City of Burnside v Build-Tec Services
[2005] SASC 50
•10 February 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CITY OF BURNSIDE v BUILD-TEC SERVICES
Reasons for Ruling of The Honourable Justice Besanko
10 February 2005
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
Application for extension of time to institute appeal from Environment, Resources and Development Court - where applicant filed notice of appeal six days late - where applicant gave a reasonable explanation for the delay - where appeal is arguable - where applicant will suffer detriment if time is not extended - where respondent will suffer some financial detriment if time is extended but that detriment will be offset by applicant's undertaking not to seek costs if successful on the appeal - application granted.
Development Act 1993; Environment, Resources and Development Court Act 1993 s 30, referred to.
CITY OF BURNSIDE v BUILD-TEC SERVICES
[2005] SASC 50Application for Extension of Time
BESANKO J: This is an application pursuant to r 3.04(d) of the Supreme Court Rules 1987 for an extension of time within which to institute an appeal.
On 8th February 2004, Build-Tec Services made an application to the City of Burnside (“the council”) for provisional development plan consent under the provisions of the Development Act 1993. The application related to land at 470 The Parade, Rosslyn Park in the State of South Australia (“the subject land”). The existing use of the subject land was as a motor repair station, a workshop and a storage area for vehicle bodies. The application sought approval for development involving the demolition of the existing buildings on the subject land and the erection of three, part two-storey detached dwellings together with integrated garaging, landscaping and fencing. On 22nd June 2004, the council refused to grant provisional development plan consent. Build-Tec Services appealed against the council’s decision to the Environment, Resources and Development Court (“ERD Court”) established under the Environment, Resources and Development Court Act 1993 (“the ERD Court Act)”. The appeal was heard by a Commissioner of that Court. On 10th September 2004, the Commissioner issued a memorandum indicating that he would uphold the appeal. On 30th September 2004, the Commissioner delivered reasons and made orders upholding the appeal and granting provisional development plan consent to an amended proposal subject to seven conditions.
An appeal against a decision of a Commissioner of the ERD Court lies to a single judge of this Court pursuant to s 30(1) of the ERD Court Act. The appeal is as of right on a question of law, and by leave on a question of fact. An appeal or an application for leave to appeal is to be heard by a Judge of the Land and Valuation Division of this Court (Practice Direction 38). Appeals from the ERD Court are governed by r 96AA of the Supreme Court Rules 1987 (“the Rules”). By reason of r 96AA.03 an appeal under s 30 of the ERD Court Act is instituted by filing a notice of appeal within fourteen days of the order appealed against being made where the appeal is as of right, and of the necessary leave to appeal being granted where the appeal is by leave. Insofar as its appeal was an appeal as of right, the council had until 14th October 2004 to file a notice of appeal. By reason of r 96AA.04 where the appeal under s 30 of the ERD Court Act lies to a single Judge, it is to be governed by the provisions of r 97. There is power to extend the time for instituting an appeal in r 3.04(d) of the Rules.
The council did not file a notice of appeal on or before 14th October 2004. It filed a notice of appeal on 21st October 2004. The notice of appeal contains six grounds of appeal, and in each ground it is asserted that the relevant error made by the Commissioner is an error of law.
The council asks this Court to extend the time for instituting the appeal. Build-Tec Services is the respondent and it opposes such an order. It is well established that the relevant matters on such an application are the length of the delay, the reasons for the delay, whether the appeal is arguable and the existence and extent of any prejudice to the appellant and the respondent if the time is or is not extended.
The respondent puts its submissions on the basis that the council had until 15th October 2004 to institute the appeal, but on my calculations the council had until 14th October 2004 to institute the appeal. I do not think this particular point matters a great deal because the prejudice which the respondent says that it will suffer if an extension of time is granted occurred between 18th October and 21st October 2004. It is common ground between the parties that the council’s notice of appeal was filed and served on 21st October 2004.
I turn now to examine the relevant considerations.
The length of the delay was a period of six days. The delay arose in the following circumstances. The council’s solicitors sent to Mr Martin Debb, the manager of development assessment at the council, a copy of the judgment and order of the ERD Court by facsimile transmission on 1st October 2004. Mr Debb dealt with the judgment in accordance with the general practice of the council at that time. The general practice was that a copy of the judgment and order was distributed to elected members of the council. If Mr Debb believed that an opinion should be obtained on the likely success of an appeal to the Supreme Court, then he sought such an opinion. If one or more of the elected members believed that there may be grounds for an appeal to the Supreme Court, then those members advised Mr Debb, and he would generally seek an opinion. If Mr Debb received an opinion which indicated that an appeal to the Supreme Court may succeed, then the matter was presented to the Development Assessment Panel for direction. In this particular case, one of the councillors was away on leave and did not read the decision within the period of fourteen days following the delivery of the judgment. Mr Debb was contacted by that councillor on 19th October 2004 and told that he had been away on leave and that he believed that there may be grounds to appeal. He asked Mr Debb to obtain an opinion on the merits of an appeal to the Supreme Court. On the same day, Mr Debb contacted the council’s solicitors asking for an opinion regarding the likely success of an appeal against the decision. On 21st October 2004, the council’s solicitors advised that counsel had advised that there was a proper basis for appealing the decision. Shortly thereafter, Mr Debb contacted the council’s solicitors and instructed them to institute an appeal against the decision of the ERD Court.
There was no challenge to that explanation for the delay and I accept it. The period of delay is short and the explanation for it is understandable, although it must be said that a council cannot expect an extension of time as a matter of course in circumstances where the delay is due to one of its members being on leave. I must also take into account the fact that the delay occurred in circumstances in which the Commissioner had indicated on 10th September 2004 that he would uphold the appeal.
I heard brief submissions on whether the council’s appeal is arguable. The principal attack on the Commissioner’s reasons relates to his construction of objective 1 of the Residential Policy Area 8 – Rosslyn Park, and in particular, that section of it which refers to acknowledged, significant variations from the desired character, or the prevailing character or environmental conditions. In my opinion, it is arguable that the Commissioner erred in his construction of the objective and that that was a significant consideration in terms of his conclusion that provisional development plan consent should be granted. In my opinion, the appeal is arguable.
I turn now to the question of prejudice. The prejudice to the council if an extension of time is not granted is clear – it will lose its ability to challenge the Commissioner’s decision to grant provisional development plan consent. The nature and extent of the prejudice to the respondent requires more detailed analysis.
Mr Joseph Scinto is a director of Cornerstone Nominees Pty Limited. That company is involved in a partnership to undertake the proposed development on the subject land. Mr Scinto is also a building designer and a director of Aspex Building Designers.
On Monday, 18th October 2004, Mr Scinto contacted the council by telephone and asked whether it was appropriate to commence work on the site. He states that he received a positive response and that a demolition application was lodged with the council. There is no note of such a conversation on the council’s file, but I am prepared to proceed on the basis that a conversation in the general terms deposed to by Mr Scinto took place. The respondent proceeded to carry out various acts between 18th October 2004 and 21st October 2004. On the latter date it was advised that the council was seeking to appeal. The acts carried out by the respondent and my findings in relation to each of them are as follows:
1.As I have said an application for approval for demolition work was lodged with the council. Demolition work commenced on the subject land on 20th October 2004, and before Mr Scinto was advised that the council had lodged an appeal, three large sheds (approximately 70 square metres of floor area) and lean-tos were demolished. Although demolition was a complying development, the demolition of the buildings had not been approved by the council when the work was carried out. Evidence from Mr Deb establishes that on 18th October 2004 the council received a development application for what the council described as “demolition of existing service station”. As at 2nd December 2004 neither provisional building rules consent nor development approval had been granted to the respondent or the owner to demolish the existing buildings on the subject land. The council accepts that the development is a complying development and that approval will be forthcoming. Nevertheless, I agree with the submission put by the council that no weight can be placed on the carrying out of the demolition work when it was carried out without the requisite approvals.
2.On or about 18th October 2004 Cornerstone Nominees Pty Limited and the other partners in the partnership signed a residential contract with Dr Ian Parkinson for the sale of one of three blocks of land to be created by a plan of division, and upon which one of the dwellings which is the subject of the development plan consent is to be constructed.
The contract of sale and purchase was for land presumably with the provisional development plan consent and was subject to the approval of a plan of division. I heard evidence about the contract but it is unclear whether the contract is binding and what the precise terms and conditions of the contract are and in those circumstances I am not satisfied that the respondent will suffer a detriment in terms of the contract if I grant an extension of time.
3.A business called TMK Consulting Engineers was engaged by the respondent on 18th October 2004 to provide additional services to the respondent in respect of a clean up of the land.
An account for $1,232.00 from TMK Consulting Engineers dated 25th October 2004 was put before me. The account relates to the carrying out of eight hours work but it is not clear that it will be wasted expenditure if an extension of time is granted. It indicates that the work which is the subject of the account was carried out between 18th and 22nd October 2004, but it does not indicate precisely what work was carried out and when.
4.On 18th October 2004 Aspex Building Designers was engaged by the partnership to provide additional services to the respondent in respect of the three dwellings. An account for $7,177.50 from Aspex Building Designers was rendered on 25th October 2004 and it relates to work carried out by three draftsmen commencing on 18th October 2004.
There was considerable dispute between the council and the respondent as to the nature and cost of the work said to have been carried out by Aspex Building Designers. I do not propose to set out the details of that dispute. I am prepared to accept that some thousands of dollars in costs have been incurred by the respondent between the expiration of the appeal period and the time it was advised that the council sought to appeal.
5.On 18th October 2004 Mr Scinto, on behalf of the partnership, engaged the surveying firm, Mattsson & Martin, to complete the necessary survey work to give effect to the land division as part of the planning consent issued by the ERD Court. An account from that business was put before me. It is dated 6 October 2004 and is for the sum of $990.00. The work was carried out before the appeal period expired. On 12th October 2004 a land division application was lodged with the Development Assessment Commission. As at 2nd December 2004 neither provisional development plan consent nor land division consent had been granted to either the respondent or the owners to divide the subject land to create an additional allotment.
6.After the partnership became the owner of the subject land it leased back the subject land to the previous owner so as to enable the subject land to continue to be used for mechanical repairs until the outcome of the appeal was known.
However, after the ERD Court granted planning consent, the lease was terminated and the subject land is no longer being actively used for mechanical repairs. I do not think any weight can be placed on this fact because it is unclear whether the lease was terminated during the appeal period or after it had expired.
On the hearing of this application, counsel for the council told me that the council offered an undertaking that if it was granted an extension of time and if it was to succeed on the appeal, then it would not seek an order for costs against the respondent.
In this case, the length of the delay is short and there is an explanation for the delay. I think that the appeal is arguable and if I do not grant an extension of time the council will lose its ability to challenge the Commissioner’s decision. There will be some financial detriment to the respondent if I grant an extension of time, although on the evidence the exact nature of that is difficult to quantify. In essence, the prejudice is the liability incurred by the applicant to Aspex Building Designers in relation to work carried out between 18th October and 21st October 2004. To some extent at least that prejudice will be offset by the undertaking proffered by the council which I will include in the order which I propose to make. In all the circumstances, I think it is appropriate to extend the time for instituting the appeal.
Conclusion
I propose to make an order in the following terms:
Upon the City of Burnside undertaking not to seek against the respondent the costs of the appeal should it be successful on the appeal, I order pursuant to r 3.04(d) of the Supreme Court Rules 1987 that the time for instituting the appeal be extended up to and including 21st October 2004.
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