Albert Thomas KEANE v the City of Salisbury No. SCGRG 94/1094 Judgment No. 5069 Number of Pages 3 Building Control and Town Planning

[1995] SASC 5069

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1) DUGGAN(2) AND NYLAND(3) JJ

CWDS
Building control and town planning - Town and County Planning - jurisdiction of Environment Resources and Development Court (5A) - power to grant declaration - matter within jurisdiction - whether building work requires development consent not matter within jurisdiction of ERD Court - declaratory relief not available from ERD Court. Environment Resources Development Court Act ss 7 and 28 and Development Actss 44 and 81.

HRNG ADELAIDE, 4 April 1995 #DATE 8:6:1995 #ADD 4:9:1995

Appellant:                 In person

Counsel for respondent:     Mr M Roder

Solicitors for respondent: Norman Waterhouse

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant desires to erect a verandah on his home at Salisbury East. The appellant submitted details of the prepared work to the respondent and indicated that he considered that approval under the Development Act, 1993 was not required. The respondent replied by letter advising that Development approval is required. The appellant, being unwilling to seek an approval which he considered to be unnecessary and being unwilling to risk prosecution, instituted proceedings in the Environment Resources and Development Court, seeking a declaration that Development approval is not required. The Environment Resources Development Court refused the Declaration on the ground that that Court had no jurisdiction to grant the relief sought.

2. The Environment Resources Development Court is created by the Environment Resources Development Act, 1993 found in statutory provisions. The jurisdiction of the Court is prescribed by s7 as follows:
    "7.(1) Subject to this section, the Court will have the
    jurisdiction (including the jurisdiction to try a charge of
    an offence) conferred on it by or under this or any other
    Act.

(2) The regulations may confer on the Court jurisdiction in
    respect of offences against a specified Act or statutory
    provision.

(3) The Court will deal with a charge of an offence in
    accordance with the procedures appropriate to a summary
    offence (even though the offence) and the Summary Procedure
    Act 1921 applies to the Court subject to any additions,
    exclusions or modifications prescribed by the regulations as
    if references to summary offences extended to offences in
    respect of which jurisdiction is conferred under this
    section and as if references to the Magistrates Court
    extended to the Court.

(4) Where proceedings for an indictable offence are brought
    in the Court -
    (a) the Court cannot impose a fine that exceeds the maximum
    fixed by the relevant Act or twice a Division l fine
    (whichever is the lesser); and
    (b) the Court cannot impose a sentence of imprisonment that
    exceeds the maximum fixed by the relevant Act or two years
    (whichever is the lesser).

(5) The conferral of jurisdiction on the Court in respect of
    offences does not limit the jurisdiction of any other
    court."

3. Much, if not all, of the jurisdiction of the Court is conferred by the provisions of the Development Act and regulations made thereunder. In general terms, it has a summary jurisdiction, concurrent with that of the Magistrates Court to deal with offences under the Development Act, a jurisdiction to make orders to remedy or restrain breaches of the Development Act, a jurisdiction to hear and determine appeals against certain decisions of Development authorities, and a jurisdiction to determine disputes arising under Building Rules.

4. Section 28 of the Environment Resources Development Court Act confers a power to grant declaratory relief as follows:
    "The Court may, on matters within its jurisdiction, make
    binding declarations of right whether or not any
    consequential relief is or could be claimed."

5. This section does not create an independent jurisdiction in the Court. It confers on the Court a power to grant an additional remedy as to matters in respect of which it already has jurisdiction. In this respect it is similar to s21 of the Federal Court of Australia Act (Cth) 1976 and different from s163A of the Trade Practices Act (Cth) 1974; Re Trade Practices Act 1974 (s163A) and Re an Application by Tooth and Co Ltd (1978) 19 ALR 191 per Bowen CJ and Franki J at p197. Mr Roder, for the respondent, went so far as to contend that the power to grant declaratory relief arose only when the jurisdiction of the Environment Resources Development Court had been validly invoked by a proceeding relating to the same subject matter. I think that that argument is untenable. The word "matters" in s28 is used in the same sense in which "matter" is used in s76 of the Constitution of the Commonwealth, of which the High Court in In re the Judiciary and Navigation Acts (1921) 29 CLR 257 said at p265:
    "We do not think that the word 'matter' in sec. 76 means a
    legal proceeding but, rather the subject matter for
    determination in a legal proceeding."

6. See also Felton v Mulligan and Another (1970-71) 124 CLR 367. A matter is or is not within the jurisdiction of a court irrespective of whether the jurisdiction has been invoked by the institution of proceedings.

7. In order to determine whether the power to grant the declaration sought exists, it is necessary to identify the subject matter of the desired declaration and to determine whether that subject has been conferred on the Environment Resources Development Court. The subject matter of the desired declaration is the question whether Development approval is required for the proposed work. I now consider the various subject matters of the jurisdiction conferred on the Environment Resources Development Court which may be relevant.

8. The Environment Resources Development Court has jurisdiction to hear and determine charges of offences under the Development Act. Section 44 creates an offence of undertaking development without approval where approval is required. The jurisdiction of the Court undoubtedly arises when an allegation of an offence has been made by the institution of a prosecution. I think that the subject matter of the jurisdiction may be said to exist when an offence has been committed notwithstanding that the jurisdiction has not been invoked by the commencement of a prosecution. There can be no question, however, of a matter within the jurisdiction of the Court under this head existing where there is no offence or alleged offence. The appellant can have committed no offence as he has not commenced the work and no allegation of an offence has been made against him.

9. The appellate jurisdiction conferred by s86 of the Development Act must be considered. Unlike s21 of the Federal Courts Act which relates only to the original jurisdiction of the Court, s7 of the Environment Resources Court Act contains no qualification of the word "jurisdiction". The power to grant declaratory relief therefore exists in relation to matters within the appellate jurisdiction of the Court. The only relevant conferral of jurisdiction under s85 is that relating to appeals against "a refusal to grant the authorization" and against "the imposition of conditions in relation to the authorization". (Section 86(l)(a)(i) and (ii).)

10. The matters within the jurisdiction of the Court under these placita are the refusal of authorization or the imposition of conditions. No doubt the question whether particular work requires authorization is related to those matters but it cannot be regarded as part of them. The jurisdiction of the Environment Resources Court arises under these placita only when there has been a refusal of authorization or the imposition of conditions. As the appellant has made no application, neither of these events has occurred.

11. The desire of the appellant to obtain a determination of the legal position before embarking on the work is understandable and it may be thought that it would be convenient for the Environment Resources Development Court to have the power to determine the question. It is clear to me, however, that the Environment Resources Development Court is without jurisdiction with respect to the subject matter of the desired declaration and therefore has no jurisdiction to grant it. The power to grant such a declaration in the instant circumstances exists only in the Supreme Court.

12. I would dismiss the appeal.

JUDGE2 DUGGAN J I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

JUDGE3 NYLAND J I agree that the appeal should be dismissed for the reasons given by the Chief Justice.