Chyswick Pty Ltd v Kingston District Council & Mills Holdings Pty Ltd No. Scciv-02-676
[2003] SASC 164
•4 June 2003
CHYSWICK PTY LTD v KINGSTON DISTRICT COUNCIL &
MILLS HOLDINGS PTY LTD
[2003] SASC 164Land and Valuation Division
DEBELLE J This is an application for judicial review.
The plaintiff, Chyswick Pty Ltd (“Chyswick”), operates the Royal Coach Hotel at Kingston in the South-East of South Australia. It holds a hotel licence under the Liquor Licensing Act 1997 in respect of its premises.
The second defendant, Mills Holdings Pty Ltd (“Mills Holdings”), is the owner of land at Kingston on which is erected the Lacepede Bay Motel and Restaurant. For convenience, I will refer to these premises as “the motel”. The operator of the business of the motel is Tygem Pty Ltd, which holds a residential licence under the Liquor Licensing Act.
On 24 December 2001 Mills Holdings lodged an application for provisional development plan consent for a change of use from a motel to a hotel. The application was lodged with the Kingston District Council (“the Council”). On 20 March 2002 the Council granted provisional development plan consent to Mills Holdings to change the use of the motel to a hotel. The development consent was granted subject to eight conditions. For the purpose of this application, it is necessary to note only condition 3 which was in these terms:
“The maximum number of patrons in areas 1, 2 and 3 being the dining room, bar and function room shall be 200.”
On 17 May 2002 Chyswick issued this application for judicial review in which it seeks an order in the nature of certiorari quashing the grant of development consent or, alternatively, a declaration that the Council’s decision granting development consent is invalid. There are two main grounds on which Chyswick seeks these orders. The first is that Condition 3 limiting the number of patrons is invalid. The second concerns the fact that the Council did not hear Chyswick in opposition to the application by Mills Holdings.
In order to appreciate the issues in respect of each of these grounds, it is necessary to examine the events leading to the development application in December 2001.
History
On 7 December 2000 the Council granted Mills Holdings development approval for “motel extensions comprising an additional 10 rooms, conference facility, bar and associated parking and a swimming pool”. (The Council had on 27 September 2000 granted provisional development plan consent to that development.) The restaurant, bar and conference facility were respectively described by the Council as areas 1, 2 and 3. The following table lists those parts of the motel by reference to the area number and the capacity of each.
Area
Capacity
(persons)Restaurant 1 130 Bar 2 75 Conference facility 3 90 Total 295
There was provision for car parking for 38 cars.
On 27 June 2001 Tygem Pty Ltd lodged an application for a hotel licence for the premises. On 6 July 2001 Chyswick lodged an objection to that application. That application has been adjourned from time to time and has yet to be heard by the Licensing Court.
The First Development Application
The application for a hotel licence signalled an intended change of use of the premises from the use as a motel. A change of use of land constitutes a development: s 4 of the Development Act 1993. It was necessary, therefore, to obtain consent to the change of use. Thus, on 2 August 2001 Mills Holdings lodged an application for provisional development plan consent to change the use of the motel to a hotel/motel, restaurant and entertainment venue. The Council decided that the proposed development was a Category 2 development. By notice dated 7 August 2001, the Council gave notice of the application, among others, to Chyswick. At the foot of the notice the following words appear:
“Council has determined as a matter of policy not to hear in person representors making written submission, or parties on their behalf, on Category 2 Development applications.”
I will return to the significance of those words.
By letter dated 20 August 2001 from its solicitors Wallmans, Chyswick lodged a representation with the Council objecting to the proposed change of use. In its representation, Chyswick asserted that the application by Mills Holdings should be refused because of a number of factors including inadequate car parking. On 4 September 2001 the solicitors for Mills Holdings lodged a response to the representations made by Chyswick and other objectors.
By letter dated 12 September 2001, Wallmans, the solicitors for Chyswick, wrote to the Council enclosing a report from traffic engineers specifying the grounds on which the car parking was said to be inadequate.
The Council sought advice as to the merits of the application from Masterplan which carries on business as town and country planners. By letter dated 13 September, Mr Gladigau of Masterplan reported upon the proposal. He recommended the application be refused on the ground of a lack of adequate car parking. In its letter dated 12 September, Wallmans had asked the Council to provide copies of the agenda item concerning this application as well as all correspondence and reports relating to it. The Council provided a copy of the agenda item which included an extract from Mr Gladigau’s report.
On 21 September 2001 the Council met to consider the application. At that meeting it heard submissions from Mr Pratt, the manager of the plaintiff’s hotel, opposing the application and from Mr Mills, from Mills Holdings, supporting the application. The Council resolved to defer consideration of the application pending further enquiries as to car parking. The Council next considered the development application at its meeting on 19 October 2001. It then refused the application. The grounds for its refusal were that the proposed development was “seriously at variance with the development plan due to the lack of provision of car parking and the potential for creating an environment that is detrimental to the welfare of the community”.
On 5 November 2001 Mills Holdings appealed to the Environment Resources and Development Court against the decision of the Council. Chyswick applied to be joined as a party to the appeal and an order to that effect was made on 5 December 2001. Mills Holdings decided to withdraw its appeal and, by order dated 20 February 2002, the Environment Resources and Development Court granted Mills Holdings leave to withdraw the appeal.
The Second Development Application
In the meantime, on 24 December 2001, Mills Holdings, by its solicitors, lodged a second application with the Council seeking provisional development plan consent for a change of use from a motel to a hotel. I will refer to this application as “the second application”. The second application was no different from the first save for the fact that Mills Holdings proposed to limit the number of patrons at any one time to 200. It is apparent from a letter from the solicitors for Mills Holdings which accompanied the application that Mills Holdings had proposed the limit on the number of its patrons in order to deal with the Council’s decision that car parking was inadequate.
By notice dated 7 January 2002, the Council gave notice of the second application to Chyswick, among others. The notice described the development as a Category 2 development. There is no issue as to what is the proper category of development. The notice bore the same endorsement as the notice of the first application, namely,
“Council has determined as a matter of policy not to hear in person representors making written submission, or parties on their behalf, on Category 2 Development applications.”
By letter dated 21 January 2002, Chyswick, by its solicitors Wallmans, lodged a written representation objecting to the second application. It is unnecessary to recite all of the grounds of the objection. It is sufficient to note that Chyswick again asserted that car parking was inadequate and that Chyswick asked to be heard in support of its representation. Its representation was accompanied by a report from a traffic engineer. Mills Holdings and its solicitors both wrote to the Council in early February 2002 responding to Chyswick’s assertions.
At its meeting on 15 February 2002, the Council considered a report from its planning officer. That report identified two main issues concerning the applications. They were noise and car parking. The Council deferred consideration of the second application pending the receipt of further reports from Mills Holdings. The resolution was in these terms:
“The Council requests the applicant to provide a car parking consultant report, noise consultant report and a planning report in support of the application so that it can effectively be assessed. If this information is not received within three months from the request (as required by the Development Act) the application is to be refused due to lack of information.”
Mr Pratt was present at this meeting but did not speak. The Council again considered the second application at a meeting on 20 March 2002. By then it had received three reports. They were a report dated 15 March from Nolan Rumsby, town planners, and a report dated 14 March from Tonkin Engineering Services dealing with traffic engineering. Both reports had been referred to Masterplan which in turn reported to the Council on 19 March. At its meeting on 20 March the Council granted development consent.
The Council had not given notice of the meeting to Chyswick, nor had it supplied Chyswick with copies of the reports from Nolan Rumsby, Tonkin Engineering Services or Masterplan. The Council had given notice of the meeting in the local newspaper. The agenda of the meeting of the Council was on public display at the Council offices from 15 March 2002.
The Car Parking Issue
Chyswick contends that, in purporting to grant approval to the application by imposing Condition 3 limiting the capacity of the hotel to 200 patrons, the Council
(1) misdirected itself in law;
(2) acted beyond its powers in imposing an invalid condition in that
(a)the condition was imposed for the improper purpose of artificially restricting the capacity of the premises to accord with the availability of car parking on site; and
(b)it was imposed for a purpose which goes beyond the proper scope of conditions under s 42 of the Development Act to regulate incidental aspects of approved development;
(3)failed to take into account a relevant consideration, namely, the requirements of Table King/4 of the Council’s Development Plan; and
(4)took into account an irrelevant consideration, namely, the arbitrary limit on numbers of patrons proposed by the applicant.
The plaintiff relied on the decision of this Court in Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at 420 – 425 which was upheld on appeal in McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539 at 546 – 551. In that case, an application had been made for development consent to erect an entertainment and hospitality complex to be used as a hotel. An application had also been made to the Licensing Court for a hotel licence. An important, if not the most important, planning issue in that development concerned the adequacy of the car parking. The proposal made provision for 290 car parking spaces. Estimates as to the capacity of the premises varied. The Liquor Licensing Commission estimated it to be 1548 persons. An expert retained by the Development Assessment Commission estimated the capacity to be 810 persons requiring 324 car parking spaces. Other estimates ranged between 820 and 870 persons. There was a substantial body of opinion that the car parking was inadequate. The Commission granted development consent but subject to a condition limiting the number of patrons to 380 persons up to 6.00pm and to 740 persons from 6.00pm to 4.00am. The notice of development consent stated that the purpose of the condition was to regulate the amount of car parking generated by the development and to prevent overflow car parking in adjoining areas. It was held at first instance and approved on appeal that the development consent should be set aside. In the Full Court it was held that, when granting approval, the Commission had failed to take into account a relevant factor, namely, that the proposal was so defective that it should not be approved. At first instance, it was held that the Commission had misdirected itself and, in consequence, had had regard to an irrelevant factor.
The Full Court noted (at 546) that, although the power to impose conditions on the grant of development consent in s 42 of the Development Act is a wide power, there are constraints on its use. It cannot be used to obscure the primary question which the planning authority must ask itself, namely, having regard to the objectives and principles of the relevant development plan, is the proposal a suitable and appropriate use of the land. Having identified the authorities where that principle had been spelled out on more than one occasion by this Court, the Full Court then adopted the reasoning of the judge at first instance (at 547) to the following effect:
“The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development or the land to be used in a way significantly different from the use or uses intended. The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development in a kind of strait jacket which will constrain the development from being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgment that the proposed development is inappropriate for the subject land.”
Thus, what caused the development consent in that case to be invalidated was the use of conditions to constrain the development from being used in the way intended.
I was the judge at first instance. I held that the Commission had misdirected itself as to the proper question to examine. I held that, instead of determining the numbers likely to attend the hotel complex, the amount of car parking required and then determining whether there was sufficient car parking and whether development consent should be granted, the Commission had decided that 290 spaces were available and had limited the numbers who might attend the hotel. I held that in this way the Commission had misdirected itself and had had regard to an irrelevant factor. The Full Court agreed with the conclusion but characterised the Commission’s conduct as a failure to take into account a relevant factor, namely, that the proposal was so defective that it should not have been approved. The Full Court did not state that I had erred in holding that the Commission had misdirected itself as to the proper issue by taking an irrelevant factor into account. With respect, I prefer to adhere to the view that the Development Assessment Commission had had regard to an irrelevant factor when determining to grant development consent. I do so because the approach of the Full Court borders on an exercise of the discretion vested in the Commission. The Court can do no more than set limits on the exercise of an administrative discretion and a decision made within those bounds cannot be impugned: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 – 41.
When determining whether to grant development consent, the relevant planning authority will generally have to consider whether the proposed development has adequate car parking having regard to the use which will be made of the premises, the subject of the development application. At that stage, the relevant questions include:
• What is the nature of the proposed development?
• What is the manner in which any building might be used?
• What demand will the use create for car parking?
• Does the proposed development provide adequate car parking?
There are, of course, standards to assist in determining the required amount of car parking spaces. An example is Table King/4 in the Council’s Development Plan.
When determining whether the proposal makes sufficient provision for car parking, it is, generally speaking, irrelevant to have regard to limitations on numbers – be those limits imposed by the planning authority or be proffered by the applicant as parts of its development application. I say “generally speaking” because each application will have to be considered on its merits. There may be instances where a self-imposed limit as to numbers is realistic and practicable. A limit might perhaps be appropriate to prevent an intensification of an approved use. But it is not the case with this hotel.
The amount of car parking at present provided may be sufficient for this motel with its residential licence. However, a hotel licence permits a different pattern of trade and so creates a different kind of demand for car parking. For present purposes, one relevant difference is that the residential licence held by Tygem authorises it to sell liquor to those who are residing as guests in the motel as well as to those who are taking a meal in the motel. It also permits the sale of liquor to those who are seated at a table and to those attending a function at which food is being provided. By contrast, a hotel licence permits the sale of liquor for consumption on the premises by any member of the public with or without meals and whether or not that person is residing in the premises. It is unnecessary to refer to the fact that a hotel licence also authorises the sale of liquor for consumption off the premises. In short, the terms of a hotel licence are more liberal than those of a motel licence in that they permit the sale and consumption of liquor on the premises without any requirement that the liquor will be served with a meal or to a lodger or to a person seated at a table.
The different purposes of those who patronise a hotel create different demands for car parking. This is reflected in Table King/4. It shows that bar areas generate a higher demand for car parking than dining areas. A limit as to numbers does not limit any particular kind of patronage. Thus, there is nothing to prevent the greater number of patrons being those who come to the proposed hotel for the purpose of drinking at the bar. Thus, a limitation on numbers who may use the hotel is unlikely to result in a limitation upon the demand for car parking. That is clearly illustrated by application of the standard for car parking in Table King/4.
Facility
Area (sq m)
Standard in Table King/4
Car Parking Required
Dining Room
190
1 car park for each 6 square metres
31
Bar
66
1 car park for each 2 square metres
33
Conference Room (Lounge)
80
1 car park for each 6 square metres
13
Beer Garden
200
1 car park for each 6 square metres
33
1 Guest room (total 31)
1 car park for every three guest rooms
10
120
Even if the beer garden is deleted, the standard requires 90 car parking spaces. Of particular note is the fact that the standard for the bar area is 33 car parking spaces. The demand for car parking is underscored even more heavily if regard is had to the capacity of the three areas of the existing motel, namely,
Dining area
130 persons
Bar area
75 persons
Conference room
90 persons
Total
295 persons
If the bar area is used to capacity, the demand for car parking may well exceed 33 spaces. These observations are not made for the purpose of determining what is the required amount of car parking. Plainly, I lack the required expertise. Instead, my purpose is to demonstrate the lack of any relationship between a limit on numbers in an hotel and the demand for car parking.
A limit on numbers to a maximum of 200 persons says nothing about the extent of the patronage of the bar. It is quite apparent from the development application that Mills Holdings seeks to attract local custom as well as custom from those who will stay in units at the motel. Patronage of the bar from those who live in or near Kingston will plainly increase the demand for parking above the existing demand. There is no causal relationship between the limit on the numbers of patrons and the demands for car parking. What dictates the demand is the level of patronage created by each aspect of the hotel’s operations. In other words, when one is considering the demand for car parking created by a proposed hotel, a limitation on the number of patrons of the hotel is unlikely to be reflected in a limit on the demand for car parking. In other words, it is not possible to limit the demand for car parking by limiting the number of patrons.
The above reasoning applies with equal force, whether the limitation on numbers is imposed by the planning authority or is proffered by the proponent of the intended development. The fact that Mills Holdings proffered the limit on numbers does not, therefore, require a different conclusion.
In the documents supporting the application, Mills Holdings repeatedly state that they do not intend to alter the manner in which they at present manage the premises so that there is not likely to be any increase in the demand for car parking. That too does not affect the above reasoning. Intentions may and, in all likelihood, will change. There might be a change of ownership. The grant of development consent has a degree of permanency. It applies indefinitely into the future. The relevant factor is not what the developer intends but how the development proposed might be used. If these premises should become an hotel, they have the capacity to create the demand for car parking which has already been identified. The reasoning in McKenzie Constructions Pty Ltd v Development Assessment Commission at 547 which has already been quoted distinguishes between conditions dealing with incidental aspects of the proposed development and those which strike at the intended use of the land. The reasons I have just expressed are not inconsistent with my reasons in McKenzie Constructions which the Full Court quoted with approval. On reflection, I ought not to have employed the expression “the use or uses intended”. It is misleading. The reference to “the use or uses intended” was a reference to the proposed form of development and the manner in which it would ordinarily be used, not to the particular manner in which the developer might say the land or building will be used. The intention was to distinguish between conditions impairing the nature and essence of the use of the land, the subject of the proposed development, and conditions which are incidental to that use.
The evidence, in particular the letter dated 24 December 2001 from the solicitors for Mills Holdings to the Council, clearly shows that the limit of 200 persons was proposed as a means of seeking to persuade the Council that, notwithstanding the change in use, the existing car parking was adequate. The Council has clearly relied on it for that purpose. Although the Council had reports from town planners and traffic engineers which purported to justify the car parking arrangements, there is no reason for the condition except to seek to limit numbers and thereby limit the demand for car parking.
The condition was not imposed to limit any intensification of the use of the premises as a hotel. All of the events leading to the Council’s decision and, in particular, its first decision refusing development consent and its concern throughout with car parking not only belies that conclusion but also demonstrates that the condition was imposed only in an attempt to limit the demand for car parking.
For these reasons, the Council has had regard to an irrelevant factor when making its decision. The grant of provisional development plan consent must therefore be set aside.
Was Chyswick denied a hearing?
Chyswick contends that the Council acted beyond its powers under the Development Act by granting development consent without first considering whether it should hear Chyswick pursuant to s 38(10)(a) of the Development Act 1993 (“the Act”). It is apparent from the recital of facts in relation to the second application that the Council did not hear Chyswick or its representative in relation to the second application. The first matter to examine is what duty or duties were imposed on the Council in relation to hearing persons in support of written representations. That requires an examination of s 38 of the Act and, in the particular circumstances of this case, a resolution of the Council made in 1994.
The classification of kinds of development and the right to make representations to a planning authority in respect of a development application, the right to be heard in support of a representation, and rights of appeal are matters which are all regulated by s 38 of the Act and by the Development Regulations 1993 made under the Act. The legislative scheme provides for three categories of development designated Categories 1, 2 and 3: see s 38(1) of the Act. The question whether a person is entitled to a notice of development application and to make representations to the relevant planning authority turns on the category into which the intended development falls.
The legislative scheme is explained in detail in Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 478 – 479. For present purposes it is sufficient to note that there is no right to receive notice of a development application, to make a representation or to be heard in respect of Category 1 developments. In the case of Category 2 developments, the relevant planning authority (in this case the Council) must give notice of the development application to adjoining owners and occupiers and those who receive notice are entitled to lodge a representation. In the case of Category 3 developments, notice must be given to the public and to adjoining owners and occupiers and there are rights to lodge a representation, to be heard and to appeal from the planning authority’s decision. This development was assigned Category 2. There is no challenge to that classification.
Section 38(10) of the Act provides for rights of hearing by those who make representations in respect of Category 2 or Category 3 developments. Section 38(10) provides:
“In addition to the requirements of subsections (7), (8) and (9)–
(a)in the case of a Category 2 development–the relevant authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation; and
(b)in the case of a Category 3 development–the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation.”
It is unnecessary to note sub-sections (7), (8) and (9) which provide for lodging representations and responses thereto. Thus, the Council has a discretion whether to hear oral submissions in support of a written representation. The Council did not consider whether it should hear Chyswick or its representative notwithstanding that in its written representation dated 21 January 2002 Chyswick had asked to be heard. In my view, given that Chyswick had asked to be heard, s 38(10)(a) imposed a duty on the Council to consider whether it should hear Chyswick. If the person lodging the representation does not apply to be heard, that duty may not exist but it is unnecessary to consider that question.
I do not think that duty to consider whether to hear Chyswick was in any way modified by the form of the Council’s notice of the planning application. Mr Rufus is the Chief Executive Officer of the Council. He joined the Council in April 1998 as its Deputy Chief Executive Officer. He knows that at least since April 1998 the Council has sent notices in respect of Category 2 applications which bear the endorsement:
“Council is determined as a matter of policy not to hear in person representors making written submission, or parties on their behalf, on Category 2 development applications.”
He says that notices in that form were sent before he joined the Council. He believes that the endorsement accords with the Council’s general policy.
The only document which Mr Rufus has found which deals with the Council’s policy as to hearing persons in support of written representations is expressed in a resolution of the Council made on 21 January 1994. It deals with, among other things, the circumstances in which notice will be given of a development application and with hearing persons making oral submissions in support of written representations. The relevant part of the resolution is in these terms:
“Notification of Development Applications
General public notice of all applications for development assigned as Category 3 development pursuant to the Development Act 1993 shall be published in the Kingston Leader.
Where a development application is made for development which does not require public notice pursuant to the Development Act 1993, the owners and occupiers of adjacent land likely to be affected by the proposed development shall be notified of such development as follows:-
1.advising the nature of the proposed development and that plans are available for viewing;
2.that any comments may be lodged with the Chief Executive Officer within seven days of the date of the notice;
3.that no legal right of representation and no legal right of appeal against a Council decision exists with regard to such development;
4.that all written comments received by the relevant date will be considered by the Planning Development Committee at the same time as the proposed development is considered.”
After dealing with other issues, the resolution then deals with submissions in support of written representations in these terms:
“Verbal Representation
All persons and groups who make written representation to Council with respect to development applications of which they have been notified shall, upon written request be given the opportunity to make verbal representation to Council or one of its delegate bodies, whether or not they have a legal right to make such verbal representation.
Verbal representations shall be heard by Council and its delegate bodies in accordance with the following:-
- all representors should observe a 10 minute time limit; and
- questions from Council Members to representors and/or applicants are to be strictly overseen by the Chairperson to be to the point and clear.
In any matter in which verbal representations are heard, the applicant shall be afforded the opportunity to verbally respond to the representations, subject to the same restrictions as representors.”
It is apparent that there is an inconsistency between that part of the resolution which deals with the form of notice and the later part dealing with the entitlement to make oral representations. Before dealing with that inconsistency, I refer again to the evidence of Mr Rufus.
Mr Rufus said that the statement in the notice accorded with the Council’s general policy but the Council did consider applications to receive oral representations. There was no challenge to that evidence. The evidence seems to reflect in part the inconsistency between the two parts of the 1994 resolution. Mr Rufus adds that requests by an objector to be heard in support of a written representation are considered by the Chairman of the Council and in many cases granted.
The inconsistency between the two parts of the resolution is compounded by the fact that there is no requirement in s 38 of the Development Act to give notice of Category 1 developments. I put that difficulty to one side and consider the resolution on the footing that it relates only to developments which are classified as Category 2 and 3. In my view, it is necessary to give effect to the later part of the resolution headed “Verbal Representation”. It is expressed in terms which are quite unequivocal. The resolution clearly states that all who make written representations in respect of a development application of which they have been notified and who ask to be heard in support of the representation shall be heard “whether or not they have a legal right to make such verbal representation”. The prerequisites for being heard were
• notice of the proposed development,
• a written representation, and
• a request to be heard.
The concluding words of this part of the resolution emphasise the entitlement to be heard notwithstanding the absence of a legal entitlement. In my view, the terms of that part of the resolution which deal with verbal representations override the former. The statement that the entitlement exists whether or not there is a legal right to make verbal representations is intended to provide the right to be heard notwithstanding that subsection (10)(a) of s 38 of the Act permits a planning authority to hear a person in its discretion. The same issue might be considered another way. Had the underlined words not been included in the resolution, it might be possible to conclude that the resolution intended to confer a right to be heard only in respect of representations concerning Category 3 developments. The inclusion of the underlined words prevents that conclusion. The underlined words might also have been intended to deal with cases where notice of Category 1 developments are given, but it is not necessary to deal with that issue now. I conclude, therefore, that the Council’s policy in relation to Category 2 developments was to hear any person to whom notice of the development had been given, who had lodged a written representation and who had requested a hearing.
If that conclusion is incorrect and the notice given by the Council correctly stated the Council’s position, the Council has unlawfully fettered the exercise of the discretion it has to exercise under s 38(10)(a) if a representor asks to be heard. It is an attempt to shut the door indiscriminately on all applications to be heard regardless of merit. To use the words of Bankes LJ in R v Port of London Authority; ex parte Kynoch Ltd [1919] 1 KB 176 at 184, it is not the adoption of a policy in the exercise of discretion but rather a refusal to exercise any discretion.
The Council is, therefore, on the horns of a dilemma. Either it has a policy of hearing those who lodge representations and ask to be heard or it has unlawfully fettered the exercise of its discretion. In other words, the 1994 resolution either represents a policy of the Council to hear those who lodge representations and ask to be heard or it does not affect the obligation under s 38(10)(a) to consider a request by a person who has lodged a representation and who seeks to be heard.
In the result, given that Chyswick had lodged a written representation and had asked to be heard, the Council had a duty to consider that request. It failed to do so and so failed to comply with an obligation imposed on it under s 38(10) of the Act. Its decision must therefore be set aside on that ground also.
It was contended on behalf of the Council that it had, in effect, heard all that Chyswick would have wished to say when it dealt with the first application. The Council relied on the fact that there is no evidence that Chyswick had anything new or of substance to put before the Council. That submission fails to have sufficient regard to the fact that the second application was an entirely fresh application so that the Council was obliged to comply with each of the procedural steps required by s 38. The contention must, therefore, be rejected.
Both defendants place some emphasis on the fact that Mr Hoban, the solicitor at Wallmans acting for Chyswick, had received informal notice of the meeting. I set out the facts on which this contention is based. They are quite extensive.
It will be recalled that Mr Hoban lodged with the Council a representation dated 21 January 2002 on behalf of Chyswick objecting to the second application. It concluded with a request to be heard and to be supplied with reports concerning the application. The request was in these terms:
“Would you be kind enough to provide us with a copy of your report in due course and advise of the time, date and place of any meeting of Council or its committees so that we or our client may be in attendance in order to address Council and answer any questions.”
On 11 February Mr Hoban repeated the request for documents in a facsimile message to Mr Alexander. Mr Alexander provided that information the same day. Mr Pratt attended the Council meeting on 15 February but, it appears, he was not heard. The minutes suggest that no-one was heard on the application. Mr Hoban was informed of the resolution of the Council deferring consideration of the application pending receipt of further reports either by an employee of Chyswick or by an officer of the Council.
On 7 March an application by Chyswick had been listed for hearing in the Licensing Court. Tygem Pty Ltd had lodged an application for a hotel licence for the proposed hotel. Chyswick had lodged an objection to that application. Mr Hoban was acting for Chyswick. Chyswick had applied to strike out Tygem’s application for a hotel licence on the ground that there had been undue delay in obtaining a grant of planning approval. It seems that the application for a hotel licence had been adjourned on at least five occasions in order to obtain planning approval. The application was listed for hearing by a Liquor Commissioner on 7 March. At the hearing of the application, Mr Hoban appeared for Chyswick and Mr John Firth of counsel appeared for Tygem. Mr Sheridan, a solicitor in the firm of Piper Alderman, who was acting for Tygem Pty Ltd in relation to both the application to the Council for development consent and the application to the Licensing Court for a hotel licence, was also present on behalf of Tygem. At the hearing, Mr Firth informed the Liquor Commissioner that Mills Holdings was doing all it could to enable the Council to grant development consent and that the next meeting of the Council was to be on 20 March. Mr Hoban informed the Commissioner that Chyswick had not been notified of the meeting by the Council and had not received copies of reports it intended to put before the meeting of the Council. The Licensing Commissioner refused the application and adjourned Tygem’s applications for a hotel licence to 5 April. He also directed that, by 27 March, Tygem provide both the Licensing Court and Mr Hoban with details of the status of the application for development consent. On 26 March Mr Sheridan sent a copy of an extract from the minutes of the Council meeting on 20 March to both the Licensing Commissioner and Mr Hoban.
In his affidavit, Mr Hoban recalls the Liquor Commissioner being informed that there was to be a meeting of the Council towards the end of March. He says that he does not recall the date of 20 March being mentioned. There is no transcript of the proceedings in the Licensing Court. I find that 20 March was mentioned as the date when the Council next met. There are two reasons for that conclusion. First, on the application to strike out the application for a hotel licence, close attention would have been given to the dates by which Council would decide the planning application. I therefore find that Mr Firth informed the Liquor Commissioner that the next meeting of the Council was 20 March and that Tygem expected the application would then be determined. Secondly, that conclusion is confirmed by the written reasons of the Liquor Commissioner for dismissing the strike out application. In those reasons, the Commissioner said that he had been informed by Mr Firth that “a Council decision is expected on 20 March 2002”. That is plainly a reference to the date of the Council meeting.
However, while Mills Holdings might have hoped that the Council would have determined the matter at the next meeting, there could be no certainty that it would. The terms of the Council’s resolution of 15 February make it plain that the next consideration of the planning application depended on the receipt of further reports and allowed three months in which they might be provided. As at 7 March no reports had been provided to the Council. The first report was not received till 14 March. There is no evidence that the Licensing Court was told that reports were expected soon. Mr Hoban could not know when those reports would be received and could not, therefore, know when the Council would next be considering the planning application.
Mr Hoban said that he did not act on Mr Firth’s statement that the Council intended to consider the matter at its next meeting because, in the light of his involvement in the prior application, he was expecting that
(1)he would be provided with copies of the reports requested by the Council at its meeting on 15 February;
(2)he would be formally notified of the date of the next meeting;
(3)he would have an opportunity to seek independent advice and make further representations to the Council.
He said that, as the month of March went by, he believed that the lack of formal notice from the Council indicated that the Council would next deal with the matter at meetings in April or May. Mr Hoban was not entitled to expect to be provided with the additional reports: Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at 573. He had no entitlement to inspect them.
The effect of the contention of both defendants is that Chyswick’s failure to attend a meeting relieved the Council of its failure to consider whether to hear Chyswick. I do not think it does. The Council had to decide whether to hear Chyswick and give it notice of the meeting. The obligation to give notice was the greater since the terms of the Council’s resolution of 15 February had adjourned consideration of the development application pending the receipt of further reports. Neither Chyswick nor Mr Hoban knew that the reports had been received so the Council would be in a position to consider the development application at its meeting on 20 March.
Conclusion
For these reasons, the Council had regard to an irrelevant factor when deciding to grant development consent. It also failed to comply with procedures prescribed by s 38(10)(a) of the Act. Its decision on 20 March granting Mills Holdings provisional development plan consent must therefore be set aside.