Raedel & Anor v Shahin [2019] SASCFC 141

For the purposes of enforcement proceedings commenced pursuant to section 85 of the Development Act 1993 (SA) (Development Act), the time frame within which proceedings must be commenced is three years after the date of the alleged breach.

Braunack v Goers (1979) 23 SASR 1 has long been authority that a breach associated with a change of use of land occurs every day on which the unapproved new use continues. Therefore, in that situation, there is no question of time within which any person may take action, expiring.

However, when it comes to breaches involving unlawful building work, the recent decision of Raedel & Anor v Shahin [2019] SASCFC 141 has provided some further insight in determining at what point this three-year countdown begins.

The Full Court of the Supreme Court of South Australia unanimously dismissed appeals brought by the Raedels against a decision of the ERD Court in which it ordered the rectification of a retaining wall and the installation of a safety fence affixed to the top of the wall, between the Raedel and Shahin properties.

On appeal, the Raedels submitted that the judge erred in that, amongst other things, the Development Act action was not brought within the three-year time limitation prescribed by s 85(18) of the Development Act. They submitted that the judge erred in finding that their breaches of the Development Act arose after 4 March 2014, when in fact the breaches actually arose much earlier, in 2009.

Facts

Mr Shahin brought enforcement proceedings in the ERD Court pursuant to s 85(1) of the Development Act against the Raedels, and sought an order requiring the reconstruction of a retaining wall constructed by the Raedels in breach of that Act. Mr Shahin also brought an action in nuisance in the District Court. The two actions were heard together and the Raedels appealed both judgments to the Full Court. On the Development Act issue, the judge found the Raedels had breached sections 44(4), 45(1) and 45(2) of the Development Act.

In or around October 2009, the Raedels undertook building work, namely the construction of a 4-metre high retaining wall on their land, approximately 500-600 millimetres from the boundary of the neighbouring Shahin land. No safety fence was constructed on top. The Raedels never obtained Development Approval to construct that retaining wall at that time.

On 4 March 2014, the Council granted development approval to the Raedels to build a retaining wall on their land. However, the 2014 approval was for a wall constructed to a maximum height of 3-metres and included the construction of a safety fence on top of the wall. The judge found that the Raedels had constructed the retaining wall in breach of the development approval of 4 March 2014 and the conditions of that approval.

Decision

In the Full Court, Stanley J held that the judge erred in proceeding on the basis that the purpose of the application for approval in 2014 was to obtain retrospective approval of what had been constructed in 2009. The 2014 approval was ineffective for this purpose as the approval was for the construction of a 3-metre high retaining wall with a safety fence on top, when what had been constructed was a 4-metre high retaining wall with no safety fence. As a result, the ERD Court judge wrongly held that the Raedels were in breach of the Development Act from the time the approval was granted on 4 March 2014 and, consequently, in the earlier decision of the ERD Court, the enforcement proceedings were erroneously found to be brought within time.

In the Full Court, Stanley J held, and Kelly and Hinton JJ agreed, that whilst development approval could have been granted retrospectively in March 2014 for the retaining wall as constructed in 2009, this did not occur. Hence, the 2014 approval operated from 4 March 2014 and the Raedels failed to act on that approval. The judge erred in finding there was a breach of the Development Act by the Raedels on and from 4 March 2014 as a result of the approval granted on that date. The Raedels breached the Development Act in or around October 2009 when they first constructed the retaining wall without approval.

Importantly to note in this case is that Stanley J said that; “once a building has been constructed without approval, the offence is complete” (my emphasis). As a result, any enforcement proceedings in relation to that breach should have been issued within three years of the construction without approval having been completed, namely within three years of October 2009.

Based on what Stanley J has said on this matter, where a Council is considering taking enforcement proceedings pursuant to section 85 of the Development Act, relating to a breach of that Act in the nature of unlawful building work, the three year statutory time frame to commence such proceedings may be taken from the date the unlawful building work was completed as opposed to when it was commenced. Often the difference between the two dates can be substantial. The Court has now clarified that the later date can be the relevant date for the purposes of calculating any statutory limitations of time to act.

If you have any queries in relation to this article please contact Claire Ryan on 8210 1294 or by email at cryan@normans.com.au.