Introduction

A roundup of recent cases! Notes about legislative change!  Hear the latest on urban sprawl at our co-sponsored event!  And two great learning and development opportunities round out this Briefly.

Bring our Annual Conference to Your Office!

Because we understand that resources and workloads do not allow all council officers to take advantage of the training and networking opportunity that the conference provides, we would be pleased to present one or more of the conference papers at your offices to council staff and/or elected members and CDAP members.

Simply choose from one or more of the following and contact us to find out more, including cost:

• Planning Case Law Update presented by Gavin Leydon
• Developer Contributions presented by Felicity Niemann and Yari McCall
• Time for a Tree Change (Regulated Trees) presented by Peter Psaltis and Martha Savva
• Private Certification – the Council Perspective presented by Rebecca McAulay
• Fix Your Development Plan with Best Practice Drafting presented by David Billington

For further information on issues contained on this article, please contact Martha Savva on 8210 1230 or email msavva@normans.com.au

Time for a Tree Change?

Martha Savva, Partner	Peter Psaltis, Partner

In November 2009 the Development (Regulated Trees) Amendment Act 2009 made amendments to the regulation of trees under the Development Act 1993.  The amendments are not yet operational.  The real impact for local government could not fully be appreciated in the absence of regulations. Draft regulations have now been released for consultation. Many councils will want to make submissions on the proposed legislation and it is important that council staff understand how the new scheme for the regulation of trees will operate, and what the policy and other implications are.

Join us on 16 September 2010 at 4 pm when Peter Psaltis, Partner, and Martha Savva, Partner will talk you through the proposed amendments and answer any questions you might have

For further information of to make a booking please contact Leah Fingleton, Marketing Assistant, 8217 1320 or lfingleton@normans.com.au.

For further information on issues contained on this article, please contact Peter Psaltis on 8210 1295 or email ppsaltis@normans.com.au or Martha Savva on 8210 1230 or email msavva@normans.com.au

Consolidation v. Sprawl: Choices for Metropolitan Growth

An afternoon with Dennis Hardy - celebrated town planner, academic and published author from the United Kingdom. 

Dennis will discuss the various approaches which will enable Adelaide to accommodate rapid metropolitan growth over the next thirty years.  He will debate consolidation within the existing city limits, expansion of the existing boundaries of the city and a hybrid approach of both consolidation and urban sprawl. Dennis will offer a global and comparative context to consider the implications of each approach and will draw upon evidence from the USA, Western Europe, China and the UAE.

This is a joint PIA and Norman Waterhouse event.

Time: 3.30pm-5.30pm
Date: 21 September 2010
Venue: Norman Waterhouse Conference Rooms
Cost: $35  

RSVP to admin.sa@planning.org.au by 15 September 2010.

Shipping Containers

	Rampling v City Of Holdfast Bay [2010] SAERDC 44 was an appeal against an enforcement notice which directed the removal of an unapproved shipping container from vacant land in a Residential Zone. The shipping container was used to store tools, machinery and building materials for the appellant’s building maintenance business, which was conducted off-site.
David Billington, Senior Associate

The appellant had applied for development approval to construct a two-storey dwelling on the land.  Some time before development approval was granted, the shipping container was placed on the land. No building work pursuant to the development approval had commenced by the time of the trial. The defendant said his intention was to commence construction once in a financial position to do so, although there was no indication when that would occur.

The Court considered the validity of the enforcement notice, and proceeded on the basis that the placement of a shipping container constitutes either, or both, ‘building work’ as defined by the Development Act 1993 or a change in the use of the land to a store or builder’s workshop. The defendant argued that the shipping container was exempt from the meaning of ‘development’ under Schedule 3 paragraph 4(k), being: “a temporary builder’s office, shed, store or other similar building – (i) that is used for the purpose of storing materials … connected with the performance of building work … within the site.”

The Court held that the exemption did not apply, because no building work had commenced on “the site”. The Court commented that in some situations it may be acceptable for a temporary builder’s workshop or store to be placed on land slightly before building work is definitely to commence, however, this was not the case here.  The enforcement notice was confirmed, and the appeal dismissed.

A most interesting aspect of the decision was the finding that the placement of the shipping container constituted “building work”.  It is not apparent from the judgement whether the Court was taken to relevant previous cases.  Without doubting the correctness of the decision in this case, we do not consider that this decision necessarily means that the placement of a shipping container on land will in all circumstances constitute “building work”.

For further information on issues contained on this article, please contact David Billington on 8210 1263 or email dbillington@normans.com.au

Mental Illness Fellowship SA v City of Marion [2010] SAERDC 34

	This case was an appeal against the Council’s decision to refuse a change in the use of land to short term respite care provided by MIFSA.  During the appeal process amendments were made such that the Council came to support the proposal (subject to conditions), however third party representors (who had been joined to the proceedings) maintained their opposition.
Gavin Leydon, Partner

The proposal involved the provision of residential respite care programs for people diagnosed with a mental illness.  The proposal sought to accommodate up to 7 clients and 2 staff members at any one time from Monday to Friday.  All clients would be driven to and from the site and there would be no visitors.  Additionally clients would not be permitted to consume alcohol and would have a curfew of 6 pm. The clients would not leave the land without the prior approval of staff.

The primary issue that was argued at hearing was whether the proposal was for a non-complying form of development.  The relevant development plan provided that both “boarding house” and “multiple dwelling” were non-complying.

The Court held that the proposal was neither a boarding house nor a multiple dwelling.

The Court held that the proposal could not be a “multiple dwelling” because the persons residing within it did not live “independently” as is required by the definition provided in Schedule 1 to the Development Regulations 2008.  It also held that the proposal was not a “boarding house” as that term is usually understood because the highly structured nature of the participants’ stay on the land could be distinguished from the impacts of a traditional boarding house where lodgers are more likely to be coming and going from the premises independently of each other and staying for varying periods of time, generally well in excess of 5 days.  The Court also found that the rules of the premises would go well beyond the rules that would reasonably be expected in a boarding house.

The Court held that the use was an appropriate use and characterised the development as a “respite care facility” which was residential in nature and generally acceptable within a residential zone.  The Court allowed the appeal and granted development plan consent.

For further information on issues contained on this article, please contact Gavin Leydon on 8210 1263 or email gleydon@normans.com.au

Failure to Record a Conviction

Before the ERD Court, Ahrens pleaded guilty to a breach of Section 44(1) of the Development Act 1993.  The ERD Court imposed a fine of $9,000.00 but did not record a conviction against Ahrens for the offence.

The Council successfully appealed to the Supreme Court against failure to record a conviction.  The Supreme Court found that the ERD Court had erred in failing to record a conviction against Ahrens. 

Ahrens’ offending comprised the construction of a warehouse and office building at Pooraka without building rules consent and development approval.  The building was a substantial structure with the warehouse occupying approximately 3,000m² and the office area comprising two storeys occupying an area of approximately 390m².  The contract price exceeded $1 million. Development plan consent was granted on 17 March 2008 and building rules consent was obtained from a private certifier on 10 November 2008.  However, by that stage the building work was well advanced, and was substantially completed by 13 November 2008 (just 3 days later).

Ahrens was instructed to commence construction by the developer (the owner of the land). Ahrens commenced construction without viewing a building rules consent or development approval nor any stamped approved plans.  Ahrens did not satisfy itself that building rules consent or development approval had been obtained, nor did it seek to make itself aware of the terms of the consent or of any applicable conditions.

The ERD Court determined that there were “extenuating circumstances” for not recording a conviction against Ahrens, namely:

• the responsibility to obtain approval belonged to others; and
• Ahrens commenced building work at the request of others involved in the project.

On appeal, the Supreme Court held that neither of the above circumstances either individually or collectively constituted “extenuating circumstances” to not record a conviction.  In considering whether “extenuating circumstances” exist, the Supreme Court held that efforts to prevent or avoid the commission of the offence must be made before the commission of the offence.   To rely on the omissions and actions of others does not amount to “extenuating circumstances” in relation whether a conviction should be recorded. 

The Supreme Court held that the requirements of the Act to obtain building rules consent and development approval serve an important purpose in ensuring that proper standards of construction are maintained.  The Court found:

“Although there was no actual harm caused to any person, and although the building was said to be compliant with the Building Regulations, the potential for harm, had there been non-compliance with some important condition of the consent, could have been substantial… The fact that the development proceeded without approval meant that [the Council] was deprived of the opportunity of specifying the stages at which [Ahrens] was required to notify the appellant before commencement or after completion so that it would have an opportunity to inspect the work in question.  The regime in place for ensuring compliance by [Ahrens] was deficient.”

In summary, unless a building company has already put in place measures and steps to avoid the commission of an offence against the Act, it is highly likely that the Court will impose a conviction against that company if found guilty of unlawful building work.

For further information on issues contained on this article, please contact Claire Ryan on 8210 1294 or email cryan@normans.com.au

Lakshmanan v City of Norwood, Payneham and St Peters [2010] SASCFC 15

	This was an appeal to the Full Court of Supreme Court against a decision of the Full Bench of the Environment Resources and Development Court (ERD Court). The Appellants’ local heritage-listed Victorian stone dwelling had suffered flood damage but remained structurally sound.
Rebecca McAulay, Senior Associate

The dwelling was located in the 50 year average recurrence interval flood plain for First and Second Creeks.  The Appellants did not want to repair the dwelling due to the risk of future flooding.  City Wide Principle of Development Control 172 of the Council’s development plan provided that demolition or removal of a local heritage place should not occur unless the portion to be demolished did not contribute to the heritage value of the place; the structural condition of the place was seriously unsound and could not be rehabilitated; and a heritage impact statement had been prepared by an independent qualified heritage expert.

The Council had refused the Appellants’ development application for (only) demolition of the dwelling.  The ERD Court upheld that refusal without considering the risk of future flooding or the heritage value of the dwelling, notwithstanding evidence of such matters was given.

The Supreme Court held that the ERD Court had failed to consider the engineering evidence concerning the threat of future flooding and the evidence of the relative heritage value of the dwelling. The Supreme Court remitted the matter back to the ERD Court.

The two most interesting parts of the decision come from Justice Kourakis, with whom Justice White agreed.

First, His Honour suggested that at times matters outside the relevant development plan may be relevant considerations in a planning assessment.  Development plans “cannot be expected to deal with all possible circumstances” and “there may be good reason not to apply a particular provision”. 

Whilst it is accepted that a development plan is not applied strictly as if it were a statute, it is with considerable caution that a relevant authority should consider matters outside the development plan.  Where it appears that it may be appropriate to consider matters outside the relevant development plan, it is recommended that legal advice be sought prior to any decision being made by the relevant authority.

Second, the Council argued that the appeal should be dismissed as it did not include a replacement dwelling as sought by City Wide Objective 90 and City Wide Principle of Development Control 223.  His Honour commented that the ERD Court “must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms”.  The ERD Court had before it a further appeal of the Appellants, which concerned both demolition of the Victorian dwelling and construction of replacement dwellings.  In such circumstances, His Honour said, it did not follow that the demolition appeal should be dismissed as it did not include a replacement building.  His Honour suggested that the ERD Court had the power to deal with the approval of the replacement dwellings within the appeal concerning demolition only.  Alternatively, the ERD Court had the power to amalgamate the two appeals.

The suggestion of His Honour that the ERD Court should or must consolidate the two appeals and deal with them “as one” can be accepted without further comment, however, any amendments to the demolition appeal so as to introduce replacement buildings not considered by the Council at first instance might well amount to an impermissible change in the essential nature of the proposal.  Any such approach could be taken only with exceptional caution.

For further information on issues contained on this article, please contact Rebecca McAulay on 8210 1294 or email
rmcaulay@normans.com.au

Development (Trusses) Variation Regulations 2010

The State Government has circulated draft regulations to amend the Development Regulations 2008 in relation to roof trusses.  These regulations have been precipitated by the Minister’s taskforce into roof trusses, which was set up in response to the tragic consequences of roof truss failure at the Riverside Golf Club in April 2002.

The draft regulations propose the following amendments:

• A new notification stage whereby one business day’s notice of the completion of all framing forming part of building work must be provided to the relevant authority upon completion of the framing.
• A person who gives a notice must also provide to the Council a completed supervisor’s checklist relating to the framing signed by a registered building work supervisor.
• A person must not cover or conceal any completed framing until after the expiration of two clear business days after the notice has been provided.  A person who is engaged to manufacture a roof truss must before commencing the work, must furnish to the Council for the area where the roof truss is to be installed and the licensed building work contractor responsible for the relevant building work, the information required by a checklist that will be required for the purposes of Schedule 5 to the Regulations.
• Minimum rates of inspection will be required to be undertaken by councils with respect to any building work involving the construction of any roof framing whereby 66% of all building work within the council area involving the construction of any roof framing carried out over the course of the year where a licenced building work contractor is responsible for the building work must be inspected, and 90% of all other building work (i.e. not undertaken by a builder) involving the construction of any roof framing over the course of the year must be inspected.

There are also amendments in relation to qualifications required by persons inspecting building work.  At this stage, whilst there are references to the Minister’s Schedule 5 Truss Checklist, that checklist has not yet been published.  As such, the exact nature of the checklist is not known however, relevant persons will be consulted by the government prior to the implementation of any such checklist.

The obvious ramifications of these amendments relate to the rates of building inspections that councils will be required to undertake.  The rates contemplated appear to be much higher than the current inspection rates and will have obvious impacts in terms of the resourcing of building departments in Councils.

For further information on issues contained on this article, please contact Rebecca McAulay on 8210 1294 or email
rmcaulay@normans.com.au

Development (Private Bushfire Shelters) Variation Regulations 2010

These regulations were gazetted recently.  The amendments define “private bushfire shelter” as: a building, associated with a Class 1a building [detached dwelling], that may as a last resort provide shelter for occupants from the immediate life threatening effects of a bushfire event.

The definition of “outbuilding” has also been amended to provide that private bushfire shelters are excluded from the definition as an “outbuilding”, presumably in order to ensure that they do not fall within the Residential Code provisions in Schedule 4.

Private bushfire shelters (which meet certain location criteria) fall within Schedule 1A and therefore do not require a development plan consent but do require a building rules consent which must not be granted unless the Building Rules Assessment Commission concurs in the granting of a consent.

In order to fall within Schedule 1A, the shelter must not be located (a) in front of the dwelling with which it is associated, (b) within 900mm of a secondary street or (c) within 6 metres of the intersection of two boundaries of the land where those boundaries both face a road.

The construction of a private bushfire shelter is a Category 1 form of development (no public notification).

For further information on issues contained on this article, please contact David Billington on 8210 1263 or email dbillington@normans.com.au

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