New decision gives clarity as to what constitutes ‘minor’ development

This month, the Environment, Resources and Development Court (the Court) found that the City of Holdfast Bay (Council) made a decision as the relevant authority for a development application that “was so unreasonable that no reasonable authority could have arrived at it” in Wait v City of Holdfast Bay.

Relevant facts

The development application that was the subject of this matter was for the construction of a 4.6m x 3.1m timber-framed deck with a roof addition of similar dimensions (Development Application) on the second storey of the northern side of a residential flat building at 4/34b South Esplanade, Glenelg South (the Apartment). It was likely that the balcony would overlook the neighbouring properties and, therefore, have an impact on their privacy.

The Development Application was submitted whilst the Development Act 1993 (Development Act) was still in force within the City of Holdfast Bay (Council). Accordingly, the approval process was undertaken under that Act, as opposed to the now-in-force Planning, Development and Infrastructure Act 2016 (PDI Act).

The appeal was commenced by the owners of the State Heritage Place ‘Glenara’, which is situated on the land directly to the north of the Apartment (the Applicants). The Applicants became aware of the proposed development only when construction began.

Council assigned the proposed development to be a Category 1 form of development which meant that it was exempt from public notification. In order to assign this Development Application to Category 1, Council had to form the opinion that it was of a minor nature only and would not unreasonably impact on the owner or the occupiers of land in the locality of in accordance with clause 2(g) of schedule 9 to the Development Regulations 2008 (Clause 2(g)).

Key question

The main issue in this case related to the categorisation of the Development Application. Particularly, whether Council erred in forming the opinion that the Development Application was of a minor nature only and would not unreasonably impact on the owner or the occupiers of land in the locality of the site of the development and subsequently assigning it to Category 1.

Key finding

In determining whether the opinion of the Council was reasonable, the Court applied what is known as the Wednesbury principle. This principle says that if a decision made by an authority is so unreasonable that no reasonable authority could ever have come to it, then the Courts may intervene. There is a high bar to prove Wednesbury unreasonableness and in order to establish that an authority’s decision was unreasonable in the Wednesbury sense requires something ‘overwhelming’.

The applicants in this matter did indeed establish something overwhelming in their case.

The Judge detailed the findings of two earlier cases that dealt with similar issues before coming to the conclusion that, in this instance, no reasonable council could have considered the works proposed in the Development Application to be a Category 1 development within the meaning of Clause 2(g).

The Court’s reasoning for this largely turned on the extent of the works approved under the Development Application. The Court said that the development was not minor, it consisted of:

• the pouring of footings and attachment of those footings to the footings of the residential flat building in accordance with a footing construction report;

• the installation and attachment of two lengthy (about three storey high) galvanised steel columns - as per structural design calculations and structural drawings – necessary to support both a timber framed deck and roof structure;

• the removal of the bathroom and kitchen windows from the unit;

• the removal and relocation of the existing air-conditioning pipework from the northern external wall of the unit;

• the cutting out of an enlarged external opening through the internal and external northern wall of the unit masonry;

• the installation of a new powder coated sliding door in the enlarged external opening;

• the construction, extending northwards from the base of the enlarged external opening, of a 4.6m x 3.1m timber framed deck with both timber and steel structural bracing and an enclosed 1.2m high aluminium obscure glass balustrade; and,

• the construction of a roof addition and flashings, of a dimension of some 4.6m x 3.1m and, steel roof framing in accordance with an approved roof framing layout.

The Court rejected the approach taken by Council’s planning expert in determining whether the Development Application could be considered to be minor for the purpose of Clause 2(g). That expert undertook a “planning assessment approach rather than limiting his assessment to the development itself.” For example, the expert considered it relevant that balconies are a common design element in the locality, with most, if not all, multi-level residential flat buildings incorporating balconies as this primary area of private open space. Further, they thought relevant that the development proposal was, in this case, associated with the existing residential use of land and it was relevant that ‘dwelling additions’ are a form of development specifically envisaged in the zone.

However, the Court said that whilst those matters are relevant to a planning assessment, and may be relevant to the second limb of Clause 2(g) [unreasonable impact] they are not matters relevant to the first limb, which is instead directed to an assessment of the building work to determine if the development is minor in nature only.

Key learning

This case gives clarity in regard to development that the courts do not consider to be minor for the purposes of Clause 2(g).

Even though Clause 2(g) is no longer in force due to the repeal of the Development Act and subsequent implementation of the PDI Act, most zones in the Planning and Design Code have an exemption from public notification for performance assessed development in Table 5 that is identical to Clause 2(g). Therefore, it is likely that the principles in this case will have application and relevance in relation to public notification issues for performance assessed development under the Planning and Design Code.

What would have happened under the PDI Act?

It is possible that the Applicants may not have had access to the recourse that they had under the Development Act if the Development Application had been assessed under the PDI Act.

Under the PDI Act, the subject land is within the Established Neighbourhood Zone. The nature of the works proposed in the Development Application mean that it would be performance assessed under the new regime.

It is possible that the Development Application would be exempt from public notification because a deck or veranda is exempt from public notification in the Established Neighbourhood Zone except if it exceeds the maximum heigh DTS/DPF in 4.1 which is 2 levels or 9m. The works in the Development Application were on the second level of the building in question, although we are unsure if the height exceeds 9m. As such, it is possible that the Development Application may have been lawfully exempted from public notification under the PDI Act and, if it was approved, the owners of the adjacent land would not have been able to contest the Development Application on the same grounds.

If the Development Application was performance assessed on its merits and approved, the only recourse available to the aggrieved neighbours would be judicial review in the Supreme Court of the decision to approve the Development Application on its merits.

For further information on the material contained in this article please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au, Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au or Lachlan Goddard on +61 8 8210 1227 or lgoddard@normans.com.au.