Bade v Rural City of Murray Bridge - [2008] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
BADE v RURAL CITY OF MURRAY BRIDGE & DAVIES
[2008] SASC 189
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
9 July 2008
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS
ENVIRONMENT AND PLANNING - BUILDING CONTROL - OTHER MATTERS - OFFENCES AND PENALTIES - NON-CONFORMITY OF WORK WITH APPROVAL
Adjoining leasehold allotments - Development authorisation for construction of house extension and boat shed - Whether constructed in accordance with development authorisation - Whether in accordance with approved plan - Whether subsequent alteration approved - Whether development substantially or fully completed within 3 years - Whether approved development - Second development application by addition to first development - First development not approved development - Whether second development non-complying development - Whether second development approval invalid - Whether plaintiff should be granted an extension of time within which to bring application for judicial review - Prejudice to defendant - Construction completed - Extension of time granted - Appeal allowed - Development authorisation for second development quashed.
Development Act 1993 (SA) 4, 32, 33, 35, 38, 40, 44, 45, 55, 56, 84, 85, 86, 105; Encroachments Act 1944 (SA) 2; Supreme Court Civil Rules 2006 38, 117, 200; Supreme Court Rules 1987 98.06; Development Regulations 1993 16, 32, 48, referred to.
Minister for Environment and Conservation v Wylie Group Pty Ltd (2005) 91 SASR 242; Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435; Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467; Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Jackamarra v Krakouer (1998) 195 CLR 516, applied.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, distinguished.
Bade v Rural City of Murray Bridge and Anor [2008] SASC 9, not followed.
Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, discussed.

BADE v RURAL CITY OF MURRAY BRIDGE & DAVIES
[2008] SASC 189
Full Court: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ: I agree with the orders proposed by Bleby J and with his reasons. There is nothing that I wish to add.
BLEBY J.
Introduction
River-front residential allotments proximate to Adelaide are a limited and increasingly valuable commodity. It is not surprising that those entitled to them will jealously guard their right to views of the river and the amenity of their allotments, particularly where the allotment is no more than 12 metres wide with a total area of a little over 400 square metres. Indeed, the surprisingly small size of the allotments in this case may well have contributed to the problems giving rise to this litigation.
The allotments in questions are not freehold. They are two of a number of leasehold allotments at a location known as “Greenbanks”, not far from Murray Bridge. The leases were originally granted for a period of 99 years from 1 July 1963 but were subsequently extended for a further term of 999 years from 1 July 2062.
The plaintiff, Mrs Bade, is the lessee of what is known as lot 16. Its northern boundary is the River Murray. She acquired the lease in December 2003.
The second defendant, Mrs Davies, is the lessee of lot 15 which adjoins lot 16 on its western boundary. Until July 2005 Mrs Davies was also the lessee of lot 14, the next allotment to the west. All three allotments are of similar size, having a river frontage on the northern boundary and a private road as the southern boundary. Each of them has a substantial natural downward slope from south to north at the river’s edge.
There is erected on Mrs Bade’s land a dwelling which is at ground level at its southern end but which, owing to the slope of the land, is significantly built-up at its northern end facing the river. The house was on the allotment when Mrs Bade purchased the lease.
At that time there had been built on lot 15, in circumstances which I will later describe, a boat shed wide enough to accommodate two garage roller doors. Those doors faced the river. The boat shed was approximately 10 metres wide and occupied almost the whole of the width of the allotment. On lot 14 there had been erected another single unit dwelling which is still there and which occupies most of the width of that allotment.
It is common ground that the eastern wall of the boat shed and its footings, while on lot 15 at the southern end, progressively encroach onto lot 16 so that at its northern end the encroachment is 0.56 of a metre.
In circumstances which will later be described, Mrs Davies commenced building a single level extension by way of a dwelling on top of the boat shed with a balcony extending some distance beyond the northern face of the boat shed and with the rear of the dwelling continuing at ground level south of the boat shed. Mrs Bade claims that the addition of this dwelling to the boat shed is not an approved development for the purposes of s 32 of the Development Act 1993 (SA).
The proceedings
By her inter partes summons Mrs Bade sought the following declarations:
1.A declaration that the existence and maintenance of the Boat Shed building …constitutes a trespass to the Plaintiff’s land.
2.A declaration that construction of the Boat Shed was not substantially or fully completed in accordance with the original approval granted by the Council, and by operation of section 40(2) of the Development Act 1993 and regulation 48(1) of the Development Regulations 1993, any approval for the Boat Shed lapsed.
3.A declaration that the construction of the second storey addition to the Boat Shed constitutes a breach of sections 32, 44(2) and 45(1) of the Act.
4.A declaration that any Development Approval issued by the Council for the construction of the second storey addition to the Boat Shed is invalid, and of no effect, for reason that:
4.1 The Council did not give notice of the application for the second storey addition as required by section 38 of the Act; and/or
4.2 In giving approval for the second storey addition, the Council failed to have regard to relevant considerations, namely:
4.2.1.that the initial approval for the Boat Shed had lapsed; and/or
4.2.2that the existing Boat Shed building encroaches upon land not owned or occupied by Davies, and as a consequence the proposed addition to the Boat Shed cannot lawfully be constructed by Davies; and/or
4.3 The decision to grant approval for the Boat Shed addition is so unreasonable, that no reasonable planning authority could – in all of the circumstances – granted approval (sic).
At the trial Mrs Bade abandoned the ground contained in paragraph 4.3. By her summons she sought, in addition, an order in the nature of certiorari quashing the development approval. She did not seek an order for removal of the building.
The first defendant, the Rural City of Murray Bridge (“the Council”) did not take any part in the proceedings. At the outset, by is counsel, it stated that it would abide the order of the Court and did not wish to be heard other than on the question of costs.
The approval under attack having been given on 24 November 2005, the time limited by r 98.06 of the Supreme Court Rules and by r 200(2) of the Supreme Court Civil Rules 2006[1] for commencing judicial review proceedings expired on 24 May 2006. Against the opposition of Mrs Davies, the trial Judge extended the time within which Mrs Bade could bring her proceedings to the date on which they were commenced, namely 13 October 2006. However, the Judge declined to make the declarations sought and dismissed the application of Mrs Bade to quash the decision of the Council granting development approval for the erection of the dwelling.[2] He also made further orders with respect to a process for resolving the problem of the encroachment, but we are not directly concerned with those orders or with those ongoing proceedings.
[1] Those rules commenced on 4 September 2006.
[2] See Bade v Rural City of Murray Bridge and Anor [2008] SASC 9.
Mrs Bade now appeals, on various grounds to be discussed, against the Judge’s order dismissing her application. Mrs Davies cross-appeals against the grant of the extension of time within which to commence the proceedings and, by way of notice of contention, seeks to justify the Judge’s decision on other grounds.
The facts
The essential facts were not in dispute. However, the trial Judge did hear disputed oral evidence relevant both to his discretion to grant the relief sought and to the extension of time. The trial Judge’s findings in respect of those disputed facts were not challenged on the appeal. Accordingly, the summary of the facts which follows is of facts which were either undisputed or which were found by the Judge.
In December 1997 a company controlled by Mr and Mrs Davies acquired the leases to lots 14 and 15. At that time a dwelling had been constructed on lot 14. Lot 15 was vacant and unimproved. Lot 14 was later sold, and Mrs Davies is now the registered proprietor of the lease of lot 15.
In February 1999 Mr and Mrs Davies caused a survey to be made of lots 14 and 15. They retained a copy of the survey plan.
On 3 June 1999 Mr Davies lodged a development application form with the Council in respect of lots 14 and 15 describing the proposed development as “Additional Bedrooms, New Boat Shed”. Mr Davies was described in the application as “Owner/builder”. The plans showed the development as an extension to the existing house on lot 14 by the construction of two bedrooms and a bathroom at the southern end of the house, all on lot 14, with a living area extending eastwards onto lot 15, part of which would be above a newly constructed boat shed extending to the eastern boundary of lot 15. The new living area was to open onto the roof of the boat shed as an open deck which was to be linked to the front balcony and decking of the house on lot 14. Along the eastern boundary of lot 15 to the south of the boat shed there was to be constructed a ramp with retaining walls on either side providing rear or southern access to the eastern side of the boat shed.
On 3 August 1999 the Council granted final development approval for the proposed development subject to a number of conditions, one of which was that the development proceed in accordance with the plans and details submitted with the application. Condition 4 was not a condition but a disclaimer by the Council for any loss which may occur as a result of flooding. The condition stated in part:
The applicant is advised that the proposed development will be located within the River Murray Flood Zone, which is subject to periodic flooding which may cause extensive or total loss.
Construction commenced in November 1999. However, it was limited to the addition of the two bedrooms and bathroom to the rear of the house on lot 14 together with the concrete slab floor, concrete walls and ultimately the steel frame, roof and panel doors on the front of the boat shed on lot 15. A small encroachment of the house on lot 14 onto lot 15 was removed. In other words, the boat shed on lot 15 was a completely separate structure from the extended house on lot 14.
As found by the trial Judge, the boat shed, as constructed, did not comply with the plans of the development as approved in two respects. In the first place, the boat shed was constructed closer to the bank of the river than was shown on the plans. In the second place, it was constructed so that the north-eastern corner of the boat shed encroached onto lot 16 in the manner previously described.
The rear access ramp to the boat shed was built with its retaining walls. However, that was later filled in either in late 2004 or early 2005. That filling necessarily entailed the construction of a retaining wall at the rear of the boat shed to replace the opening to the ramp before the ramp was filled in. No development approval was obtained for the construction of that wall or for the filling in of the ramp area.
The development approval having been granted on 3 August 1999, the effect of s 40 of the Development Act and reg 48 of the Development Regulations 1993 was that, if development had been lawfully commenced by “substantial work” on the site within 12 months from the operative date of the approval, the approval lapsed on 3 August 2002 “unless the development [had] been substantially fully completed” by that time. It was not in dispute that the development had been commenced by substantial work on the site within 12 months from the operative date of the approval, nor was it disputed that the development, as approved, had not been substantially or fully completed by 3 August 2002. The original development approval therefore lapsed at that time.
Section 40(3) of the Development Act provides that a relevant authority may, on its own initiative or on the application of a person who has the benefit of any relevant development authorisation, extend the period prescribed by r 48 of the Development Regulations 1993 (SA). Regulation 48(2) provides that that may be done either when the relevant consent or approval is given or “at such later time as may be appropriate”. No such extension has ever been applied for or given.
As mentioned above, Mrs Bade purchased the lease of lot 16 in December 2003. She was unaware at that time of the encroachment of the boat shed onto lot 16 and that the development approval for the boat shed and associated structures had lapsed.
Late in 2004 Mr and Mrs Davies decided that they would try to sell lots 14 and 15 separately. They had plans prepared for the construction of a dwelling above the boat shed. Theses plans, as subsequently lodged with the Council for development approval, are described as “Proposed two-storey extension” and are dated 13 January 2005. The filling in of the ramp at about that time is consistent with this decision.
Mr and Mrs Bade were unaware of the preparation of those plans. In February 2005 they caused their own survey to be made of lot 16. It was that survey which disclosed the encroachment of the boat shed onto lot 16. On 11 April 2005 Mr Bade wrote to the Council giving notice of the encroachment and asking the Council “to inspect the site and look into this issue”. They enclosed a copy of the survey plan showing the encroachment. Mr Bade subsequently spoke with council officials who informed him that the Council would not act because it was a matter to be resolved between neighbours.
From advertisements for the sale of lot 15, Mr and Mrs Bade became aware that lot 15 was for sale. They sent a copy of the 11 April letter to the selling agent because they did not know the usual residential address of Mr and Mrs Davies. Mr Davies said in evidence that that was the first he knew of the encroachment.
An on-site meeting took place between Mr Bade and Mr Davies in April 2005 to discuss the encroachment. Mr Bade said that he and his wife intended to redevelop lot 16 and build along the common boundary, but were unable to do so because of the encroachment. Mr Davies told Mr Bade that he and his wife intended to build on top of the boat shed, but no details were given, neither was the existence of any plans disclosed. Mr Bade made it clear that he would be opposed to any further encroachment on lot 16 by building on the existing encroachment and that he did not want to lose any river frontage by an adjustment of the boundary to accommodate the encroachment. He also expressed concern that building on top of the boat shed would impair the views of the river from lot 16. The Judge found that a development on top of the boat shed had a real potential to impair views from lot 16. Mr Bade maintained that any building on the boat shed should not be any further forward than the northern wall of the dwelling on lot 14.
While many aspects of the conversation which took place on that day were disputed, what I have recorded accords with the findings of the trial Judge, which findings he summarised as follows:
1Bade knew that the Davies intended to erect a dwelling over the boat shed but Davies did not show Bade any plans or inform him where he could inspect the plans;
2Davies informed Bade that he and his wife were unwilling to remove the encroachment; and
3Davies knew that the Bades wanted the encroachment removed.
In July 2005 Mr and Mrs Davies sold the lease to lot 14.
By application dated 22 September 2005 Mr Davies and one John Bratkovic, again described as “Owner/builder” applied to the Council for development approval for what was described as a “Detached Dwelling”. The accompanying plans were those dated 13 January 2005 showing a single level dwelling to be built on top of and supported by the boat shed, with a balcony overhanging the northern wall of the boat shed by more than 1.5 metres and with the rear of the house extending at ground level beyond the southern walls of the boat shed. The whole of the dwelling was on one level with internal stairs leading down into the boat shed, thus piercing the roof of the boat shed. The plan showed the building as being against the eastern boundary of lot 15. It did not disclose the encroachment of either the existing boat shed or of the proposed dwelling above.
The Council dealt with the application as a Category 1 development for the purposes of s 38 of the Development Act. This meant that, if the assignment of that category was correct, no notice of the application was required to be given to anyone. No notice was in fact given to anyone. Development approval was granted subject to certain conditions, which are immaterial, on 24 November 2005. Mr and Mrs Bade were unaware of the application and were unaware of the approval.
Mr and Mrs Davies had a potential purchaser for lot 15. Mr and Mrs Davies and their potential purchaser were aware of the encroachment. Mr Davies sent a draft letter to Mrs Bade dated 6 December 2005. This letter was addressed to Mrs Davies. Mr Davies’ intent was that it be signed by Mrs Bade acknowledging the encroachment, undertaking to allow it to remain, agreeing to take no legal action against any person having title to lot 15 for so long as the encroachment remained and undertaking, when selling lot 16, to sell it subject to the encroachment and to have the purchaser sign a similar letter of undertaking. Mr Davies informed Mr Bade that he would be sending the letter with a request that it be signed, but said nothing about the development approval which had been obtained.
There were subsequent discussions about the letter and the encroachment. Mrs Bade did not sign the letter and the dispute about the encroachment was not resolved.
On 21 August 2006 Mr Bade again wrote to the Council pointing out that the boat shed was not in accordance with the development approval given on 3 August 1999, that that approval had expired, and that as lot 14 had been sold, it was unlikely that development in accordance with that approval could ever take place. He also drew the Council’s attention to the fact that the boat shed was further north than shown on the plan and that it encroached onto lot 16. Being aware of Mr and Mrs Davies’ intention to build on the boat shed at some stage, he asked the Council to scrutinise and thoroughly investigate any future plans submitted for the development of lot 15. The Council did not respond to the letter.

On 3 October 2006 Mr Bade delivered another letter to the Council complaining that his earlier letter had been ignored and requesting urgent attention to the matters raised in that letter. The Judge found that Mr and Mrs Bade were then still unaware that Mr Davies had obtained development approval to construct the dwelling on the boat shed.
Mr and Mrs Bade first became aware of the development on top of the boat shed on 3 or 4 October 2006 when Mr Bade saw a crane lifting steel girders into position to support the floor of the dwelling. Mr Bade immediately informed his wife of that fact and went to the Council’s offices. He was then informed that development approval had been granted for the dwelling as an addition to the boat shed. He then immediately instructed solicitors to act on their behalf. Photographs of the building were taken on 8 October. On 9 October the Bades’ solicitors wrote to the Council seeking copies of the relevant documents relating to the approval. The solicitors also wrote to Mr and Mrs Davies asserting that the development approval had been obtained unlawfully and was invalid, and gave notice of Mrs Bade’s intention to institute judicial review proceedings to set aside the approval. The letter requested that work cease immediately on the construction and that copies of plans and approvals be supplied.
The Judge found that the letter was received by Mr and Mrs Davies on 13 October, when they returned to their Adelaide address.
The proceedings were issued on 13 October 2006. Leave to serve was granted on 17 October and the proceedings were served on 20 October. At that time, construction of the walls, windows and doors, roof frame, eaves and timber decking had been completed, but the roof cladding had not been attached. The render on the outside walls had been completed but the internal gyprock lining and internal fit out of the premises had not been done. The building work was completed on 7 November 2006.
The zoning of the land
It is convenient at this point to note the zoning of the land, the possible effect of that zoning and the influence of that zoning on the proceedings to date. In the Murray Bridge (RC) Development Plan the only map which includes the location of the land in question is Map MuBr/8. That map does not depict the individual allotments, as they are leasehold allotments forming part of a larger area of land comprised in a single certificate of title. At that point on the River Murray the land is located on the southern side of the river channel. On either side of the channel is depicted what is known as the Flood Zone. The boundary of the Flood Zone shown on Map MuBr/8 is irregular and extends, in some parts, well beyond the river channel. In other parts, including where the allotments in question are located, it is relatively close to the channel of the river. The line depicting the zone boundary is described in the plan as “1956 Flood Boundary”. From the scale of the map it is quite impossible to tell precisely where that line falls on the subject allotments. The allotments extend, at their northern end, to the water’s edge at normal pool level. The 1956 flood was a very substantial flood. The 1956 Flood Boundary must be somewhere south of the northern allotment boundary. It is therefore clear that the lower parts of the allotments must be within the Flood Zone. The upper parts of the allotments are within a zone known as the Fringe Zone. Each allotment is therefore within two zones defined in the Development Plan.
The precise location of the zone boundary assumes some importance in respect of a residential development on an allotment, portion of which is within the Flood Zone. Principle 38 of the Development Plan provides that a number of kinds of development are non-complying in the Flood Zone. So far as is relevant that includes:
(4)The construction of, conversion of, alteration of, or addition to any building other than:
(a)     an existing lawfully erected dwelling where:
(i)the requirements of the South Australian Health Commission and Local Government for waste water and effluent disposal for permanent occupation of the dwelling are met or provided for in the development application; or
(b)     a garage or a shed, provided:
(i)it is constructed in association with an existing, lawfully erected dwelling; and
(ii)the number of ancillary buildings used for storage purposes on the site or allotment is not increased; and
(iii)it is fitted with roller doors, removable panels or similar on two ends or sides (whichever elevations face the direction of the flow); or
(c)     a carport, or a verandah, or a pergola which is to be constructed in association with an existing, lawfully erected dwelling; or
(d)     …
There are some difficulties in the interpretation of that paragraph. However, it is clear that the construction of a new dwelling within the Flood Zone is a non-complying development, and that in general, the only relevant development that is excluded from the class of non-complying development within the Zone is the conversion or alteration of, or the addition to a dwelling itself, or the construction, conversion or alteration of or the addition to a garage, shed, carport, verandah or pergola in association with a dwelling but only where, in each case, the dwelling itself is an existing lawfully erected dwelling. That is most likely to occur where the dwelling was erected or its construction was authorised in the Zone before the creation of the Zone.
On the assumption that his client’s boat shed and dwelling were within the Flood Zone, Mr Henry, counsel for Mrs Davies, argued that the word “it” in sub-paragraph (b)(i) referred to the boat shed which had been constructed in association with an existing lawfully erected dwelling, namely the dwelling on lot 14. As the dwelling on lot 15 was an alteration or addition to that garage or shed, it was not a non-complying development. I reject that argument as being contrary to both the letter and spirit of the Development Plan.
In the first place, in my opinion the word “it” in sub-paragraph (b)(i) relates to the subject of the development, whether it be the construction of, conversion of, alteration of or addition to a garage or shed. Such a development will be non-complying unless that development is constructed in association with an existing lawfully erected dwelling, which this development was not. Secondly, where the principle refers to a building previously constructed, it refers to an “existing lawfully erected” building, not a constructed building. That suggests that the subject matter of this proviso is the development in question. Thirdly, if Mr Henry’s interpretation were to apply, one would expect sub-paragraph (b)(i) to read: “it (the meaning of the existing garage or shed) was constructed …”. The use of the present tense is significant, indicating again that the subject of the proviso is the development in question.
Mr Henry’s argument is also quite inconsistent with the manifest intention of paragraph (4), namely to render non-complying any development in the Flood Zone other than by reference to or in association with an existing lawfully erected dwelling.
It follows that, if the dwelling on lot 15 is wholly or partly within the Flood Zone, it was a non-complying development.
That would have two important consequences. In the first place, s 35(3) of the Development Act provides:
(3)A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a development plan consent unless—
(a) where the relevant authority is the Development Assessment Commission—the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;
(b) in any other case—
(i)unless subparagraph (ii) applies—the Development Assessment Commission;
(ii)in prescribed circumstances—a regional development assessment panel,
concurs in the granting of the consent.
This means that in the case of this development, Development Plan consent could not be granted by the Council unless the Development Assessment Commission concurred in the granting of the consent. That did not happen. It would follow that the consent, and hence the development authorisation, would be invalid on that ground.
The second significant consequence relates to the classification of the category of development for the purposes of s 38 of the Development Act. The Council treated this development as a Category 1 development. If that was correct, none of the notice provisions contained in s 38 would have applied.[3] Section 38(2) provides that whether a development is Category 1 or Category 2 depends on the regulations. By r 32(1) of the Development Regulations, Category 1 developments are those specified in Part 1 of Schedule 9. By virtue of clause 3 of Part 1 of Schedule 9, a non-complying development of this nature which can be included in Category 1 is a development which comprises:
(a)     the alteration of, or addition to, a building which, in the opinion of the relevant authority, is of a minor nature only; or
(b)     the construction of a building to be used as ancillary to or in association with an existing building and which will facilitate the better enjoyment of the purpose for which the existing building is being used, and which constitutes, in the opinion of the relevant authority, development of a minor nature only; or
(c)     the division of land where the number of allotments resulting from the division is equal to or less than the number of existing allotments.
[3]    See Development Act, s 38(3).
It is difficult to see how any development authority could possibly classify this development as falling within any of those paragraphs. If that is so, this would not be a Category 1 development, and the Council would have erred in failing to give notice of the application as required by s 38. Without setting it out in detail, the provisions of Part 2 of Schedule 9 of the Regulations would appear to preclude a non-complying development of this nature from being properly classified as a Category 2 development. If that is so, it would have been a Category 3 development under s 38, requiring public notice of the application.
The reason for explaining the consequences of the zoning in this case will become apparent later in these reasons. I mention it now because it was argued by counsel for Mrs Bade that the development was in fact within the Flood Zone with the consequences I have mentioned.
However, this argument never formed part of the grounds on which Mrs Bade’s application was based. One of the grounds alleged that the development was not a Category 1 development, but for reasons other than its being within the Flood Zone. It was not suggested in the plaintiff’s summons or in the affidavits in support that the application required the consent of the Development Assessment Commission. The evidence before the Judge was not directed towards the precise location of the Flood Zone boundary on Mrs Davies’ allotment.
In order to make good his argument Mr Tredrea, counsel for Mrs Bade, sought to rely on one of the plans submitted with the development application dated 3 June 1999 purporting to show on the plan the 1956 flood level. He also relied on the assertion in condition 4 of the development approval dated 3 August 1999 that “the proposed development [of the boat shed and extensions to the house on lot 14] will be located within the River Murray Flood Zone …”. He also pointed to a council document described as “Development Application Summary” in relation to the 2005 development application which referred to relevant policies contained in both the Flood Zone and Fringe Zone sections of the Development Plan and the ticking of a box against the annotation “Areas deemed at risk of flooding”.
Mr Henry complained, with some justification, that if the issue of the location of the Flood Zone boundary was of such significance, it required better evidence of its location, that the defendant had not been put on notice that that was an issue and that the defendant had been denied the opportunity of leading evidence as to the precise location of the Flood Zone boundary.
At the trial Mr Tredrea pressed the submission, based on the material before the trial Judge, that the proposed development was in the Flood Zone. The trial Judge dismissed the argument in the following terms:
However, an examination of the Council’s Development Plan discloses that allotment 15 is not in the Flood Zone but in the Fringe Zone. This submission therefore fails.
That conclusion was wrong. As I have already pointed out, some part of allotment 15 must be in the Flood Zone. However, in my opinion the issue was not properly joined and there was insufficient evidence on which a conclusion could be reached in these proceedings as to precisely where the Flood Zone boundary is in relation to the dwelling the subject of the application. Furthermore, had the issue of the zoning been raised, with its possible consequences, the Council may have taken a different attitude to its participation in the proceedings. It would almost certainly have been in a position to provide the best evidence as to the location of the zone boundary on the allotment.
For these reasons it would be inappropriate for this Court to make any findings as to the location of the zone boundary and to reach any conclusions as to the consequence which might follow from its location. Nevertheless, as will be seen, the fact that the Flood Zone boundary lies somewhere on lot 15 does assume some importance in the resolution of the appeal.
Whether the boat shed was an approved development
In order to resolve some of the issues on the appeal, it is necessary first to consider whether the boat shed, at the time of the second application for development approval in September 2005, was an approved development. Leaving aside for present purposes the question of the lapse of the development approval, in my opinion, it was not an approved development for three reasons.
In the first place, as the Judge found, the position of the boat shed on lot 15 was further north than as shown in the plan. In the second place, the building encroached onto lot 16, and that was not in accordance with the plan the subject of the development authorisation.
These may both appear to be relatively minor departures from the plan on which the Council’s development authorisation was based. In many cases a departure from the position as shown on the plan of the order that these departures were may well be an immaterial departure from the authorised plan such as not to render the development as constructed an unapproved development. However, in this case, the departures, though relatively slight, were significant for three reasons.
The first reason relates to the size of lot 15. For a building allotment, it is very small and very narrow. Those adjoining it are likewise very small and very narrow. A small variation in the position of a building erected on such an allotment can have a substantial effect on the amenity of neighbouring allotments as well as on the allotments as viewed from the river. The position of a new building in relation to the position of buildings on adjoining allotments will be important in the application to the proposal being considered of the principles of development control contained in the Development Plan. It will be even more significant if, on a sloping allotment, part of the building as proposed is within the Flood Zone or, if not proposed to be in the Flood Zone, is in fact built partly within the Zone.
The second reason is that the plan showed the building as abutting the allotment boundary with lot 16. If the building is not within the allotment boundary it has obvious ramifications for the adjoining owner of an equally small allotment who might also wish to build up to the allotment boundary.
The third reason relates to the nature of the building owner’s interest in the land. Both lots 15 and 16 are leasehold interests. Because of that any building encroachment cannot be resolved in the usual way by this Court under the Encroachments Act 1944 (SA). The only person who may apply to the Court for relief or who can be subjected to an order under that Act is an “owner” of land. That is defined in s 2 as meaning “any person entitled to an estate of freehold in possession …”. It does not include a leaseholder. This renders much more significant any departure from an approved development plan which constitutes an encroachment in respect of leasehold land. There are two possible ways that such an encroachment may be lawfully resolved. One is by the rather blunt instrument of trespass under the common law. The other is where the encroachment constitutes unauthorised development or a breach of the Development Act. In this situation an applicant may apply for relief under s 85 of the Act against the person who is alleged to have breached the Act.[4] However, the relief available is limited.[5] Neither process provides for adjustment of boundaries without agreement.
[4] See para [72] below.
[5] Development Act 1993, s 85(6).
For these reasons it was incumbent on Mr and Mrs Davies to take particular care that their development complied in all respects with what was shown on the plan the subject of their development authorisation.
In all the circumstances these departures from the plans as approved by the Council were material departures from the application as approved by the Council. Condition 1 of the approval was that the development “may proceed in accordance with the plans and details submitted with the application and contained in Development Application 415/251/99, except where varied by the following conditions”. There were no conditions which would justify the two departures in question. The boat shed as built was therefore unauthorised development.
The third reason why the boat shed on which the house was built was not an approved development relates to its subsequent alteration. Even if the boat shed had been constructed strictly in accordance with the plans as approved, the subsequent construction of the retaining wall at the southern end of the boat shed and the filling in of the ramp was never the subject of an application for development approval. It was not approved development. That was an independent reason why the boat shed as constructed at the time of the second application for development approval was not an approved development.
If I am correct in these conclusions, it is possible that an offence or offences may have been committed against sub-ss 44(1) or (2) of the Development Act or may be being committed under sub-s 44(3). Those subsections provide:
General Offences
(1)       A person must not undertake development contrary to this Division.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(2)A person must not undertake development contrary to a development authorisation under this Division.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(3)     A person who has the benefit of a development must ensure that the development is used, maintained and operated in accordance with—
(a)    any development authorisation under this Division; and
(b)any plans, drawings, specifications or other documents submitted to a relevant authority for the purposes of this Division that are relevant to any such approval.
Maximum penalty: $60 000.
The phrase “Additional penalty” signifies that a person who undertakes development in contravention of the subsection is liable, in addition to the other penalty prescribed, to a penalty of an amount not exceeding the cost of the development insofar as it is undertaken in contravention of the subsection.[6] The phrase “Default penalty” signifies that, where a person is convicted of an offence against the subsection and the offence continues after the date of conviction, the person is guilty of a further offence against the subsection, and is liable to a penalty not exceeding the amount of the default penalty for every day the offence continues after the date of conviction.[7]
[6] Development Act 1993, s 4(2).
[7] Ibid, s 4(3).

Section 105(5) of the Development Act provides that a prosecution for an offence against the Act may be commenced within three years after the date of the alleged commission of the offence or, with the authorisation of the Attorney-General, at any later time within ten years after the date of the alleged commission of the offence. It is therefore still possible for a prosecution for breach of s 44 to be commenced, whether for past or continuing offences.
Section 84(2) of the Development Act provides:
(2)If a relevant authority has reason to believe on reasonable grounds that a person has breached this Act or a repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:
(a)     direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;
(b)     direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;
(c)     take such urgent action as is required because of any situation resulting from the breach.
A person who fails to comply with a direction under sub-s (2) is guilty of an offence.[8] However, a direction cannot be given under s 84 if the breach occurred more than 12 months previously.[9]
[8]    Development Act, s 84(11).
[9] Ibid, s 84(12).
If the development was not an approved development for any of the reasons mentioned, it would also have been open to any person to have brought an application under s 85 of the Development Act to the Environment Resources and Development Court seeking the Court to exercise any of the powers provided for in sub-s (6) of that section. Those powers are to:
(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d)require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;
(e)cancel or vary any development authorisation (other than an authorisation granted by the Governor);
(f)require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;
(g)if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages—
(i) if the applicant is a council and the Crown has not become a party to the proceedings—to the council;
(ii) in any other case—into the General Revenue of the State.
However, as with proceedings for a breach of the Act, proceedings under s 85 may be commenced at any time within three years after the date of the alleged breach or, with the authorisation of the Attorney-General, at any later time.[10] It may still be possible to bring such proceedings in respect of any alleged continuing breach of the Act.
[10] Ibid, s 85(18).
The Council had been made aware of the encroachment by Mr Bade’s letter of 11 April 2005. Without an inspection of the development, the Council might have been unaware of the non-compliance with the approved plan in respect of the boat shed’s proximity to the northern boundary of the allotment. Had its officers referred to the 1999 development authorisation, they would have been aware of that aspect of the non-compliance with the approved plan. When the Council received the application for development approval dated 22 September 2005 and the accompanying plans, had its officers compared those plans with the previously approved plans, it would have been obvious that there was an inconsistency between the position of the boat shed shown on the approved plans and its position shown on the plans accompanying the application. It would also have been obvious that the proposed dwelling was to be built over what the previously approved plans showed was a ramp, with no reference to the continued existence of the ramp on the plans lodged. This should have caused some enquiry as to whether some unauthorised development both in the position of the boat shed and in the filling in of the ramp and the construction of the retaining wall had occurred on the site.
However, whether or not the officers of the Council were aware of these problems, the fact of the matter was that the boat shed and the filling in of the ramp as in existence at 22 September 2005 was not approved development. It was presented in the application for development approval as the base on which the single level dwelling would be built. In my opinion, that rendered the development approval of the dwelling on lot 15 invalid unless the application also sought and obtained development approval for the construction of the boat shed in its then position and form, and for the filling of the previously approved ramp.
It was as if the whole of the boat shed had been built without any development approval. In the first 12 months after its construction it could have been the subject of an enforcement notice by the Council under s 84 of the Development Act rendering it liable to possible removal and making good. It could have suffered and could still suffer a similar fate if an application were brought to the Environment Resources and Development Court under s 85 of the Act.
Even if such action was precluded by the limitation periods prescribed in ss 84(12) and 85(18) or if a prosecution for breach of the Act was precluded by s 105(5), it was still unauthorised development on which Mr Davies, in his 2005 application, sought to build. It would make a mockery of the requirements of the Development Act if a person could proceed with an unauthorised development and then rely on it in order to have a further development approved as if that further development were an addition to an existing authorised development. To allow a development application to proceed on such a foundation is to condone development other than in accordance with the Act and to expose the planning laws of the State to possible abuse.
The irresistible inference from the facts is that the Council proceeded on the second application without enquiring as to whether the existing development was an approved development. That was an enquiry which, if reference had been made to the Council’s own records, would have revealed either that the existing development was not approved or that some further enquiry was necessary. The Council should have declined to deal with the application unless it also sought development approval for the existing unauthorised development.
The effect of the lapsed development approval
I have already pointed out that the failure to complete the original development in accordance with the development authorisation within three years had the effect that the original development approval lapsed.[11] I assume for present purposes that the development was an approved development and that it did not fail to qualify as such on the grounds discussed above. I assume that, insofar as the development was commenced, it complied in all respects with the approved plans.
[11] Development Regulations 1993, reg 48.
There is no obligation on a developer to proceed with an approved development. Subject to the operation of ss 55 and 56 of the Development Act discussed below, there is also no obligation on a developer to complete an approved development once it has been commenced. Failure to commence or complete an approved development is not an offence against s 44 of the Act as the development, when undertaken, is approved development. Further, no application could be brought under s 85 of the Act because that only applies where it is sought to remedy or restrain a breach of the Act. These observations are consistent with the decision of the Full Court in Minister for Environment and Conservation v Wylie Group Pty Ltd.[12]
[12] (2005) 91 SASR 242, 250-251, [2005] SASC 127 at [59]-[63].
What I have said so far is subject to the operation of ss 55 and 56 of the Act. Section 55 enables a relevant authority to apply to the Environment Resources and Development Court for one or more of the orders mentioned below in a situation where an approved development has been commenced but not substantially completed within the period prescribed for the lapse of the development approval authorisation. Subsection (3) provides:
Action if development not completed
(3)     The Court may, on the hearing of the application—
(a)     require the removal or demolition of any building;
(b)     require the reinstatement, so far as is practicable, of any land or building to the state or condition that land or building was in immediately before the commencement of the development;
(c)     extend, on such conditions (if any) as the Court thinks fit, the period within which the development may be completed;
(ca)    require the performance of any work;
(cb)   require the making of any application for an appropriate development authorisation under this Act;
(d)     make any further or other order the Court thinks fit.
It is an offence for a person to contravene or fail to comply with an order made under that subsection.[13] Section 56 of the Act relevantly provides:
[13] Development Act 1993, s 55(4).
Completion of work
(1)     Where—
(a)     an approval is granted under this Part; but
(b)     the development to which the approval relates has been substantially but not fully completed within the period prescribed by the regulations for the lapse of the approval,
a relevant authority may, by notice in writing, require the owner of the relevant land to complete the development within a period specified in the notice.
(2)If an owner fails to carry out work as required by a notice under subsection (1), the relevant authority may cause the necessary work to be carried out.
The section makes provision for recovery of the costs of carrying out any such work.
There is no obligation on a relevant authority to invoke the provisions of either s 55 or s 56 of the Act. If no action is taken under those sections, the development will have been an approved development at the time when it was undertaken, but on lapse of the approval it would become unauthorised development but only by virtue of that lapse. However, for the reasons I have already expressed, unauthorised development cannot be used as a base on which to build a further independent development application as if it were merely an extension to an existing lawful or approved development.
A comparison of the plans lodged with the 2005 application with those forming part of the 1999 development authorisation would soon reveal that the development approved in 1999 had not been completed, that that authorisation had lapsed and that the foundation on which the 2005 application was made was not approved development. For that reason also the Council should have declined to entertain the application unless it also sought development approval for the boat shed in its then condition and position. For that reason also the Council’s development authorisation granted on 24 November 2005 was invalid.
Whether the development was a Category 1 development
As previously noted, the Council treated the 2005 application as an application for a Category 1 development and therefore did not give any of the notices required by s 38 of the Development Act for Category 2 or 3 developments. I assume for present purposes that the proposed development was not a non-complying development. The trial Judge found that that was so, but that could only be because of his erroneous finding, previously referred to, that lot 15 was not in the Flood Zone as depicted on the Development Plan.
Mr Henry argued that the development was a Category 1 development by virtue of the provisions of paragraph 2 of Part 1 of Schedule 9 of the Development Regulations. That includes as a Category 1 development the following:
2(1)     Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises—
(a)the construction of any of the following (or of any combination of any of the following):
(i)     one or more detached dwellings;
(ii)     one or more single storey dwellings;
(iii)one or more sets of semi-detached dwellings, provided that no such dwelling is more than two storeys high;
(iv)three or more row dwellings or one or more additional row dwellings, provided that no such dwelling is more than two storeys high; or
(b)the alteration of, or addition to, a building so as to preserve the building as, or to convert it to, a building of a kind referred to in paragraph (a); or
(c)…
The dwelling in question could not be a “detached dwelling” within the meaning of placitum (i) of paragraph (a) because the definition of “detached dwelling” in Schedule 1 of the Development Regulations requires, among other things, that the site on which it is erected has a frontage to a public road. Allotment 15 is the relevant “site”. It does not have a frontage to a public road.
Mr Henry relied on placitum (ii) of paragraph (a), namely that the application was for the construction of a single storey dwelling. It did not matter, he submitted, that that single storey dwelling was to be placed on top of an existing boat shed, thereby resulting in a two-storey building.
Mr Henry’s argument must be rejected. Section 33(1) of the Development Act requires a relevant authority to assess the development against, among other things, the provisions of the appropriate Development Plan. Regulation 16(1) of the Development Regulations provides:
Nature of development
(1)If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
It is clear from the decision of this Court in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd,[14] that what is required to be assessed is the nature of the development resulting from the application, rather than the nature of the application. In that case the planning authority was required to consider the proposed development represented by four separate applications for development of each of four adjoining pieces of land as a waste dump. It was incorrect merely to consider as a discrete development what was proposed by each of the individual applications. In the same way it was necessary to consider this development not as described by the applicant on the notice of application but in the final form of the development proposed. In the case of the developments listed in paragraph (a) of clause 2 of Part 1 of Schedule 9, that is made abundantly clear by the provisions of paragraph (b). It is the final form of the development which must be assessed.
[14] (2001) 80 SASR 435, 441-445, [2001] SASC 409 at [13]-[30].
In this case the description of the proposed development in the application of Mr Davies and Mr Bratkovic was “Detached Dwelling”. The nature of the development could obviously not be dictated by that description. If it were, it would immediately be excluded from the class of Category 1 development for the reason I have previously identified. Even if it were described in the application as a “Single storey dwelling”, the development as proposed was not that. It was more accurately described in one of the plans accompanying the application as “Proposed single storey extension on existing boat garage”. The development that had to be assessed against the various criteria contained in the Development Plan was a two-storey dwelling and boat shed.
Even if I am incorrect in that assessment, and the nature of the building work to be carried out was all that had to be assessed against the provisions of the Development Plan, the proposal was not accurately described as a single storey dwelling. It included the piercing of the roof of the boat shed and the construction of an internal staircase between the dwelling and the boat shed.
For these reasons the trial Judge was correct in holding that this was not a Category 1 development. Neither was it a Category 2 development. It was therefore a Category 3 development. Section 38(5) of the Development Act required that notice of the application be given to Mrs Bade and to the public generally. She had a right to make representations in writing to the relevant authority in relation to the granting or refusal of consent,[15] and a right to be afforded a reasonable opportunity to appear personally or by representative before the authority in support of her representations.[16] She also had a right to be informed of the decision,[17] and a right to appeal to the Environment Resources and Development Court against the decision.[18]
[15] Development Act 1993, s 38(7).
[16] Ibid, s 38(10).
[17] Ibid, s 38(12).
[18] Ibid, s 86(1)(b).
The decision of the Council granting development authorisation was therefore an invalid decision.
A discretionary remedy
Having correctly held that the development concerned was a Category 3 development, the trial Judge then turned to consider whether, in the exercise of the Court’s discretion, an order quashing the decision should be made. He considered that, had an application for judicial review been made soon after the grant of development approval and before the building work commenced, an order would almost certainly have been made. I respectfully agree with that observation. What caused him to consider the exercise of the discretion to refuse relief was the state which the development had reached on 13 October 2006, being the day when Mr and Mrs Davies received the letter from the solicitors for Mrs Bade, and the subsequent completion of the dwelling.
The Judge considered, and I agree, that it was reasonable for Mr Davies to proceed to roof the dwelling after receiving notice of the proceedings in order to protect the building work then completed from the elements. However, he considered that it was not reasonable to proceed with the other work to complete the construction. The Judge found that Mr Davies deliberately decided to complete the construction notwithstanding the risk that the development approval might be set aside.
Evidence of the amount expended by Mr and Mrs Davies is somewhat uncertain. The trial Judge was not impressed with Mr Davies. He said:
On occasions his evidence was tailored to suit his wife’s case and obviously given in an attempt to advance their common interest. At times he became an advocate for their cause. Where his evidence conflicts with that of Mr Bade I prefer the evidence of Mr Bade. [19]
[19] Bade v Rural City of Murray Bridge & Anor [2008] SASC 9, [6].
In an affidavit he said that he had “a line of credit facility drawn down to fund the building project on lot 15 in an amount of approximately $175,000”. That was referred to by his counsel in examination in chief as the cost of the building project. The two are not necessarily the same. Mr Davies’ evidence was that “without crunching out the figures, the costs incurred after 13 October were maybe $20,000 to $30,000”. In his application for development approval Mr Davies stated the development cost, excluding fit-out costs, at a total of $80,000.
Although it was not referred to by the trial Judge, the prejudice to Mr and Mrs Davies would include the obvious prejudice of having the development authorisation set aside, having to make a further application for development approval, possible appeals to the Environment Resources and Development Court and even to this Court, holding costs pending a deferred sale, the possibility of the development not being authorised at all and of their having to remove it.

As against that obvious prejudice the Judge took into account the fact that Mrs Davies knew that the consequence of the proposed development would be to aggravate the encroachment; that Mr and Mrs Davies knew of the attitude of Mr and Mrs Bade to any development of lot 15 and the limits which they considered should be observed; that Mr Davies did not inform Mr and Mrs Bade of his application for development approval and did not disclose to Mr and Mrs Bade any of his plans; and that in his conversations with Mr Bade in December 2005 Mr Davies did not inform him of the development approval which had been obtained. In other words, the Judge took into account that the failure to commence proceedings before building work commenced was brought about, in part, by the failure of Mr and Mrs Davies to make frank disclosure to their neighbours, knowing that they would take a keen interest in any such development.
The trial Judge also noted that although Mr and Mrs Davies had been aware of the encroachment since at least April 2005, they had failed to disclose it on the application for development approval, and that had they done so, the Council might have been induced to give informal notice of the development application to Mrs Bade.
There was, of course, no legal obligation on Mr and Mrs Davies to keep their neighbours informed of their plans, of the application, or of the approval. However, the trial Judge considered, and I respectfully agree, that on this issue such conduct is relevant to the exercise of the Court’s discretion to grant the remedy. It smacks of deliberate concealment at a time when they knew of the intense interest of their neighbours in any possible development on lot 15.
As against those factors, however, the Judge considered that, besides writing to the Council, Mr and Mrs Bade adopted a “wait and see” approach, but that that was not an unreasonable view to adopt, especially as the Council was obliged to give them notice of any application for a Category 3 development. However, the trial Judge noted that Mr and Mrs Bade were, in effect, on notice that an application for development approval would in all probability be made. They did not ask Mr and Mrs Davies to notify them if and when an application was made. However, in the circumstances it is perhaps unlikely that Mr and Mrs Davies would have complied with any such request.
The Judge considered that the issue relating to whether the discretion should be exercised against the granting of the remedy was “difficult to determine”. However, he identified one key issue which he considered swung the balance in favour of Mr and Mrs Davies. He said:
The considerations which are more germane to the exercise of the discretion are those relating to the question whether, if the approval was set aside, the Davies would ultimately obtain another grant of development approval.[20]
[20] Ibid [62].
He recited the possible steps which would be necessary if the approval was set aside, including a likely appeal either by Mrs Bade or by Mrs Davies to the Environment Resources and Development Court over the outcome of any further development application. The Judge said:
It is not the task of this court to decide whether the Environment Court would uphold a decision of the Council granting development approval or whether it would reverse a decision of the Council refusing development approval. Instead, its task is to assess whether there is a reasonable prospect that the Environment Court would make a decision which had the consequence that there would be no grant of development approval with the consequence that the dwelling erected by the Davies would have to be demolished. I am not satisfied that there is a reasonable prospect of such a result. In reaching that view, I am especially influenced by the fact the Council’s Development Plan contains little, if anything, which speaks against the kind of development which the Davies have undertaken.[21]
[21] Ibid [63].
In making those observations I consider that the trial Judge erred in several respects. In the first place, this was not an appropriate case to anticipate what the decision of a planning authority or the Environment Resources and Development Court might be on planning grounds in respect of a further development application.
There are three reasons for that. First, the proposed development would require careful assessment against the provisions of the Development Plan. Secondly, it cannot be predicted what planning evidence would be led for or against the development. Thirdly, while some broad-brush issues may be clear, provisional Development Plan consent and any conditions to be imposed could turn on matters of detail.
In the context of appeals to this Court from decisions of the Environment Resources and Development Court, the Court has repeatedly said that it is only in exceptional cases that this Court will interfere with or pronounce upon the planning merits of a development, even where all the relevant planning evidence has been led and is before it.[22] Even more so is this the case on an application for judicial review where there is no relevant planning evidence before the Court.
[22] See, for example, Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467, 480 Wells J; Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161, 177 Jacobs J, 188 King CJ.
The Judge would only have been entitled to refuse relief on this ground if he could be reasonably satisfied that the Council would inevitably have to grant approval if a further application were made. That would be a very rare case. As has already been pointed out, in this case any further application would have to be an application for a different development from that the subject of the Council’s approval in this case, and would require very different considerations.
Secondly, it was incorrect to say that the Council’s Development Plan contained little, if anything, which speaks against the kind of development which the Davies had undertaken. The Judge had found that the allotment was within the Fringe Zone, and he seems to have confined his observations to the objectives and principles of development control set forth in the Development Plan in respect of that Zone. What he seems to have overlooked is that principle 1 of that Zone requires that residential development on existing allotments should be in accordance with the objectives and principles of development control expressed in the Residential Zone. That incorporates a wide range of issues which would have to be considered.
Thirdly, and perhaps most importantly, the Judge overlooked the distinct possibility that a portion of this development was within the Flood Zone. If so, it would also require the consent of the Development Assessment Commission before approval could be granted, and in general terms there can be no appeal against a refusal to grant consent in respect of such a development.[23] The objectives and principles of development control contained in the Flood Zone section of the Development Plan are much more restrictive in relation to developments of this type than are the objectives and principles of development control specified in respect of the Fringe Zone.
[23] Development Act 1993, s 35(4).
As I have said, in the circumstances it is not appropriate to anticipate the likely result of any further development application in respect of the dwelling on lot 15. However, the trial Judge’s conclusion that there is a real likelihood that an order setting aside the grant of development approval would be futile cannot be justified. That conclusion led the Judge into error in the exercise of his discretion to refuse relief to Mrs Bade.
For the reasons which have become apparent, I consider that there were serious flaws in the planning process which resulted in a miscarriage of that process. Some of those flaws were induced by the conduct of Mr and Mrs Davies in failing to ensure that the development of the boat shed was carried out in accordance with the authorised plans, in carrying out unauthorised development on lot 15 and in not disclosing same in the second application for development authorisation. However the fault was not entirely that of Mr and Mrs Davies. There were also obvious failures on the part of the Council in carrying out its role as a relevant authority. Subject only to the question of an extension of time within which Mrs Bade might bring her application, her application for judicial review should have been granted.
The extension of time
Both Rule 98.06 of the Supreme Court Rules 1987 and Rule 200(2) of the Supreme Court Civil Rules 2006 provide, in effect, that an application for judicial review must be commenced as soon as practicable and, in any event, within six months after the date when the grounds for the review arose. As I have already noted, the period of six months expired on 24 May 2006 and these proceedings were commenced on 13 October 2006. The delay is therefore significant. Rule 117 of the Supreme Court Civil Rules permits the Court to extend the time within which the proceedings may be commenced.
The trial Judge correctly observed that the four principal factors to be considered when deciding an application for an extension of time were the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent to the application.[24] In Hall & Ors v City of Burnside & Ors[25] the Full Court gave particular consideration to an extension of time for bringing judicial review proceedings. The Chief Justice, with whom Duggan J agreed, noted:
The six month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.[26]
[24] See Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; Jackamarra v Krakouer (1998) 195 CLR 516, 520-521 Brennan CJ and McHugh J, 542-543 Kirby J.
[25] (2006) 245 LSJS 440; [2006] SASC 283.
[26] Ibid [47].
The Chief Justice continued:
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.[27]
[27] Ibid [49].
The trial Judge noted that the delay was long, being some 11 months after the grant of the development authorisation. However, he considered that it was readily explained by the fact that Mrs Bade was unaware of the existence of the authorisation until shortly after construction on the site commenced. She then reacted with commendable expedition. The Judge noted that the real explanation for the delay lay in the fact that Mr and Mrs Davies did not commence building work until some nine months after the grant of the development authorisation, when it was apparent that their attempts to sell the lease with building approval were unsuccessful. The Judge inferred that had Mr and Mrs Davies commenced building work soon after the grant of the development authorisation, Mrs Bade would have instituted her proceedings at that time and would have done so promptly. That inference was clearly open on the facts before the Judge.
The Judge also inferred that, had notice of the development authorisation been given to Mrs Bade, she would have commenced the proceedings promptly after that. That was also an inference open to be drawn on the facts before the Judge. Although, at the end of the day, Mrs Bade did not succeed before the Judge, his Honour properly held that Mrs Bade had reasonable prospects of succeeding on the application. The Judge noted that there would be “obvious prejudice” to Mrs Davies, but did not elaborate on that prejudice, deferring consideration of the question until the exercise of the discretion to grant the remedy of declaration and judicial review.
In my opinion the Judge erred at that stage of his reasons in not giving adequate consideration to the question of prejudice to Mrs Davies when considering the extension of time. The Judge also erred in considering that the reasoning of the majority of the Full Court in Hall v City of Burnside gave “undue weight to the time limit prescribed by the Rule and over emphasises the public interest”.[28] With respect, it was not for the Judge to qualify or cast doubt on the reasons of the majority of the Full Court in deciding Hall v City of Burnside.
[28] [2008] SASC 9 at [43].
Nevertheless, I consider that the Judge was correct in granting the extension of time and that, to the extent that it is necessary for this Court to exercise the discretion afresh, it should grant an extension of time to the date when Mrs Bade commenced these proceedings.
The action is against the Council as the party whose administrative decision is under attack. However, r 38(4) of the Supreme Court Civil Rules 2006 requires that every person whose interests may be directly and adversely affected by the terms of a judgment, is to be made a defendant to the originating process. One of the reasons for the Court’s permission being required to proceed with an order for judicial review is not only to be satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review[29] but in order to ensure that all parties who may be adversely affected by the decision are joined as parties and are served with the summons. Mrs Davies is a defendant in that capacity.
[29] Supreme Court Civil Rules 2006, r 200(4).
The length of the delay is significant, given the six months limitation period prescribed by r 200(2) and the reasons for that relatively short period as explained by the Chief Justice in Hall v City of Burnside.[30]
[30] (2006) 245 LSJS 440; [2006] SASC 283.
Any prejudice to the Council is insignificant. Indeed, these proceedings expose a number of shortcomings in the Council’s handling of the application for development approval. It is desirable that it be alerted to those shortcomings in order to avoid similar problems in processing other applications of this nature.
The prejudice to Mrs Davies is significant. I have already described that in considering the exercise of the Court’s discretion to refuse the application. I will not repeat it.
Offsetting the length of the delay and the obvious prejudice to Mrs Davies is, first, the fact that Mrs Bade has obvious prospects of success. Indeed, but for the delay in instituting the proceedings, she must succeed. Second, is the reason for the delay, and third, are the actions of both defendants in contributing to the delay.
The reason for the delay is obvious. Mrs Bade was not aware of the decision to approve the development until her husband first observed construction work taking place on the site. When she became so aware, she proceeded with commendable diligence to instruct solicitors, to cause Mrs Davies to be warned of her intention and to institute the proceedings. It is difficult to know what other steps Mr and Mrs Bade could have taken to become aware of the grant of the development authorisation other than by way of periodic enquiries of the Council to ascertain whether an application for development approval had been lodged. However, they had never been told of the intention of Mr Davies to lodge the application. All they knew, on the findings of the trial Judge, was that Mrs Davies intended, at some stage, to build something on the boat shed and that they (Mr and Mrs Bade) had made known to Mr Davies their concerns about aggravating the encroachment and as to the desirable set-back of any construction. That did not require them to initiate from time to time their own enquiries of the Council in case an application had been lodged.
The trial Judge considered that the “real explanation” for the delay was Mr and Mrs Davies not commencing the building work within a reasonable time after receiving the development authorisation, a delay of some nine months, and that had they commenced work soon after receiving the authorisation, Mrs Bade would have instituted proceedings promptly. I have no doubt that Mrs Bade would have done so, but Mr and Mrs Davies cannot be blamed for a delay in commencing building work when they had been endeavouring unsuccessfully to sell the allotment. They were not under any legal obligation to commence building immediately, provided that they had carried out “substantial work”[31] on the site within 12 months.
[31] Development Regulations 1993, reg 48(1)(b).
As against the Council, the Council’s own action in wrongly treating the application as an application for Category 1 development resulted in Mrs Bade having no notice of the application or of the decision. If the Council had correctly treated the application as an application for a Category 3 development, notice would have been given. As against the Council, that is a highly material fact in deciding whether to extend the time for instituting the proceedings.
As against Mrs Davies, the amount of money expended before she received notice of Mrs Bade’s intention to commence the proceedings, is somewhat uncertain. However, Mrs Davies runs the substantial risk that the development authorisation will be set aside. She may well have difficulty in having the current structure approved. She may possibly have to remove it.
When prejudice of this nature is relied on, it requires some enquiry into the circumstances in which the expenditure of the money was incurred. At the time when the application for development approval was lodged, Mr Davies knew that the original development of the boat shed on which he relied was not in accordance with the development authorisation he had received. He was aware of the encroachment. As the original builder, even though he may have engaged contractors to do part of the work, he must have been aware of the position of the boat shed and its set-back from the riverbank. He did not disclose those irregularities to the Council. He knew that the original development, as authorised by the Council, had not been proceeded with. The decision notification form that Mr Davies received in August 1999 bore the following note:
b.This consent is valid for thirty six (36) months only. If development is not substantially commenced within twelve (12) months of the date of this consent, or substantially completed within thirty six (36) months of the date of this consent, a fresh consent must be obtained prior to commencing or continuing the use of the land.
Mr Davies must therefore have known that, after three years, what he had built was no longer an authorised development. He sought to rely on that unauthorised development. He did not point out to the Council that the development as previously authorised had not been carried out, although if the Council had consulted its own records, it would have been obvious from the plans that the previous proposed development had not been completed.

Mr and Mrs Davies were under no legal obligation to give notice to Mrs Bade of their application, but with knowledge of Mrs Bade’s probable desire to challenge what they were proposing, they did conceal the fact of the application from Mrs Bade. The necessary inference is that they did so in order to ensure that the building, the cost of which is part of the prejudice on which Mrs Davies now relies, could be put in place without opposition.
The fact that Mrs Bade received no notice from the Council of the development application related, in part, to the nature of the proposed development as described by Mr Davies in his application and his failure to disclose (which he well knew) that the earlier development on which this application relied was not an approved development. In those circumstances, Mr and Mrs Davies materially contributed to the reason why the Council did not give notice to Mrs Bade of the application, and hence to the delay of Mrs Bade in bringing these proceedings. Failure to notify one’s neighbour in the circumstance of these parties may well be bad manners and a breach of a desirable social obligation. However, it was not a breach of any legal obligation to Mr and Mrs Bade. I do not rely on that as being a relevant factor in the decision to extend time. What I do rely on, and what distinguishes this case from a case like Hall v City of Burnside, is the material failure to disclose the true facts to the Council in the application, compounded by the Council’s failure properly to assign the intended development to Category 3 for the purposes of s 38 of the Development Act.
Mr Henry relied, in opposition to the extension of time, on certain observations of members of the High Court in Brisbane South Regional Health Authority v Taylor.[32] That was a somewhat different case where the delay in question made the chances of a fair trial unlikely. The plaintiff was suing a hospital authority which was allegedly vicariously liable to her for the conduct of a doctor in failing to explain the choices available to her when she was faced with a decision whether to undergo a hysterectomy operation. The doctor could no longer be located. Without him the hospital could not have had a fair trial. In the course of his judgement, McHugh J said:
To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.[33]
[32] (1996) 186 CLR 541.
[33] Ibid, 555.
In my opinion Mrs Davies can gain no assistance from that case where her husband’s own material concealment of relevant facts contributed to the delay in Mrs Bade becoming aware of the fact that she had a cause of action.
In my opinion the Judge was correct in extending the time within which Mrs Bade could bring her action but not for all the reasons he gave. I would therefore dismiss the cross-appeal.
Conclusion
It follows that the appeal must be allowed and the cross-appeal must be dismissed.
The actual orders made by the trial Judge on 18 January 2008 were as follows:
THE COURT ORDERS that:
1Extend the time within which the plaintiff may make this application to 13 October 2006 (sic).
2The application of the plaintiff to quash the decision of the first defendant dated 24 November 2005 granting development approval No 415/599/05 be dismissed.
3That the encroachment by the second defendant on to the land occupied by the plaintiff, as shown within the plan in the reasons for judgment herein, and is (sic) hereby declared to be a trespass.
4That the second defendant have leave to make a counter-claim seeking the following orders:-
a.That the plaintiff execute in favour of the second defendant an underlease of the plaintiff’s interest in that portion allotment 16 upon which the second defendant’s building on allotment 15 encroaches.
b.That the second defendant pay to the plaintiff such compensation as this Honourable Court determines in account of the encroachment.
5Adjourn the hearing of the counter-claim for a directions hearing at 9.00am on Monday 11 February 2008.
6Leave to the first defendant to take no further part in these proceedings.
7Question of costs reserved.
8Liberty to apply.
Of those orders it will be necessary to set aside order number 2. Although their substance remains the same, orders numbered 1 and 3 should both be expressed in a more satisfactory form. I think it is inappropriate to grant leave to the Council to take no further part in the proceedings, at least until the question of costs has been resolved. It is therefore appropriate to set aside orders numbered 6 and 7. It would appear that orders numbered 4 and 5 relate to the encroachment and that these have been followed up by a further order made by the Judge on 11 March 2008. It was not argued before us and I make no comment on the efficacy of those orders or of any proceedings which may be dependent upon them. I would hear the parties as to the costs of this appeal and of the application before the trial Judge.
Accordingly, the orders I would propose are as follows:
1That the appeal be allowed;
2That the cross-appeal be dismissed;
3That orders numbered 1, 2, 3, 6 and 7 of the orders made by this Court on 18 January 2008 be set aside;
4That the following orders be substituted for those orders:
(1)    That the time within which the plaintiff may make this application be extended to 13 October 2006;
(2)    That the development authorisation issued by the defendant the Rural City of Murray Bridge on 24 November 2005 in development No. 415/599/05 be quashed;
(3)    That the Court declares that the encroachment of the building described in the affidavit of the plaintiff sworn on the 13^th day of October 2006 and referred to therein as “the Boat Shed” together with the second storey addition thereto constitute a trespass on the land known as Lot 16, Greenbanks, of which the plaintiff is the registered lessee;
5That the costs of the plaintiff’s application and of this appeal be reserved for argument at (time and date to be fixed).
ANDERSON J: I agree with the orders proposed by Bleby J and with his reasons.