This Briefly provides a roundup of recent cases, a reminder to ensure current and appropriate delegations, and the latest amendments from Parliament ahead of a State election.

Heritage Walls, Lack of Parking and Protest Signs

AIkkaj Pty Ltd v District Council of Copper Coast [2010] SASC 38

Policies which desire retention of heritage or historic buildings and structures rarely seek such retention at all costs.  Rather what must occur when demolition approval is sought is a balancing act between the public good of retention (within the parameters of the relevant development plan) and the private interests of the land owner in making their land safe and using it as they see best fit.  That balancing act was recently considered by the Full Court of the Supreme Court.

The land owner sought approval to demolish a c. 1859 boundary wall within the town centre of Moonta.  The wall was situated on land within the Retail Core Area of the Town Centre (Moonta Historic Conservation) Zone   The land owner wished to remove the wall and develop the land for residential purposes.  The Council refused development plan consent for the demolition, and the ERD Court upheld the refusal.

Before the Supreme Court, the parties did not dispute the heritage significance and contribution of the wall, nor the fact that it was structurally unsound but not beyond repair and that rectification costs were estimated at $15,000 - $20,000.  The appellant contended that it was entitled to the benefit of Zone Principle 4, which provided that “demolition of buildings which contribute to the heritage character of the Policy Area should not be undertaken unless the item is proven to be structurally unsound and cannot be economically renovated” because the wall was “structurally unsound” and could not be “economically renovated”.

The Supreme Court held that an applicant who sought to rely on Principle 4 must prove both that the heritage item was structurally unsound and could not be economically renovated.  The relevant authority (usually the Council) had no onus to prove the contrary once it had established that the item contributed to the heritage character of the Policy Area.

The Supreme Court held that “economical renovation” required consideration of the uses of the subject land desired by the Development Plan, and whether the heritage item could be incorporated into such uses economically, in addition to any consideration of a particular owner’s development plans.  The appellant’s argument that renovation of the wall was uneconomic merely because it did not assist the appellant’s future intentions for residential development was dismissed.

Gibbs v City of Charles Sturt [2010] SASC 26

Sometimes a planning appeal can be of limited scope and it will not be necessary to call town planning evidence.  That was the case when the above matter was before the ERD Court.  Both parties agreed that the only issue between them was the adequacy of traffic arrangements proposed by the applicant as part of the conversion of an existing dwelling to an office.  Before the ERD Court, both parties called a single traffic engineer only.  The ERD Court concluded that the proposed traffic arrangements were inadequate and dismissed the appeal.

On appeal to the Supreme Court, the appellant argued that the ERD Court had failed to make a planning judgement, weighing up the pros and cons of the development (of which parking and vehicle movements were only one part).  Justice Bleby agreed, saying:

What was needed, and what was lacking, was some assessment of the relevance of any particular supposed departure by reference to other relevant Principles, and an assessment of the effect of the departure on other considerations relevant to that development and its particular location. This, of necessity, required a qualitative assessment which is lacking in the Commissioner’s reasons.

…

the Commissioner … concentrated on resolving differences of opinion between two experts who gave evidence concerning parking and access matters, formed a quantitative conclusion on those matters, applied the Development Plan as if it contained statutory requirements for parking and access, and failed to balance the supposed shortcomings against significant aspects of the development itself in the context of those and other provisions the Development Plan. … The question to be addressed was whether, notwithstanding non-compliance with the Principles of the Plan concerning car parking and access, the proposal as a whole should be approved. There was a failure to undertake a proper planning assessment of the proposal as a whole.

Justice Bleby also held that Section 88(2) of the Development Act 1993 confers a discretion for the ERD Court not to hear a planning appeal de novo (afresh), but to consider discrete issues only.  His Honour found that to do so was not appropriate on this occasion because the whole of the proposal had to be weighed against the relevant development plan.  We observe that every planning appeal (perhaps except appeals against conditions) will need to likewise be weighed, and it may be that Section 88(2) is very rarely used in the future.

Justice Bleby also found that the ERD Court had failed to consider whether the fact that the land was served by two bus routes was sufficient to constitute “readily accessible and frequent public transport in the locality”. Further, the ERD Court had impermissibly determined that satisfaction of a principle which referred to “users of the development hav[ing] safe, close and convenient access to a network of frequent and regular public transport which is available at the times of operation of the development” required proximity to a “major public transport node or interchange” or to those areas of high public transport frequency identified as “Go Zones”.

The appeal has been remitted to the ERD Court for further determination.

City of Onkaparinga v Becker and Inglis [2010] SAERDC 1

Mr Becker and Ms Inglis owned and lived at land in Port Noarlunga South.  Within the front yard of the land they would erect signs, generally comprising chalked text on large blackboards.  Often there would be 5 or more such blackboards.  The verandah of the dwelling on the land had its road-facing side covered with green shade-cloth, and chalked messages would frequently appear on that surface too.  On occasions a tableaux might be set up in the front yard.  The messages on the signs were generally large enough to be legible to pedestrians and motorists using the adjacent public road.

The signs invariably contained messages of protest concerning topics of interest to Mr Becker and Ms Inglis.  Some, if not most, made reference to political figures.  Many of the signs were grossly defamatory and many were also blatantly homophobic.

The local council brought civil enforcement proceedings against Mr Becker and Ms Inglis under Section 85 of the Development Act 1993, alleging that the erection of the signs constituted unlawful development.  The council argued that this was so on two separate bases.  First, that each sign or signboard constituted the “commencement of an advertisement” (an additional prescribed form of development under Schedule 2 of the Development Regulations 2008).  “Advertisement” is defined under the Development Act to mean “an advertisement or sign that is visible from a street, road or public place or by passengers carried on any form of public transport”.  Secondly, the council alleged that the number of signs, the changing of the messages, and the display of the signs to the public constituted a separate land use additional to the lawful residential use of the land.

Mr Becker and Ms Inglis challenged those allegations directly, but also argued that, even if the Council was correct, their actions were protected by the implied freedom of political communication in the Australian Constitution.

The ERD Court found:

• the display of the signs did constitute an additional land use for which approval had not been obtained;
• that additional land use was not part of the ordinary, lawful, residential use of the land and nor was it an accessory use in the nature of a hobby or similar;
• the display of the signs was not a “home activity” because the signs had a detrimental impact upon the amenity of the locality;
• the signs were “advertisements” within the meaning of the Act, although it was not free from doubt that the definition in the Act embraced everything which could be called a “sign”; and
• the challenge to Section 85 of the Development Act on the basis that it was incompatible with the constitutional freedom (and therefore invalid) should be rejected because that section is “is reasonably appropriate and adapted to serve a legitimate end”.

In relation to whether the display of signs was an accessory use, Judge Trenorden said, “the character of the use of the site, having regard to the dimensions of the boards and banners and the numbers of them, precludes it from being ordinarily regarded as reasonably incidental to the residential use of land. Perhaps the display of messages might ordinarily be regarded as reasonably incidental to the residential use of land, if carried out at a lower scale, but that is an issue for another day. The acts and activities of the respondents in displaying the messages on the site, on the facts, are in the class described as being beyond the pale”.

The Court made orders in effect restraining any further display of signs on the land.  Mr Becker and Ms Inglis have appealed to the Full Court of the Supreme Court concerning all of the above matters.

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Recent Prosecutions

There have only been a handful of prosecutions commenced by councils concerning breaches of the Development Act 1993 where unlawful building work is alleged to have been undertaken. 

In the matter of City of Salisbury v Rocca [2009] SAERDC 94, the complaint before the Court related to a breach of the Act comprising the unlawful construction of a warehouse and office building having a floor area of 3,390 square metres and measuring 9.2 metres in height.  The Council charged a director of one of the owner companies of the land who had played a significant role in negotiating contracts and the like for the construction of the building on the land.  The Council also charged the two building companies who undertook the unlawful building work on the land.  The director and one of the building companies both entered a plea of guilty.  In sentencing those two parties, the Court found that:

• an owner of land has a responsibility not to allow building works to commence on their land unless that development has been approved.  It is not acceptable for an owner to assert that they relied upon others to obtain the necessary approvals on their behalf; and
• there is a clear obligation on the part of builders and building companies not to proceed with building work without having obtained development approval or having sighted a current development approval for the building works being undertaken.  In this case, the Court determined that the builder should have asked to see the development approval before commencing the building work.

• Submissions were made on behalf of the building company that no conviction be recorded against it.  The Court declined this request and a conviction was entered against both the director and the building company in question.  The second building company involved in this particular case is yet to enter a plea.  The Court imposed fines of $13,500 and $4,500 and by consent ordered that the Council’s costs be paid fixed in the amount of $15,000.
• Prosecutions in relation to the unlawful removal of significant trees have continued to be commenced in the Court over the last year or more.  In the matter of City of West Torrens v Davies (unreported, Environment Resources and Development Court of South Australia per Judge Code, 21 December 2009, action ERD-09-46), the Court made the following remarks which may be of interest to prosecuting authorities:
• it should be the practice of every contractor who undertakes tree removals to sight a current development approval for the removal of significant trees; and
• given the maximum fine is currently set at $120,000, a fine of around the $40,000 mark can be expected to be imposed for the removal of a significant tree where there is a commercial interest in removing the tree and where no development approval has been sighted by the contractor.

Pursuant to s105(7) of the Act, any penalty that is imposed by the Court in any criminal proceedings brought by a Council is paid to the Council.

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Karytinos v Corporation of the Town of Walkerville [2010] SASC 5

Mr Karytinos was the owner of a large residential allotment in Medindie.  Located on the allotment is a detached dwelling known as “Sunbury” which was listed as a local heritage place in the relevant development plan. In December 2006 the appellant submitted a development application (“first application”) to the Council proposing to construct a “detached two storey outbuilding incorporating ground floor under cover car parking and an upper level loft”. Development approval for the outbuilding was granted in April 2007 with conditions.

The outbuilding was constructed, but not entirely in accordance with the approved plans. An obvious parapet wall and castellations had been incorporated into the southern elevation of the outbuilding.   Following investigations Mr Karytinos submitted to a second development application (“second application”) seeking approval for the parapet as constructed. The plans submitted with the application reflected the ‘as built’ southern elevation. That application was refused by the Council for a number of reasons, particularly relating to heritage issues. Mr Karytinos appealed to the ERD Court. That Court heard and dismissed the appeal, upholding the decision of the Council. 

Mr Karytinos then appealed to the Supreme Court (comprised of Justice Bleby).  One ground of appeal was that the ERD Court “had given insufficient weight to the existing approval”.  The ERD Court had given only “moderate” weight to the approval for the first application. Bleby J considered that the ERD Court did not err in giving it the weight it did.  His Honour followed the reasoning espoused in Chadha v City of Unley [2003] SASC 99 where Debelle J was satisfied that the appropriate “approach …was to have regard to the existing development and…attach no more than very little weight to the existing consent”.

What is interesting about this decision are the observations of Bleby J in the postscript to his reasons. Upon appeal it was revealed that there were other features of the ‘as built’ dwelling which differed from the plans approved in the first application and also differed from the plans presented in the second application. Among other things, the differences included: changed window sizes; internal walls to create three rooms; an internal fireplace; and an upper level balcony. None of these features were approved, nor had approval been sought for them.

Bleby J considered that by submitting an incomplete application “it would appear that the process of the Environment Court and of this Court on appeal is being abused or is likely to be rendered nugatory simply because the Court is being asked to give its approval to a development which the developer knows is not in accordance with reality”. His Honour further remarked that the “Environment Court should have declined to proceed with the hearing of the appeal unless and until it was satisfied that all non approved aspects of the as built development were or had been the subject of the application before the Council and were therefore properly before the Court.”

For councils, it is therefore important that when assessing a retrospective application that the application being assessed is complete and correctly reflects the ‘as built’ development.  Incomplete or incorrect details may be the subject of further information requests under Section 39, or, in extreme cases, a refusal to even consider the application because it does not disclose the “development” for which approval is sought.

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