning of the word "site" by Debelle J in Polites v City of Holdfast Bay & Anor (No 2) (1998) 72 SASR 475.

Held

6. In McNamara v City of Charles Sturt and Attard [2001] SASC 368, Bleby J considered the definition of "detached dwelling" in Schedule 1 of the Development Regulations and said at page 5:

"The requirement contained in the definition of ‘detached dwelling’ is that the site is ‘held exclusively’ with that dwelling and has a frontage to a public road. That suggests something more than a mere physical barrier, and incorporates notions of tenure and exclusive rights to occupy the land in question. The rights over the area concerned cannot be subject to interference or rights of user by any person other than the owner of the dwelling."

7. At the very least, then, a lease would be required before it could be said that a site was "held exclusively" with the dwelling. The development application does not include a proposed lease or any other arrangements for the conferral of tenure. The applicant, through its counsel Mr Levinson, expressed itself to be unable to make a commitment to any particular arrangement pursuant to which the proposed house would be occupied. Mr Levinson referred to the possibility that a lease of the dwelling and its site could be granted for a period of less than 6 years (including renewals), without the requirement for development approval for the division of an allotment. The division of an allotment is a form of development under the Development Act 1993, and "division" is defined in s.3 of the Act to include:-

"(c) the conferral or exercise of a present right to occupy part only of an allotment under a lease or licence, or an agreement for a lease or licence, the term of which exceeds six years or such longer term as may be prescribed, or in respect of which a right or option of renewal or extension exists so that the lease, licence or agreement may operate by virtue of renewal or extension for a total period exceeding six years or such longer period as may be prescribed; or ..."

8. Clearly, however, no such arrangement is presently in contemplation as a matter of fact. The appellant is presently pursuing a proposal to divide the land into two allotments. If a lease for, say, 6 years had been arranged, then the question would arise as to whether such an arrangement would be sufficient, given that the end of the lease and the inevitable reversion of the whole of the interest to the owner, would be foreseeable at the end of the term.

9. The appellant has failed to show that the proposed dwelling would, as a matter of fact, be "held exclusively" with its site. The proposed development is not therefore a "detached dwelling" under Principle 11, and is not a complying kind of development.

10. Mr Broderick pointed to Principle 6 of that section of the Development Plan entitled Part C - Port Elliot and Goolwa.

"6. Development which would result in two or more detached dwellings on the same allotment should not be undertaken."

11. Mr Broderick suggested that Principle 6 could be used to assist in the interpretation of "detached dwelling" in Principle 11 of the Residential Zone. I reject this submission. Where the application of the definition of a term from the Development Regulations to lists of complying or non-complying kinds of development in the Development Plan brings about a clear and unambiguous result, it is not necessary to call in aid other provisions of the Development Plan.

12. The issue of whether the proposed development falls within Category 1 or Category 3 has yet to be addressed by counsel, so I will hear the parties further.