5th October 2007 Issue 36
PLANNING & ENVIRONMENT TEAM BRIEFLY
In this issue:
Legislation Update – Site Contamination Amendment Act 2007
After almost 20 years, legislation has been passed to regulate the management of site contamination throughout the State. The legislation is part of a Site Contamination Package, and amendments to the Development Act and Land and Business Sale and Conveyancing Act are expected to follow.
The main features of the Bill include:
- Powers to deal with contamination that occurred before 1 May 1995;
- EPA will be able to serve site contamination assessment orders or site remediation orders;
- The owner of land may be liable for clean up notwithstanding that they were not the original polluter; and
- Ability to legally transfer responsibility for site contamination on the transfer of land.
Paul Leadbeter and Martha Savva will be presenting an overview of the changes at a 4 o’clock forum on Wednesday 14 November 2007.
Legislative Update - Development Plan Amendments
On 27 September 2007 a number of the suspended provisions of the Development (Development Plans) Amendment Act 2006 (“the Act”) came into operation in conjunction with the Development (Development Plans) Variation Regulations 2007 (“the Regulations”).
The most significant amendments relate to Sections 24-27 of the Development Act 1993, and a number of consequential amendments have been made to Regulations 9-13 of the Development Regulations.
The most obvious amendments are in relation to some basic terminology, the most significant being the transition from “Plan Amendment Report (PAR)” to “Development Plan Amendment (DPA)”. DPAs will be processed in accordance with either process A, B or C. A different set of each of these processes exists for DPAs of the council, and DPAs of the Minister. The three processes differ in respect of the order of events such as the referral to relevant departments and agencies, the consideration by the Minister, and the public notification. Changes have also been made to the council’s public notification process.
The amendments to the Development Regulations 1993 principally relate to the matters to be included in a Statement of Intent. The most significant changes being the introduction of matters under the headings: Minister’s Policies, Council Policies, Policy Library and Process, with Region-Wide Policies no longer being a requirement. Further, a council will now be required to provide a statement confirming that no one directly involved with the preparation of a DPA has a conflict of interest, and is required to forward a commitment that it will take steps to update the timetable for each step in the DPA process if it appears that an extension may be required.
There have been many other changes effected and this summary does not purport to advise of each individual change, nor does it describe the changes in great detail. For this reason we advise that should your Council be involved in a DPA process, specific legal advice should be sought.
For further information about issues covered in this article, please contact Rebecca McAulay on 8210 1295 or rmcaulay@normans.com.au.
Legislation Update – Development Act Regulations
On 16 August 2007 the Development (Division of Land) Variation Regulations 2007 came into effect. The Variation Regulations provided for three changes to the Development Regulations 1993. Firstly, the Regulations were amended throughout so as delete the word “provisional” wherever occurring so as to accord with recent changes to the Act which substituted “development plan consent” for “provisional development plan consent” and “building rules consent” for “provisional building rules consent”.
The second change affected Regulation 5A. Previously, Torrens title land division of a Class 1 or 2 building required that any walls exposed by the division to a fire source must be appropriately fire-rated and no development authorisation could be issued until this occurred. Now, Regulation 5A provides that a development authorisation can be issued, but that the relevant certificate under Section 51 can be withheld until appropriate fire-rating works have occurred.
The third change is a response to the ERD Court’s decision in Hagger v Development Assessment Commission [2006] SAERDC 56. Pursuant to the changes, development approval will be required where the division of land held pursuant to a Crown Lease is proposed, where an application has been made to freehold the land and it is envisaged the division would occur after the grant of the land in fee simple.
For further information about issues covered in this article, please contact David Billington on 8210 1263 or dbillington@normans.com.au.
Case Law Update - Sunshine and Light
Sandstrom v Adelaide City Council [2007] SAERDC 41
In Sandstrom v Adelaide City Council, the Court considered an application to construct a second storey addition to an existing dwelling in the R11 Kentish Arms Precinct of North Adelaide. The proposal was of a contemporary appearance, featuring a second level which cantilevered over the ground level, a complex roof form which also acted as a veranda, and introduced new materials to the locality such as a glass roofing, sandstone cladding and compressed fibre cement.
The Court upheld Council’s decision to refuse the application on the basis that it was not in accordance with the established streetscape character and was not complementary to the adjacent Local Heritage Place to the east. The Court also found that the proposal overshadowed its neighbour to the west unacceptably and did not have the requisite amount of landscaped open space.
In considering the question of overshadowing, the Court was required to interpret the meaning of the term “direct sunlight” in Principle 27 which prescribed a minimum 2 hour requirement on 22 June between the hours of 9am and 3pm. Council argued that direct sunlight meant that a particular window should receive full sunlight for the minimum of 2 hours. The Appellant argued that direct should be interpreted to mean “straight, lineal without obliquity”. The Court dismissed that contention, holding that if it were to be so, “any portion of a ground floor habitable room window receiving sunlight for a minimum of two hours would suffice to satisfy Principle 27, even if it were only a small portion of the window in question to receive the sunlight. Such an interpretation flies in the face of common sense…”
The Court also considered the meaning of the term “landscaped open space” as referred to in the Development Plan. The Court held that this did not extend to areas having one horizontal dimension less than one metre and those that were covered. To include areas with a horizontal dimension less than one metre did not accord with the uses envisaged by the definition which extended to those “capable of being used as a garden, grassed or paved area for pedestrian use or enjoyment, or a swimming pool”. Furthermore, “open” connoted “open to the sky”, and the Court concluded that “to include covered areas would be to militate against the primary purpose of landscaped open space, being the retention, on the site of any development, of unbuilt-upon areas”
For further information about issues covered in this article, please contact Vasiliki Danambasis on 8210 1246 or vdanambasis@normans.com.au.
Case Law Update – Imposing Valid Land Division Conditions regarding Electrical Services
Allen v District Council of Lower Eyre Peninsula [2007] SAERDC 22.
The ERD Court’s decision in Allen is a reminder of the limits for conditions which may be imposed on a grant of land division consent under Section 33(1)(c) or (d) of the Development Act 1993. Relevant authorities should always be careful to ensure that such conditions are permitted by the sub-paragraphs of paragraphs (c) or (d) or are permitted by Regulations 50 to 55 of the Development Regulations 1993.
In Allen, the Council sought to impose a condition which read “the applicant shall at his/her expense, provide all Electricity services to each [created] allotment to the requirements of the relevant authority”. The ERD Court held that such a condition did not find any basis in the Act or the Regulations and as such could not be imposed on the land division consent. The Court held that Regulation 54(5) contemplates only that a planning authority can require the installation of electrical services within the relevant division. In this case, to comply with the condition the applicant would have had to extend the electricity supply by running a 19kV distribution line on land along a public road to each allotment. On this basis, the Court held that the requirement was beyond the power of the Council and therefore invalid. On appeal to the Supreme Court the Full Court took a different view. While they agreed that the Condition was invalid it did so on a different basis finding that the purpose of Regulation 54(5) is to prescribe the standard to be complied with IF electrical services are proposed to be provided. It does not require electrical services to be provided, and therefore there is nothing in S33(1)(c) or Regulations 51 – 55 imposing any obligation on a person dividing land to provide electricity to the proposed allotments. Councils wishing to impose such obligations should review their Development Plans to see whether there is adequate policy to do so.
For further information about issues covered in this article, please contact David Billington on 8210 1263 or dbillington@normans.com.au.
Case Law Update - Refusal of Extension to Trading Hours
Adelaide City Council v O'Connell Property Group Pty Ltd [2007] SASC 313
This case concerned the Council’s refusal of a development application proposing a variation to an existing authorisation with respect to the extension of the hours of operation of a licensed premises situated on the corner of O’Connell Street and Brougham Place in North Adelaide.
It was a condition of the existing authorisation that the hours of operation of the licensed premises be limited to 12 am from Sunday to Thursday nights and to 2 am on the day following Friday and Saturday nights. On appeal the Environment Resources and Development Court overturned the decision of Council and granted provisional development plan consent. The Council then appealed that decision to the Supreme Court.
His Honour Justice Debelle of the Supreme Court found that the Development Plan clearly stated that late-night entertainment activities should be limited, and that the Council should have been slow to depart from that objective. Further, the relevant zone provisions stated that development should enhance the residential amenity in residential areas in the neighbourhood of the development proposal. In this instance the residential amenity would not be enhanced by licensed premises trading in the early hours of the morning. A balance must be preserved between the interests of those seeking to develop commercial enterprises and the interests of the residents in the locality.
His Honour allowed the appeal and set aside the decision of the lower court.
For further information about issues covered in this article, please contact Rebecca McAulay on 8210 1295 or rmcaulay@normans.com.au.
Case Law Update - Determining Site Area
City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244
This appeal concerned an application by Terra Equities Pty Ltd (“Terra Equities”) for development plan consent to demolish an existing detached dwelling and to construct five detached dwellings on a 2,107 square metre allotment. There was no proposal to divide the land into separate allotments at the time. The Mitcham Council (the “Council”) refused the development application which was subsequently appealed to the Environment Resources and Development Court (the “Environment Court”). A Commissioner of the Environment Court allowed the appeal with conditions. The matter was then appealed by the Council to the Supreme Court.
The location of the proposed development is in the Residential (Central Plains) Zone in Policy Area 8 as prescribed by Council’s Development Plan. The appeal turned on both the calculation of the site area and also the quantitative application of the minimum site area by the Commissioner of the Environment Court when allowing the appeal.
The following Principle 1 set the minimum site areas for the Policy Area 8 as:
“Excluding residences comprising dependent relative accommodation, the minimum site area for a dwelling should be as follows:
- 500 square metres for a detached dwelling;
- 425 square metres for a semi-detached dwelling; and
- 400 square metres for any other dwelling,
except as provided for under principle of development control numbered 2 of this policy area.”
It was held by the Commissioner that “the proposed dwelling should be classified as group dwellings and, as such satisfied the minimum site areas [of 400 square metres] in Principle 1” His Honour, Justice Debelle had a differing view and held that: “Prescribed minimum standards are not a statement of desired standards. They are no more than minimum standards”… The Commissioner has approached the issue on the footing that, if a proposal complies with minimum quantitative standards, it must be approved. That is not necessarily so. Compliance with minimum standards rarely leads to a grant of development consent. Regard must be also had to the qualitative provisions in the Plan when deciding whether it is proper planning to grant development consent
The issue of the method of calculating the site area was also considered by the Court. Principle 1 requires a minimum site area of 400 square metres. The Commissioner calculated that the site area for each dwelling as 421.4 square metres. That number was arrived at by dividing the total site area of 2,107 square metres by five, being the number of dwellings. The method of calculation incorporated the common driveway into the site area for each dwelling. Justice Debelle was of the view that …“a common driveway used by the occupants of other dwellings on the development site is not to be included in the site of a dwelling”
While Justice Debelle recognised that this method of calculating site areas is a long established practice he held that …“an automatic, if not mechanical, practice of this kind which determines an average site area is not appropriate and should be discontinued. The practice fails to have regard to the various factors which in each case might affect the site area of each dwelling.” The appeal was dismissed and the decision of the Council refusing development consent was restored.
For further information about issues covered in this article, please contact Felicity Niemann on
8217 1336 or fniemann@normans.com.au
A Growing Team
Marc Duncan joins the Norman Waterhouse Environment & Planning team as a Senior Associate in October.
Marc was previously in-house lawyer at Planning SA and has, since June this year, been acting as the Principal Consultant to the Steering Committee formed by the Minister for Urban Development and Planning to provide specialist advice on legislative matters relating to property development and local planning laws for the current planning review.
Tom Ivey joined the Norman Waterhouse Environment and Planning Team in September as a Law Clerk. Tom Ivey has joined the as its Clerk. He is near to completing his Bachelor of Laws degree and has a particular interest in planning, environmental and administrative law. Tom holds a Bachelor of Arts majoring in geography and environmental studies.
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