Alexander v The City of Marion - [2010] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
ALEXANDER & ANOR v THE CITY OF MARION & ORS
[2010] SASC 86
Judgment of The Honourable Justice Bleby
1 April 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
Application for permission to proceed with an action for judicial review – application of second and third defendants for Development Plan consent granted by first defendant – plaintiffs seek order in the nature of certiorari quashing development consent – plaintiffs further seek declaratory and injunctive relief - whether any planning authority could reasonably form the assessment that the proposed development was not seriously at variance with the Development Plan - permission to proceed with an action for judicial review refused.
Supreme Court Civil Rules 2006 (SA) r 200; Supreme Court Act 1935 (SA) s 31; Development Act 1993 (SA) s 33, s 35, referred to.
Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission (1999) 74 CLR 557, applied.
Buck v Bavone (1976) 135 CLR 110; Hutchens v City of Holdfast Bay (2007) 98 SASR 412; Hassen v Murray Bridge District Council (1984) 35 SASR 448; Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24; Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Bromley London Borough Council v Greater London Council [1983] 1 AC 768; Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Corporation of the City of Enfiled v Development Assessment Commission (2000) 199 CLR 135, considered.

ALEXANDER & ANOR v THE CITY OF MARION & ORS
[2010] SASC 86
Land and Valuation Division

BLEBY J. Although not expressed as such, I treat this application as an application pursuant to r 200 of the Supreme Court Civil Rules 2006 (SA) for permission to proceed with an action for judicial review. The plaintiffs’ inter partes summons seeks an order for judicial review and for declaratory and injunctive relief in respect of a decision of the defendant Council on an application for Development Approval. By that decision the Council granted the application of the second and third defendants for Development Plan consent to proposed alterations to their house situated on the northern side of Trumara Road, Marino. The plaintiffs’ house is situated opposite that of the second and third defendants and on the southern side of Trumara Road.
The application for judicial review seeks an order in the nature of certiorari quashing the Development Plan consent. The plaintiffs also seek a declaration pursuant to s 31 of the Supreme Court Act 1935 (SA) and r 200(7) of the Supreme Court Civil Rules that the proposed development is seriously at variance with the Council’s Development Plan, is invalid and is of no effect. They further seek a declaration that the Development Plan consent is invalid and of no effect and that the proposed development is not an approved development under s 33 of the Development Act 1993 (SA). Finally, they seek an order in the nature of an injunction preventing the second defendants from implementing or establishing the proposed development.
In its terms the plaintiffs’ application seeks permission to serve the proceedings. That is no longer a requirement under the present Rules. In the circumstances I directed that the application be treated as an application for permission to proceed and that the inter partes summons be served to enable the defendants to be heard on the interlocutory application. The defendant Council opposed permission to proceed. The second and third defendants, the applicants for development approval, chose not to make any submissions on the application.
The plaintiffs only require permission to proceed in respect of the action for judicial review. They do not require permission to proceed in respect of the other relief claimed. However, the application for declaratory relief and injunction would appear to turn on the same question. I will return to the issue of declaratory and injunctive relief in due course. I will deal first with the primary application, namely permission to proceed for judicial review.
Rule 200(3) of the Supreme Court Civil Rules 2006 requires that the summons be accompanied by an affidavit setting out, in detail, the grounds on which the applicant seeks an order for judicial review. Apart from expressing concern at the obstruction of their existing views of the coast of Seacliff and Brighton, the plaintiffs do not set out, in any comprehensible way, the grounds for judicial review on which they rely, other than an allegation that the proposed development is seriously at variance with the relevant Development Plan. It is not suggested that the Council assigned an incorrect category to the proposed development under s 38 of the Development Act or that there was some other procedural flaw in the Council’s treatment of the application.
The fact that the plaintiffs only rely on the allegation that the proposal is seriously at variance with the Development Plan is borne out by the declaratory and other relief claimed in the inter partes summons. That relief would appear to arise only if the declaration is made that the development is seriously at variance with the Council’s Development Plan. I therefore turn to consider whether permission to proceed should be granted on the ground that the proposal is seriously at variance with the Development Plan.
Section 35(2) of the Development Act provides:
(2)Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
Put another way, Development Approval may only be granted if the Council, as the relevant planning authority, assesses the development as not being seriously at variance with the Development Plan. In this case the Council’s delegate, the Development Assessment Panel, considered that question and assessed the proposed development as not being seriously at variance with the Development Plan.
In considering an application for judicial review of that decision it is not for this Court itself to determine whether the proposed development is seriously at variance with the Development Plan. In Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission[1] this Court said:[2]
The language used [in s 35(2)] is apt to achieve the result that the relevant authority lacks power or jurisdiction to consent only if it assesses the proposed development as being seriously at variance with the relevant Development Plan. What that means is that power or jurisdiction to consent is not absent because the Court, in proceedings by way of judicial review, decides that the proposal is seriously at variance with the Plan. The power or jurisdiction is lacking only if the relevant authority has made that assessment. The distinction between power or lack of power turning upon the existence of a state of affairs determined objectively, and power or lack of power turning upon the formation of an opinion or the making of an assessment by the person on whom the power is conferred, is well known in administrative law, and its consequences in terms of judicial review are equally well known: see, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 at 430 per Latham CJ; Sutherland Shire Council v Finch at 666 per Gibbs CJ; Foley v Padley (1984) 154 CLR 349 at 352-353, per Gibbs CJ, at 363, Wilson J, at 369-370 per Brennan J, at 375 per Dawson J; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 302-303 per Dawson, Gaudron, McHugh, Gummow, Kirby JJ. The Parliament must have had this distinction in mind, and must have deliberately chosen the language that it used to ensure that the validity of a planning consent no longer depends upon the Court's own assessment of whether a development is seriously at variance with the Development Plan.
In short, the power to consent, or the lack of power to consent, is conditional upon the assessment by the relevant authority of the proposed development.
[1] [1999] SASC 414, (1999) 74 SASR 557.
[2] Ibid [133]-[134], 579, Doyle CJ and Bleby J, Wicks J concurring.
As the Court noted in that case, this does not mean that such a decision is not reviewable. The Court adopted[3] the following observation of Gibbs J in Buck v Bavone[4] dealing with a power to take action when a certain person or body is satisfied of the existence of certain matters:[5]
Whether the decision of the authority under such a statute can be effectively reviewed by the Courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the Courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the Courts.
[3] Ibid [139], 580.
[4] (1976) 135 CLR 110.
[5] Ibid 118-119.
This court then concluded:[6]
To use the terminology used in some of the submissions before us, and in some of the cases and some of the texts, the "jurisdictional fact" is not that the development is seriously at variance with the Development Plan, but the assessment by the relevant authority that the development is seriously at variance. Or, to be more precise, in the present case an absence of power or jurisdiction to consent turns not upon the fact of the development being seriously at variance with the Plan, but upon the assessment by the DAC that it is seriously at variance. The validity of an assessment that the development is not seriously at variance may be reviewed.
It is implicitly required by s 35(2) of the Act that, before a consent is granted, the relevant authority must make an assessment that the development is not seriously at variance with the relevant Development Plan. However, the power of the Court to invalidate a consent will turn upon whether the relevant authority directed its mind to that issue, and the validity of the decision that it made. The power of the Court to invalidate a planning consent does not turn upon the Court's own assessment, at least directly, of whether the development is seriously at variance with the Development Plan.
[6] [1999] SASC 414, [145]-[146], (1999) 74 SASR 557, 581-582.
In this case the Development Assessment Panel clearly addressed the question whether the proposed development was seriously at variance with the Development Plan. It had before it a recommendation from its Senior Development Officer - Planning that:
(b)The proposed development is not seriously at variance to the Marion (City) Development Plan;
…
The minutes of the Development Assessment Panel held on 4 November 2009 record that the Panel resolved (among other things) that:
(b)The proposed development is not seriously at variance to the Marion (City) Development Plan;
…
The Decision Notification Form of the Council recorded as reasons for the decision (among other things):
Consent is granted as the proposed development is considered to accord sufficiently with the provisions of the Development Plan.
It is not suggested that the Council or its Development Assessment Panel misdirected itself in law, that it failed to consider matters that it was required to consider or that it took irrelevant matters into account in reaching that decision.
The plaintiffs’ principal concern before the Council and in their affidavit in support of this application was the obstruction that they would suffer to their coastal views if the project went ahead. The material on that topic before the Development Assessment Panel included an exhaustive analysis of the likely obstruction of those views by the Senior Development Officer - Planning, accompanied by a series of photographs taken from various parts of the plaintiffs’ residence indicating, with some precision, the likely effect of the proposed development on the plaintiffs’ views. The Panel also had the benefit of substantial written and oral submissions on behalf of the plaintiffs on the same topic.
The Panel’s attention was drawn to all relevant provisions of the Development Plan including the following Statement of Desired Character of the Residential (Foothills) Zone in which the land is located:
It is important when designing new buildings and extensions (and associated finished levels and decks) on sloping sites to pay considerable attention to, and to reduce the potential impact on, the privacy and amenity of existing development.
The Panel was informed of the expression of the opinion of a judge of this Court on the relevance of obstruction of views to the planning process in Hutchens v City of Holdfast Bay[7] that:
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.
[7] [2007] SASC 238, (2007) 98 SASR 412.
As has been noted on a number of occasions, Development Plans are not documents that prescribe a series of legal obligations.[8] I noted in Alexandrina Council v Strath Hub Pty Ltd[9] that a Development Plan contains a statement of planning objectives and principles which, as a general rule, should be applied. I said:[10]
It contains statements of planning objectives and principles to be applied sensibly and flexibly to particular circumstances. However, that does not mean that its objectives and principles may be ignored because it may seem convenient to do so in a particular case.
…
An important factor in making the assessment will turn on the terms of the relevant part of the Development Plan itself. Some Development Plans or parts thereof will be in general terms and will allow for a range of possibilities within a particular zone. Others will be more particular.
[8] Hassen v Murray Bridge District Council (1984) 35 SASR 448.
[9] [2003] SASC 382, (2003) 129 LGERA 389.
[10] Ibid [27], [30]; 397-398. See also Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120, [40], (2008) 163 LGERA 24, 36.
It should also be noted that in Hutchens v City of Holdfast Bay[11] the relevant Development Plan contained many more specific provisions relating to protection of coastal views[12] than the one from this Development Plan quoted above. There were many other relevant objectives and principles which the Council in this case was also required to and did take into account.
[11] [2007] SASC 238, (2007) 98 SASR 412.
[12] See Ibid [38]-[39], 427.
Absent any misdirection in law, a failure to consider relevant matters and taking into account any irrelevant maters, the only ground available to the plaintiffs for judicial review in this case is that no planning authority could reasonably form the assessment that the proposal was not seriously at variance with the Development Plan. That is not the same as this Court forming its own view on the merits of the proposal and its compliance or otherwise with the requirements of the Development Plan. This Court’s consideration is confined to the question of what is commonly known as Wednesbury unreasonableness.[13] An unreasonable decision in that sense has been described by Lord Diplock as one which “looked at objectively, [is] so devoid of any plausible justification that no reasonable body of persons could have reached [it]”,[14] or as Lord Brightman said, the unreasonableness must be “verging on an absurdity”.[15] Other epithets commonly used in this context are “irrational” and “acting perversely”.[16] It is particularly difficult to establish unreasonableness “where the matter of which the authority is required to be satisfied is matter of opinion, policy or taste”.[17]
[13] Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229-230.
[14] Bromley London Borough Council v Greater London Council [1983] 1 AC 768, 821.
[15] Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484, 518.
[16] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40]-[41], (1999) 197 CLR 611, 626-627.
[17] Buck v Bavone (1976) 135 CLR 110, 118-119, Gibbs J.
In a case such as the present, the Court does not have the benefit of reasons of the Development Assessment Panel for reaching the opinion that the proposed development was not seriously at variance with the Development Plan. However, that does not mean that the principle can have no application. The unreasonableness or otherwise of the decision can be assessed by consideration of the requirements of the Development Plan itself.
It follows that the question on this application for permission to proceed is whether there is an arguable case that the decision of the Council is so unreasonable, in the sense discussed above, that it cannot be permitted to stand. It is not a question whether, as the plaintiffs’ counsel seemed to suggest, there is an arguable case that the proposed development is seriously at variance with the Development Plan.
It appears from the relevant provision of the Development Plan that the Council should have regard to the amenity of existing development, including that of the plaintiffs. So much is apparent from the extract of the Development Plan quoted by the Council’s Senior Development Officer - Planning in his report to the Development Assessment Panel as quoted above. However, protection of coastal views receives less attention in this Development Plan than in some others.[18] The report also discussed extensively the question of the impact of the proposed development on the views of occupants of premises to the south of the proposed development, including those of the plaintiffs. As I previously noted, the report was accompanied by photographs from the plaintiffs’ premises showing the effect of the proposed development on the views from various levels of the plaintiffs’ house. A number of other relevant objectives and principles of the Development Plan were also discussed at some length. The report before the Panel concluded with a recommendation that the proposed development was not seriously at variance with the Development Plan and that it demonstrated “general compliance” with the Development Plan. On a perusal of the report, that is not an unreasonable conclusion.
[18] As, for example, the Development Plan considered in Hutchens v City of Holdfast Bay [2007] SASC 238, (2007) 98 SASR 412.
I am aware that the plaintiffs have obtained an opinion from an independent planner that the proposal is seriously at variance with the Development Plan in its effect on the views of the plaintiffs, and by the alleged failure to comply with Zone Principle of Development Control No 6 relating to a desired height limit above ground level, in that it exceeds that limit by 0.67 metre. The application of that Principle was also considered by the Panel. Indeed, it was only because of that height difference that Zone Principle No 12 brought the development into Category 2 which enabled the plaintiffs and others to make representations to the Council.

However, the point is that two apparently competent planners have expressed differing views as to whether the development is seriously at variance with the Development Plan. Whether it is or not is a matter of planning judgment on which the Council was required to form an opinion. On the material presented by the plaintiff I am unable to conclude that there is an arguable case that no council, acting reasonably, could form the opinion that the development was not seriously at variance with the Development Plan. Accordingly, permission to proceed with the action for judicial review must be refused.
That leaves for consideration the claims for declaratory and injunctive relief for which permission to proceed is not required. The foundation for that relief as claimed is that the development “is seriously at variance with the City of Marion Development Plan, is invalid and of no effect”. It is true that the validity of a decision of this type can be attacked by equitable remedies and by seeking declaratory relief.[19] However, whether the remedy sought is by way of judicial review or by way of some other remedy, the issue for the Court to determine is essentially the same. As is apparent from those parts of the decision of this Court in Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission[20] quoted above, the question is not whether this Court forms the view that the proposed development is seriously at variance with the Development Plan, but whether no Planning Authority, acting reasonably, could form the view that it is not. In other words, the same question will fall for determination in the alternative relief claimed by the plaintiffs. Accordingly, it will be for the plaintiffs now to decide whether they wish to proceed with the declaratory and injunctive relief which they claim. If they intend to proceed it would be appropriate that further management and hearing of the action be assigned to Kourakis J, the other judge of the Land and Valuation Division of this Court.
[19] See Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, [16]-[23], (2000) 199 CLR 135, 143-146.
[20] [1999] SASC 414, (1999) 74 SASR 557.