Issue 35 July 2007

PLANNING & ENVIRONMENT BRIEFLY

In this issue:

• If at first they don’t remediate then expiate!
  Changes to the Development Act 1993.
• Case Law Update - A room with a view?
• Case Law Update – What is a structure?
• Site Contamination – Who Pays?
• How significant is a Regulated Tree?
• If a tree falls in a forest…
• New Open Space Contribution Fees
• Climate Change Legislation
• Norman Waterhouse Residential Seminar – The Lakes Resort Hotel, August 3 and 4

If at first they don’t remediate then expiate!
Changes to the Development Act 1993.

Amongst the recent changes to the Development Act 1993 (“the Act”) which commenced operation on 26 April this year, was the insertion of an additional power for a relevant authority to deal with enforcement matters under Section 84 of the Act.  More particularly, sub-section 11 of Section 84 was amended to include, beneath the sub-section, the words “expiation fee: $750.00”. By including those words Parliament has granted relevant authorities the power to issue expiation notices pursuant to the Expiation of Offences Act 1996, to a person who contravenes or fails to comply with a direction contained within an Enforcement Notice.

Previously if a person who had allegedly contravened Section 32 or 44 of the Act by undertaking unauthorised development, had been issued an Enforcement Notice (“the Notice”) by a council, and  failed to comply with a direction contained in the Notice, the options available to the Council  were to either  cause the necessary work to be undertaken on the land and attempt to recover the reasonable costs and expenses incurred in undertaking that work from the person, or alternatively, use the failure to comply as grounds for the institution of further enforcement proceedings pursuant to Section 85 of the Act. In addition the Council could commence prosecution proceedings for a failure to comply with a direction in the Notice.

Councils now have the benefit of a statutory scheme whereby a failure to comply can  be the subject of an expiation notice instead of a prosecution. An expiation notice may be issued in addition to a council carrying out the work required by the Notice itself or a council instituting any further enforcement proceedings pursuant to Section 85 of the Act.  Briefly, here are some important points to consider when issuing expiation notices for a failure to comply with a direction in a notice issued pursuant to Section 84 of the Act.

An expiation notice may relate to up to three alleged offences arising out of the same incident.  Further an expiation notice must, amongst other things, be in the prescribed form,  specify the fee of $750.00 to be paid within 28 days from the date of the notice and must also specify to whom the expiation fee is payable.  Councils must be careful however to avoid duplicity of proceedings.

In this regard councils must be mindful of Section 15(1) of the Expiation of Offences Act 1996 which provides that if an offence to which an expiation notice has been issued has been expiated the alleged offender can not be prosecuted for that offence or any other expiable offence arising out of the same incident. In addition councils should also ensure that any expiation notice is issued within the statutory time limit ie 6 months from the date of the alleged offence.

There is an important distinction to note in that the power to expiate an offence has not been given for the primary works which comprised the breach of the Act for which the notice was originally issued, but rather for the separate offence of the failure to comply with the direction.  Councils should be familiar with expiation notices and should already have the prescribed form at its office.  The Expiation of Offences Act 1996 sets out who may issue expiation notices and councils should ensure that appropriate delegations are in place for the issuing of expiation notices. For further information relating to the Expiation of Offences Act 1996 and the procedures for the drafting, issuing and enforcement of expiation notices please contact either Paul Kelly or Nick Robertson at Norman Waterhouse.

For further information please contact Nick Robertson on 8210 1279  or
nrobertson@normans.com.au; or Paul Kelly on 8210 1248 or pkelly@normans.com.au.     

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Case Law Update - A room with a view?

Hutchens & Totos v City of Holdfast Bay & Mila Enterprises [2007] SASC 238

Two third party objectors have successfully appealed to the Supreme Court against the Environment Resources and Development Court’s decision which confirmed the Council’s decision to approve the construction of a three storey building comprising a take away food shop and two dwellings on the Esplanade at Seacliff. The objectors lived in a two storey residential complex located immediately behind the proposed development site.

The central error of the ERD Court as identified by the Honourable Justice Debelle was that it had failed to consider the entitlement to and the importance of views of the coast of the objectors in its consideration of the proposed development. His Honour’s recent judgement confirmed that while there is no common law right to a view, the capacity to protect an existing view will depend on the terms of the relevant planning controls in the area. His Honour commented that:

“…Planning controls which expressly or by implication require regard to be had to the views enjoyed by those who already reside in a locality will be used in appropriate cases to prevent the construction of a building which will obstruct those views. Where such controls exist, a planning authority must have regard to them…”

Following this decision, provisions of a development plan which seeks the preservation or protection of the character and amenity of a locality will be sufficient to require a planning authority to have regard to views enjoyed by residents which might be obstructed by a proposed development even when those provisions are not expressly found in the relevant zone but are relevantly contained in other parts of the plan.

An additional point in relation to Development Plan interpretation was made by His Honour when he considered a previous ERD Court case of Alan Sheppard Homes Pty Ltd v City of Burnside & Ors ERDC No. 249 of 1996 and found that the ERD Court had erred in reasoning that where a development plan allows development to be built to a height above that which exists in the locality, provisions which seek to ensure the harmonisation of development with the prevailing character cannot be interpreted to obviate any change to that character. To do so, His Honour said, was to assess a proposal based on a presumption in favour of the development instead of more appropriately interpreting and applying the provisions of the plan as a whole to a proposal.  

For further information please contact Nick Robertson on 8210 1279 or
nrobertson@normans.com.au.

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Case Law Update – What is a structure?

Carter v Mid Murray Council [2007] SASC 145

The recent Supreme Court decision of Carter v Mid Murray Council [2007] SASC 145 has clarified what amounts to a “structure”, the erection or construction of which will require development approval under the Development Act 1993.  The Court rejected the “will the Building Rules apply?” test in favour of a fact and degree test.

Carter concerned the replacement of a graded-earth airstrip with a channel-cut and rubble-filled and compacted airstrip, constructed to a standard similar to an unsealed road.  Reversing the reasoning of the ERD Court, the Court held that upgrading of the airstrip was “building work” within the meaning of the Act because it involved the construction of a “structure”. 

The original airstrip was not considered a structure.  The difference between the two was that the upgraded airstrip involved work which could fairly be termed “construction” (such as filling with rubble and compaction) whereas the original airstrip did not. The Court observed that the Act treated the construction of a private road as development and that the construction of an air-strip was similar, such that it is consistent with the scope and purpose of the Act that the airstrip be considered a structure and therefore development.

The Court also noted that the applicant could not take advantage of the “repair or maintenance of a building” exemption in Schedule 3 in relation to the upgrading works because the relevant clause refers to “building” in its strict sense, rather than its extended “buildings and structures” sense.  Additionally, total replacement of something is not “repair” or “maintenance” of that thing; it is replacement and therefore the works fall outside the exemption.

For further information please contact David Billington on 8210 1263 or
dbillington@normans.com.au.

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Site Contamination – Who Pays?

Environment Protection (Site Contamination) Amendment Bill 2007

The Environment Protection (Site Contamination) Amendment Bill 2007 (“the Bill”) was introduced and read by the South Australian Parliament for the second time on the 1 May, 2007. The Bill is proposed to amend the Environment Protection Act 1993 (the “Act”) and if passed, may be assented to later this year.

The Bill as introduced this year is by and large the same as the Draft Environment Protection (Site Contamination) Amendment Bill 2005 (the “Draft Bill”), however, with a few key differences.  One of the main differences most relevant to Local Government is the deletion of proposed section 103H which contemplated that in the interest of equity and efficiency the Environment Protection Authority (the “EPA”) could determine that a local Council was the appropriate person to be responsible for the assessment and remediation of contaminated sites in their constituency, notwithstanding that Council was not the “polluter” or the land owner.

The Bill is modelled on the “polluter pays” principle which means, in essence, that the person who caused the contamination is at first instance liable and responsible for the assessment and remediation of the site, regardless of whether site contamination occurred prior to the Bill being passed. However, if the person cannot be found or no longer exists then the person who owns the land could then be appointed the appropriate person by the Authority.  An owner of contaminated land, can however, pass the responsibility for site contamination on if the land is sold in a ‘genuine arms length’ sale as a result of knowledge or suspicion that there was site contamination.

Of course a Council needs to be aware that as a body corporate it can still be liable for contamination it may have caused or for contaminated land that it may own.

Another key difference to the Draft Bill that is relevant to Councils, in the proposed Section 83A which requires that an owner or occupier of a site who becomes aware of existing site contamination that affects or threatens ground water to notify the EPA. This requirement also extends to site contamination auditors and consultants who may be engaged to asses the site. Failure to comply with this notification requirement may attract a $120,000 fine for a body corporate or $60,000 for a natural person.     
More information on site contamination can be viewed at the recently updated Environment Protection Authority’s website, www.epa.sa.gov.au/contamination.html which focuses on a broad range of site contamination related issues.

For further information please contact Felicity Niemann on 8217 1336 or
fniemann@normans.com.au.

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How significant is a Regulated Tree?

The Development (Regulated Trees) Amendment Bill 2007

The Government recently introduced the Development (Regulated Trees) Amendment Bill 2007 (“the Bill”). The amendments to the Development Act 1993 proposed by the Bill are largely similar to those from those proposed in a previous Bill, introduced in late 2006, however there are some differences. Under the amendments:

• More species of tree will be exempted from the application of the regulatory scheme;
• The existing notion of “significant trees” is replaced with a two-tier system of  classification and assessment "Regulated trees” and “Significant trees”;
• Regulated trees will be trees which meet a prescribed quantitative requirement (or those which are listed as Significant in a Development Plan).  A Regulated Tree will be subject to an assessment against prescribed criteria to ascertain if it is Significant. Trees can also be declared significant under the Development Plan;
• If a tree is Significant, applications for tree damaging activity will be assessed against Development Plan Policies;
• Councils will only be able to require applicants to provide arborists reports where the tree is significant and not when it is merely regulated unless special circumstances apply;
• This Bill introduces the concept of an Urban Tree Fund. Urban Tree Funds may (much like a Car parking Fund) be utilised so as to allow a developer who proposes to kill, destroy or remove a Significant Tree (or a Regulated Tree prescribed by regulation) to make a contribution to the Fund in lieu of planting a replacement tree;
• The Bill expands the scope of orders which might be made by the ERD Court when it finds that a person has undertaken a tree-damaging activity without approval.  Orders may be made requiring: that trees specified by the Court be planted by the person; that buildings and works erected, or vegetation planted, at or near the place of the damaged tree(s) be removed; and/or that the person nurture and maintain any trees ordered to be planted for a specified period (or make a payment towards such nurturing and maintenance).  Contravention of such an order would, in addition to being a contempt of Court, be a separate offence in its own right.

For further information please contact Martha Savva on 8210 1230 or
email msavva@normans.com.au.

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If a tree falls in a forest…

The Forest property (Carbon Rights) Amendment Act 2006 

The Forest Property (Carbon Rights) Amendment Act 2006 (SA)(“the Amending Act”) will come into operation on 1 July 2007. The Act amends the Forest Property Act 2000 (SA)(“the Forest Act”) to allow for the separation of forest and carbon ownership rights.

The original ownership framework provided for under the Forest Act, allows property owners to sell forest vegetation while retaining ownership of their land by way of Forest Property Agreements. Pursuant to Section 5 of the Forest Act, Forest Property Agreements provide Forest Property Owners with the right to commercially exploit the “carbon absorption capacity of the relevant forest vegetation.”

The Amending Act extends this ownership framework to allow for the separation of forest ownership and the ownership of the carbon sequestered within its forest vegetation. Thus a Forest (Carbon Rights) Agreement may be entered into whereby Forest Property Owners transfer ownership of the carbon absorption capacity of their forest vegetation to another person. That person may seek to own that carbon in order to set it off against their carbon emissions. This added flexibility mechanism has been adopted to benefit forest owners, who can realise an annual income flow from selling carbon rights, while maintaining the benefits of fruit production, wood investment and biodiversity plantings.                  

Environmentally conscious organisations are increasingly aiming to reach a ‘carbon neutral’ status with regards to greenhouse gas emissions. Public and private organisations throughout Australia are scrambling to offset their emissions through carbon forest sinks.

The statutory creation of Forest (Carbon Rights) Agreements presents a significant opportunity for carbon sequestration investment in South Australia. Investors are now able to benefit from forestry ownership and carbon income simultaneously.

Norman Waterhouse Lawyers has been involved in developing forest property agreements for the purposes of facilitating arrangements for carbon sequestration. Norman Waterhouse Lawyers is able to draft and advise on all Forest Property Act agreements and related matters.

For further information about issues covered in this article, please contact Paul Leadbeter on
8210 1297 or pleadbeter@normans.com.au; Pierina Reina on 8210 1273
or preina@normans.com.au

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New Open Space Contribution Fees

Development (Open Space Contribution Scheme) Variation Regulations 2007

As of 1 July 2007, new arrangements governing the rates of open space contribution fees payable in relation to land division applications come into effect. The Development (Open Space Contribution Scheme) Variation Regulations 2007 set new fees according to whether a council falls into a particular category, namely Outer Metropolitan Adelaide and Regional South Australia.

New Regulation  55A(2) prescribes varying rates of contribution payable pursuant to sub-sections 50(1)(d), (2)(c) and (7) of the Development Act depending on which category a council belongs to.  Under 55A(2), land to be divided within:

1. Metropolitan Adelaide attracts a fee of $4,125 for each new allotment or strata title delineated on the relevant plan that does not exceed 1 hectare in area;
2. Outer Metropolitan Adelaide attracts a fee of $2,860 for each new allotment or strata title delineated on the relevant plan that does not exceed 1 hectare in area; and
3. Regional South Australia attracts a fee of $2,405 for each new allotment or strata title delineated on the relevant plan that does not exceed 1 hectare in area.

The amendments are in line with recent changes to the Act and are intended to address parity issues which have arisen as a result of increasing land values in the metropolitan area.

For further information please contact Vasiliki Danambasis on 8210 1246
or vdanambasis@normans.com.au.

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Climate Change Legislation

The climate change and Greenhouse Emissions Reduction Act 2007 became law on 28 June, 2007. Paul Leadbeter and Pierina Reina will be discussing the impacts of the new legislation for local Government at the Residential Seminar.

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Norman Waterhouse Residential Seminar –
The Lakes Resort Hotel, August 3 and 4