Some older cases suggest that a carport or garage is not part of a ‘dwelling’ under the Development Act. This case rejects that approach.
Two successive development applications were lodged to establish three dwellings in one building which appeared to fit the definition of “row dwellings”. The buildings also included garages/carports integrated under the main roof.
The Council treated the applications as “row dwellings” and a review was initiated in the ERD Court by adjacent owners. The adjacent owners argued that the buildings were not “row dwellings” because of the use of the term “comprising” (a term also used in the definition of both a “detached dwelling” and a “semi-detached dwelling”). It was argued that the buildings could not be regarded as comprising dwellings alone because of the inclusion of the garages/carports and therefore each application involved a residential flat building – which definition does not use the word “comprising”.
The ERD Court dismissed that challenge. The adjacent owners then appealed to the Full Court of the Supreme Court. The Full Court dismissed their appeal and held that the buildings were row dwellings, even though garages/carports were integrated with the developments.
The Full Court said:
Most detached houses, and most townhouses, have a garage to house the residents’ motor vehicles.
The use by residents of motor vehicles is so common that the housing of their motor vehicles when integrated is regarded as part of the residence and not something foreign to it.
Limited scope of challenge to development consents
The Court also set important limits on the powers of the ERD Court to deal with a challenge under section 86(1)(f). The adjacent land owners also challenged that the development plan consent granted to the application was invalid due to the Council’s planning officer allegedly acting beyond the scope of their delegated power.
The Full Court specifically found that the ERD Court had no jurisdiction to entertain the challenge to a decision based on such a “want of authority”. The Full Court said that that issue was beyond the terms of section 86(1)(f) because the ERD Court “does not have a free standing jurisdiction under section 86(1)(f)(ii) to consider the merits or any other defects in the development authorisation itself.” Such a challenge would need to involve judicial review proceedings in the ERD Court.
For further information please contact George Manos or James Levinson on 8212 9777.