Private bushfire shelters - McBride & Anor v Adelaide Hills Council Assessment Manager [2026] SAERDC 2
In the recent decision of McBride & Anor v Adelaide Hills Council Assessment Manager [2026] SAERDC 2 the Environment, Resources and Development Court (Court) has determined that a pre-fabricated private bushfire shelter which the landowners said would be used purely for storage cannot be characterised as an ‘outbuilding’. Rather, it remained a ‘private bushfire shelter’.
In so deciding, the Court applied the principle that while the intended use of a building may be decisive in many cases, in this case the form of the building was determinative.
Facts
In 2021, the Appellants installed a prefabricated private bushfire shelter (structure) on their property at Stirling without obtaining the required consents and development approval under the Planning, Development and Infrastructure Act 2016 (Act).
After the structure came to the attention of Council compliance officers, the Appellants submitted a development application describing the structure as an ‘outbuilding’.
The Appellants stated that they intended to use the structure as a storage for their valuables and did not intend to use it for sheltering during a bushfire. They also proposed a number of modifications to the structure, namely:
- a welded metal plate is to be placed over the viewing hole;
- internal storage shelving; and
- signage is proposed to be displayed at the entry hatch and internally which states; “Storage Only. Not For Shelter.”
At verification, the Relevant Authority determined that the structure was not an ‘outbuilding’ but remained a private bushfire shelter.
The Appellants appealed against the Relevant Authority’s characterisation of the development as a private bushfire shelter. The Appellants argued that because they did not intend to use the structure as a private bushfire shelter, it should be characterised as an ‘outbuilding’.
Findings
The Court dismissed the appeal on the basis the Relevant Authority had correctly determined that the structure was a private bushfire shelter, not an outbuilding.
The Court held that:
As stated by the Full Court in [Stewart v McQuade & Ors (1997) LGERA 127], while form may be very influential, in the end it is the proposed use of a building which will provide the answer in many cases. I consider that while that may be so in many cases, it is not necessarily so in all cases.
The Court held that the form of the structure in this instance was not deceptive and was influential to providing a decisive answer to the question of the nature of the development in spite of the Appellant’s intended use of the structure.
The Court said:
Notwithstanding the stated intentions of the appellants to only use the structure for storage purposes and not for shelter, in this particular case, I consider that the intentions of the appellants cannot override the fact that the structure has been purpose built as a fire bunker, that it contains all of the physical properties and attributes of a fire bunker, and that it is capable of being used and, for the purposes of the definition, may be used, for shelter, in the event of a bushfire, as a matter of fact.
That was so despite the modifications proposed by the Appellants.
It was relevant to the Court’s decision that although the Appellants asserted that the structure was not intended to be used as a private bushfire shelter, such intentions may not be known or shared by future owners or occupiers of the land. The Appellants’ intentions may also be susceptible to change, especially in a ‘life or death’ type situation. Further, as an ‘outbuilding’ the structure would have been exempt from the definition of ‘development’ and its use unable to be controlled by way of a condition of approval (as was the case in Stewart v McQuade).
Take Home Message
The Court’s decision reinforces the requirement for the Relevant Authority to undertake an objective assessment of the documents and material before it to determine the true nature of the development. While the stated intentions of the applicant are important, and may be decisive in many cases, that is not necessarily so in all cases. In some instances, the form of a building or structure may prevail.
For more specific information on any of the material contained in this article please contact Peter Psaltis on 8210 1297 or at ppsaltis@normans.com.au or Teri Hopkins on 8217 1308 or at thopkins@normans.com.au
