Alexander v Corporation of the City of Marion - [2017] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ALEXANDER v CORPORATION OF THE CITY OF MARION & ANOR
[2017] SASC 141
Judgment of Judge Dart a Master of the Supreme Court
27 September 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY
Application for judicial review of Development Plan consent - application commenced out of time - applicant seeks extension of time - prejudice to the second defendant if extension of time granted - no proper explanation for delay in commencing proceedings - not appropriate to grant an extension of time.
Held:
1. Application for extension of time within which to commence proceedings dismissed.
2. Action dismissed.
Supreme Court Civil Rules 2006 Rule 117, 199, 200; Development Act 1993 s 35, s 38, s 86(1)(f); Local Government Act 1999 s 270, referred to.
Ferdinands v District Court of South Australia & Ors [2010] SASC 265; Hall & Ors v City of Burnside & Ors 102 SASR 298, applied.
Alexander & Anor v The City of Marion & Ors [2010] SASC 86; Alexander v The Corporation of the City of Marion & Anor [2016] SAERDC 29; Alexandrina Council v Strath Hub Pty Ltd [2003] SASC 382; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Ex parte Savage and Savage [1989] WAR 46; Heath v Adelaide Hills Council [2000] SASC 406; Hutchens & Anor v City of Holdfast Bay & Anor 98 SASR 412; Minister for Immigration and Citizenship v Li & Anor 249 CLR 332, considered.

ALEXANDER v CORPORATION OF THE CITY OF MARION & ANOR
[2017] SASC 141

In this application the plaintiff seeks a judicial review of a decision of the first defendant, the City of Marion, in respect of a particular Development Plan consent granted on 3 February 2016.
The plaintiff is the registered proprietor of land in Trumara Road at Marino. From the residence the plaintiff has wide-ranging coastal views. On the opposite side of the road are a number of vacant allotments. The owners of those allotments have, from time to time, made application to build dwellings on the allotments.
One previous approval by the City of Marion was the subject of proceedings by the plaintiff in 2010.[1] In those proceedings the plaintiff was unsuccessful.
[1] Alexander & Anor v The City of Marion & Ors [2010] SASC 86.
The proceedings deal with two separate allotments in Trumara Road owned by the second defendant. On 3 February 2016 the City of Marion granted Development Plan consent for the building of two storey residential buildings on each of the allotments. That is the decision under review.
The plaintiff seeks a wide range of relief in his application. The principal grounds of relief are as follows:[2]
1.   An Order Prohibiting the First Defendant from granting consent to Development Applications that cause harm to a third party.
2.   An Order for Certiorari quashing the decision of Counsel to grant consent to the application for Development on lot 1 and lot 5, 36 Trumara Road Marino.
3.   An Order of Mandamus compelling the First Defendant to act in accordance with the Acts which they administer and protect the community from harm caused by proposed developments.
[2]    Summons, filed 25 November 2016 (FDN1).
Separately, the plaintiff seeks an award of damages from the City of Marion and various declarations that it breached a range of duties it is said to have owed to the plaintiff. The proceedings were issued out of time.
These reasons deal with two issues. First, should an extension of time be granted? Secondly, if the answer to the first issue is yes, whether the first defendant is entitled to the summary dismissal of the action.
The City of Marion made an application for the summary dismissal of the action.[3] The second defendant supports the application for summary dismissal.
[3] Supreme Court Civil Rules 2006, Rule 200C.
Both defendants also submitted that the action was commenced out of time and say no extension of time is warranted.
The Court’s power to make an order for judicial review is contained in Supreme Court Rule 199. The operative time provision is Rule 200, which provides as follows:
200—Time for commencement of action
(1)An action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date.
(2)If an action for judicial review is commenced more than 6 months after the grounds for the review arose, the action cannot proceed further in the Court without the Court's permission.
(3)An application under subrule (2) is to be made by interlocutory application seeking an extension of time in which to commence the action and permission to proceed filed with the originating process supported by an affidavit explaining the delay.
(4)On the hearing of an application under subrule (3), the Court may grant or refuse the application for an extension of time in which to commence the action and permission to proceed or may order that either or both be determined at trial.
If proceedings are issued out of time, sub-rules (2) and (3) come into play. The plaintiff has applied for an extension of time. The former requirement that judicial review proceedings required the Court’s permission to be served was done away with when the current form of Rule 200 became operative in 2014. Rather than the Court reviewing whether an application had sufficient merit to justify continuing, the onus is now placed on a defendant to apply for summary dismissal if it regards a matter as lacking merit. The relevant provisions are in Rule 200C, which provides as follows:
200C—Summary dismissal
(1)If within 14 calendar days of service a defendant files an application for summary dismissal under rule 232, or to strike out the action or the statement of grounds under rule 104, 117 or 193, insofar as an order for judicial review is sought, or if the plaintiff applies for permission under rule 200(2), the defendant may but is not required to file a response or responding affidavit until determination of the application.
(2)If a defendant files an application under subrule (1) or the plaintiff applies for permission under rule 200(2), the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.
(3)If the Court dismisses or strikes out the action or statement of grounds, the Court may give directions for the further conduct of the action insofar as other forms of relief are claimed.
(4)If the Court does not dismiss or strike out the action or statement of grounds, the Court will give directions for filing a response and responding affidavit if not already filed and for the further conduct of the action under rule 201.
The decision of the City of Marion, subject to review, was made on 3 February 2016. The grounds arose at that time. These proceedings were commenced on 25 November 2016. Rule 200(1) requires that an application for judicial review be commenced as soon as practicable after the date when the grounds for review arose and, in any event, within six months. The provision is not like other time limits which permit the commencement of proceedings at any time within the period prescribed. Particular circumstances of a matter may preclude relief, even if proceedings were commenced within the six month period.[4]
[4] Ex parte Savage and Savage [1989] WAR 46.
Where an extension of time for commencement of judicial review proceedings is sought, the provisions of Rule 117 are applicable[5] and provide as followed:
117—Power to make orders controlling conduct of litigation
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
Note—
In addition to the powers specifically mentioned in this rule, the Court's powers to enforce compliance with the rules (rule 12) and the Court's powers to penalise procedural irregularities in costs (rule 13) should be noted.
[5] Heath v Adelaide Hills Council [2000] SASC 406.
(2)The Court may (for example)—
(a)dispense with compliance with a rule;
(b)extend or reduce the time for taking any step in a proceeding;
(c)fix the time for taking a step in a proceeding if the time is not otherwise fixed;
(d)permit a party to withdraw a pleading or other document;
(e)strike out a document or proceeding if the Court considers it frivolous, vexatious or an abuse of the process of the Court;
(f)require the parties to state issues in a particular way;
Example—
In cases where there may be numerous issues for determination by the Court, the Court may require preparation of a schedule, in tabular form, listing each item for determination by the Court and the contentions of the plaintiff and the defendant in relation to each item (for example, the so‑called Scott schedule used in cases of building disputes).
(g)make orders giving effect to, or modifying, litigation plans;
(h)require the parties to prepare a joint or separate statement of the issues in contention between them for the Court's use;
(i)require each party to file in the Court affidavits sworn by the witnesses the party proposes to call at the trial setting out the substance of the evidence the party proposes to adduce from each witness;
(j)require the parties to file in the Court statements of the documents they propose to tender at the trial;
(k)deal with the form in which evidence is to be taken at the trial;
(l)dispense with compliance with the rules of evidence in relation to a particular issue or range of issues;
(m)fix the time and place of trial.
(3)The Court may exercise its power to extend a time limit even though the relevant time limit has already expired.
(4)An order under this rule may vary or revoke an earlier order.
(5)An order under this rule prevails, to the extent of any inconsistency, over any rule relevant to the subject matter of the order.
There are two aspects of the new rules for judicial review that have not yet been the subject of detailed judicial consideration. The first is the requirement in Rule 200(3) for an applicant to obtain two approvals from the court; an extension of time and permission to proceed. The second is the mandatory requirement in Rule 200C(2) for the Court to consider summary dismissal on an application for permission to proceed.
Background factual matters
The plaintiff is familiar with the judicial review process. As mentioned, in 2010 he commenced an application for judicial review in respect of a previous development consent granted by the City of Marion. That matter proceeded to hearing before Justice Bleby. His Honour declined permission for the judicial review to proceed.[6] There was no appeal from that decision.
[6] Alexander & Anor v The City of Marion & Ors [2010] SASC 86.
This application has been made as an application of last resort by the plaintiff. The second defendant lodged a development application on 2 October 2015. The Development Act 1993 provides that there are four categories of development.[7] The City of Marion decided the subject application was a Category 2 development. The practical importance of the categorisation of the development application relates to the entitlement of a person to appeal a planning decision to the Environment, Resources and Development Court (“ERD Court”).
[7] Development Act 1993 s 38.
In respect of a Category 2 development an adjoining land owner will be notified of the application and entitled to make a submission. No entitlement to appeal any decision accrues. If a development is determined by a Council to be a Category 3 development, appeal rights do accrue to a person entitled to be given notice of the application.
The Development Act permits a person with the requisite interest in a matter to apply to the ERD Court for a review of a decision made by a council. The entitlement extends to a review of a decision in respect of the categorisation of a development.[8] On 10 March 2016 the plaintiff made application in the ERD Court seeking to challenge the categorisation of the development. The matter proceeded to a hearing before her Honour Judge Cole who, on 29 August 2016, dismissed the application.[9] The plaintiff did not appeal the decision of Judge Cole. The plaintiff did not institute these proceedings for approximately 3 months after the decision made in the ERD Court.
[8] Development Act 1993 s 86(1)(f).
[9] Alexander v The Corporation of the City of Marion & Anor [2016] SAERDC 29.
Having failed in the ERD Court, the plaintiff then requested the City of Marion to conduct a review of its decision in respect of the subject development application. That request was made pursuant to s 270 of the Local Government Act 1999. The Council review did not find any error in the processing and approval of the development application made by the second defendant.
It was only after failure in the first two processes that the plaintiff applied to this Court seeking judicial review of the decision to grant development plan consent. On the hearing of the argument, Mr Alexander accepted that this action was only commenced because he was unsuccessful in his earlier two attempts to challenge the decision.
Should the plaintiff be granted an extension of time
The plaintiff seeks an extension of time within which to commence these proceedings. That is opposed by the defendants.
In Ferdinands v District Court of South Australia & Ors[10] Gray J was considering an application for an extension of time in judicial review proceedings. His Honour said as follows:[11]
Although not amounting to exhaustive factors for consideration, there are generally four factors to be weighed by the Court when considering an application for an extension of time: the length of the delay; the reason for the delay; whether the applicant has prospects of success; and, the extent of any prejudice suffered by the respondent to the application. It is proposed to deal with each of these factors in turn. [Footnotes omitted.]
[10] [2010] SASC 265.
[11] Ferdinands v District Court of South Australia & Ors [2010] SASC 265 at [19].
In Hall & Ors v City of Burnside & Ors[12] Doyle CJ was also considering an application for an extension of time in a judicial review matter. His Honour commented in respect of the six month time limit as follows:[13]
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
[12] (2006) 102 SASR 298.
[13] Hall & Ors v City of Burnside & Ors (2006) 102 SASR 298 at [49].
Rights of other parties are often affected by judicial review proceedings and, for that reason, a limited time is allowed to commence proceedings. These proceedings were commenced almost 10 months after the making of the relevant decision by the City of Marion. That is a significant delay in the context of a judicial review matter.
The reason for the delay is not in dispute. The plaintiff chose to utilise other procedures to overturn the decision of the Council. That was a conscious decision. The plaintiff was aware, from previous experience, of the existence of the judicial review process. It is not appropriate, in my opinion, for a litigant to warehouse remedies and deploy them one after the other. I do not regard the reasons for delay as satisfactory or providing suitable grounds to enliven the Court’s discretion to extend time.
The second defendant obtained the Development Plan consent, but that is only the first step of the process for development approval. Once Development Plan consent is obtained, it is then necessary to obtain building plan consent. That requires expense in relation to final engineering and building drawings and designs. The second defendant waited until the expiry of the appeal period after the ERD Court decision before taking steps to obtain building plan consent. A private certifier provided that consent and on 9 January 2017 final development approval was granted by the City of Marion. In November 2016 the second defendant resigned from his employment, to allow him to project manage the construction of the two residential properties. Contractors were engaged for the purposes of construction. By the date of the hearing the residential properties were under construction.
It is clear that there is potential for significant prejudice to be suffered by the second defendant if these proceedings are allowed to continue. That is a very strong factor to weigh in the balance when making a determination as to whether an extension of time should be granted. The moreso when the reasons for delay are unsatisfactory.
There is also the need for consideration about the prospects of success. The prospects of success appear to be modest, for the reasons discussed below.
In all the circumstances, it is not appropriate to extend time within which these proceedings are to be commenced. The extension of time application should be dismissed. As the proceedings were issued out of time, it follows that the action should be dismissed.
As the application for an extension of time has been declined, there is no need to consider the second requirement for permission to proceed. It is not clear from the Rules what additional matters the Court must be satisfied of before permission to proceed is granted in circumstances where an extension of time is also required. In the ordinary matter, the criteria relevant for an extension of time would inform the decision as to whether permission to proceed should also be granted. It appears that, by reason of the interaction of Rule 200(3) and Rule 200C(2), the requirement for permission to proceed will only be satisfied where there is a reasonable basis for the claim. That suggests a more detailed examination of the claim than would be the case in respect of a simple extension of time application.
Issues arising on summary dismissal
Notwithstanding that the action is to be dismissed, I propose to consider, briefly, the two issues the plaintiff wished to pursue had an extension of time and permission to proceed been granted.
The two matters the plaintiff wished to pursue were, first, whether the decision of the City of Marion was a decision which a person acting reasonably could not have come to. That is, a Wednesbury unreasonableness point.[14] The second issue which the plaintiff wished to pursue was an argument that the City of Marion did not consider all of the relevant provisions of the Development Plan.
[14] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

In Minister for Immigration and Citizenship v Li & Anor[15] in a joint judgment Hayne, Keifel and Bell JJ were considering the proper articulation of the Wednesbury unreasonableness test. Their Honours said:[16]
The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[15] (2013) 249 CLR 332.
[16] Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332.
In the main, the plaintiff’s argument on unreasonableness turns on what he regards as the failure of the Development Assessment Panel to properly apply the decision of Debelle J in Hutchens & Anor v City of Holdfast Bay & Anor.[17] That case dealt with a proposed development on the esplanade at Seacliff. The proposed three storey building on the esplanade would have had the effect of blocking sea views. The Development Plan for the City of Holdfast Bay had a number of provisions referring to views and the need to protect the same. His Honour said:[18]
A planning authority must, therefore, have regard to the views enjoyed by residents of existing development when determining whether to grant development consent to a new building which will obstruct those views. Regard must be had to the nature and extent of the view, the extent to which the view will be obstructed by the proposed development, and the reasonableness of the proposal as determined by reference to the planning controls.
[17] (2007) 98 SASR 412.
[18] Hutchens v City of Holdfast Bay (2007) 98 SASR 412 at [21].
In the plaintiff’s previous litigation in respect of the earlier development approval Bleby J said: [19]
It should also be noted that in Hutchens v City of Holdfast Bay[20] the relevant Development Plan contained many more specific provisions relating to protection of coastal views.
[19] Alexander & Anor v The City of Marion & Ors [2010] SASC 86 at [19].
[20] [2007] SASC 238, (2007) 98 SASR 412.
The plaintiff’s general proposition is that a Council acting reasonably could not possibly have approved the subject developments, given the impact on his view. It should be noted that the plaintiff himself has a multi-storey dwelling. It is only the views from the lower level of the residence that are affected by the proposed developments. The views from the upper level of the residence are unaffected.
The Development Assessment Panel had before it a very detailed report in relation to the two proposed developments. The author of the report was alive to the issue of views. Reference was made to the decision of Hutchens and Debelle J’s findings in that matter were discussed by the Planning Officer who compiled the report. The report concluded that loss of view was a matter to be considered, but that the Development Plan for the City of Marion contained fewer principles relating to the protection of views than was the case in the Hutchens matter. It was suggested in the report that the protection of views was a matter which carried less weight where the applicable Development Plan itself placed less importance on such matters.
A consideration of the report provided to the Development Assessment Panel defeats the argument as to the decision being so unreasonable as to be an inappropriate decision. The material shows that careful consideration was given to the issue of views. The decision itself was rational and could not be said to be capricious or unreasonable. In the circumstances, there is no basis for any claim of Wednesbury unreasonableness. That claim therefore has no reasonable basis and the City of Marion, if it had been necessary, would have been entitled to the summary dismissal of Wednesbury aspect of the claim.
Separately, the plaintiff asserts that not all of the relevant provisions of the Development Plan were properly considered by the Council. The Development Act provides that approval is not to be given where a proposed development is seriously at variance with the relevant Development Plan.[21] It follows that, in respect of a particular development application, a planning authority must make an assessment whether a development is not seriously at variance with the relevant Development Plan.
[21] Development Act 1993 s 35(2).
A Development Plan contains statements of planning objectives and principles which are to be applied sensibly and flexibly to particular circumstances.[22] A failure to consider relevant matters, or the taking into account of irrelevant matters, would provide the plaintiff with a proper basis for judicial review. However, having regard to the planner’s report which is in evidence and the submissions of the plaintiff, I do not accept that he has established that a reasonable basis exists to pursue this particular ground.
[22] Alexandrina Council v Strath Hub Pty Ltd [2003] SASC 382.
The orders are:
1The application for an extension of time within which to commence these proceedings is dismissed.
2The action is dismissed.
I will hear the parties on any consequential matters.