The effect of a Statement of Effect — East Rundle Investments Pty Ltd v The Corporation of the City of Norwood, Payneham and St Peters [2018] SAERDC 22

10 May 2018

The recent ERD Court decision in East Rundle Investments Pty Ltd v The Corporation of the City of Norwood, Payneham and St Peters  [2018] SAERDC 22 provides important guidance to councils as to when documents will be held to be “approved documents” for the purposes of later enforcement action and how and when conditions of consent should be imposed on a development authorisation.

Background

In 2014 East Rundle lodged a development application with the Council for a two-storey building comprising a bulky goods outlet on the first floor and a shop tenancy on the ground floor, a freestanding pylon sign, car parking and landscaping.

The proposal was a non-complying form of development and a Statement of Effect (“SOE”) was submitted to the Council. In the SOE it was stated that:

The premises, including car parking areas will be secured outside of these hours, with an appropriate security system installed which will include CCTV cameras in strategic locations allowing remote monitoring and rapid response by security contractor and/or the Police in the event of an incident on site.

(our emphasis)

The Council subsequently granted Development Plan consent, subject to 25 conditions. The SOE was listed as a condition of consent as one of the “relevant plans, drawings, specifications and other documents” that the proposed development was required to be used, maintained and operated in accordance with.

The DPC was appealed by a representor and subsequently settled on the basis of Consent Orders, upholding the Council’s decision to grant DPC and imposing 24 conditions. Notably, the DPC issued by the Court:

• specified different hours of operation than those stated in the SOE;
• granted consent to plans that were marginally different to those considered by the

Council at first instance; and

• did not expressly reference the SOE.

Development approval was obtained by East Rundle and it completed the development in accordance with the same.

The section 84 notice

The Council contended that East Rundle was required to close a sliding gate located adjacent to a crossover outside of the operating hours of development.  East Rundle did not agree. The Council issued an enforcement notice under section 84 of the Development Act 1993 directing East Rundle to close the gate.

East Rundle appealed the section 84 notice on the basis that it was not obliged to close the gate.  East Rundle’s argument was that no condition sought the closure of the gate and, similarly, the approved plans and documents did not indicate that the gate would be closed at any time.

It was the Council’s position that the SOE formed part of the approved plans and documents and that it could be, reasonably, inferred from this document that the subject land would be secured after hours by the closure of the gate.

The judgment

The Court found that the SOE did not form part of East Rundle’s development authorisation insofar as:

• its purpose is to provide a professional assessment of a proposed development; and
• the nature and extent of the development authorisation was clear and unambiguous, such that the SOE was not needed to assist in its interpretation; and
• the SOE was not referenced in any condition of consent.

The Council’s section 84 notice was, therefore, quashed by the Court. Importantly, the judgment concludes with the following remarks:

It should be noted that the common practice of councils…to reference various (often numerous) documents and reports as forming part of a development authorisation does not necessarily assist in the interpretation of the meaning and effect of that authorisation and, more often than not, causes greater confusion amongst all parties and/or creates a misunderstanding as to what was actually approved. A document submitted as part of an application expressing a professional opinion based upon certain parameters or assumptions is nothing more than that – it is the authorisation itself which must clearly set out the nature of development approved and the terms under which that approval must operate.

(our emphasis)

These remarks reveal a changing attitude of the Court towards conditions of consent. Rather than the traditional, “less is more” approach, relying on plans and documents to be enforceable in and of themselves, these comments suggest councils should consider incorporating specific matters of importance as stand-alone conditions of approval (where practical).

If your council requires any assistance in reviewing its processes or is otherwise considering a review of its standard conditions of Development Approval, please do not hesitate to contact Victoria Shute at vshute@kelledyjones.com.au or on 08 8113 7104.