Boundary realignment or additional allotment? – Fiora v Development Assessment Commission

The Full Court of the Supreme Court has considered the nature of development in a proposed land division in the recent case of Fiora v Development Assessment Commission [2017] SASCFC 52.
The appellant applied for development plan consent for a proposed reconfiguration of eight allotments in a Watershed (Primary Production) Zone at Verdun.
The application proposed divisions on two parcels of land separated by four parcels of land that were to remain unchanged. The application proposed to:

  • redivide three allotments into two allotments on the northern parcel of land; and
  • redivide one allotment into two allotments on the southern parcel of land.

The question to be answered by the court was whether this proposed development would create an additional allotment and therefore be non-complying, despite the total number of allotments on the land and in the zone remaining the same before and after division.
The judges returned a split decision; Justices Vanstone and Lovell handed down the majority judgment dismissing the appeal with Justice Blue dissenting.
Both judgments considered the principle in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435 requiring authorities to objectively determine the nature of a development by reference to the proposal and not the form of the application.
In Compaction, the court found that four development applications were to be considered as a single development. However, the majority judgment in Fiora applied the Compaction principle in reverse, finding that the nature of the proposed development involved two discrete developments and that the division of the southern and northern parcels of land were to be assessed separately. As the development of the southern parcel involved the creation of an additional allotment, the development was non-complying.
This decision marks the first use of the Compaction principle to argue that a single development application comprises two discrete developments, rather than the reverse.
A copy of the judgment can be found at the below link.
Please contact George Manos or Tom Game on 8212 9777 for any further information.