Bediavas v Development Assessment Commission (No 2)

[2017] SASCFC 142

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

BEDIAVAS v DEVELOPMENT ASSESSMENT COMMISSION (No 2)

[2017] SASCFC 142

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

26 October 2017

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

Judgment in this matter was delivered on 22 September 2017 in favour of the respondent. The appellant applies for a partial reduction of the respondent’s costs on the basis that it was partially successful.

Held per Curiam (Kourakis CJ, Peek and Nicholson JJ), dismissing the application:

1. This is not an appropriate case to reduce the respondent’s costs by reason of the appellant’s success on one issue which in isolation could not have determined the appeal.

2. The appellant is to pay the respondent’s costs of the appeal on a party/party basis to be agreed or taxed.

BEDIAVAS v DEVELOPMENT ASSESSMENT COMMISSION (No 2)
[2017] SASCFC 142

Full Court: Kourakis CJ, Peek and Nicholson JJ

1. THE COURT:  The appellant, Theodoros Bediavas, appealed against a judgment of the Environment Resources and Development Court (the ERD Court) which categorised the appellant’s proposed development as non‑complying with the Development Act 1993 (SA).

2. The appellant’s proposed development was for ‘workers accommodation and associated facilities’ which were described in the application as ‘a camping ground, caravan parking area and accommodation facilities for tourists’. The Development Plan for the relevant area prescribed camping grounds, caravan parks and tourist accommodation as non-complying. Despite prescribing these specific categories, the Development Plan also had a policy of general application which encouraged short term worker’s accommodation

3. The Judge found that the proposed development was for a caravan park and camping ground which were non-complying uses and that those uses were also types of tourist accommodation.

4. On 22 September 2017 this Court delivered judgment in Bediavas v Development Assessment Commission.[1] The appellant was unsuccessful. At judgment delivery the appellant was given seven days to make submissions as to costs otherwise the ordinary order as to costs would be made.[2]

   [1] [2017] SASCFC 124.

   [2]    Supreme Court (Civil) Rules 2006 (SA), r 263(1).

5. The appellant submits that it was partially successful on the appeal because this Court recognised that development in the nature of short term worker’s accommodation need not necessarily be tourist accommodation.  That submission was rejected in the ERD Court.  The respondent submits both that it was successful in its principal argument that the development was non‑complying because it involved a camping ground and caravan site and also that that issue was determinative of the appeal.

6. This is not an appropriate case in which to reduce the respondent’s costs by reason of the appellant’s success on one issue, which in isolation could not have determined the appeal.

   Conclusion

7. We make the following order:

   ·The appellant is to pay the respondent’s costs of the appeal on a party/party basis to be agreed or taxed.