City of Mitcham v MOL Pty Ltd & Anor No. Scciv-02-1103, Scciv-02-1112
[2003] SASC 17
•31 January 2003
CITY OF MITCHAM v M.O.L. PTY LTD & ANOR
M.O.L. PTY LTD & ANOR v CITY OF MITCHAM[2003] SASC 17
Civil
Applications for leave to appeal on questions of fact.
BESANKO J: MOL Pty Ltd and Averil Garrett (“MOL”) made three applications for provisional development plan consent to the City of Mitcham (“the Council”). It is unnecessary for me to set out the details of the applications. It is sufficient to say that the applications sought provisional development plan consents to develop land known as “Springwood Park”, Mount Barker Road, Leawood Gardens, as a 24 hectare vineyard including the irrigation and provision of trellising for that vineyard and to irrigate and provide trellising for a previously approved seven hectare vineyard. The applications were refused by the Council.
MOL appealed against the Council’s decisions to the Environment, Resources and Development Court (“ERD Court”). The Conservation Council of SA Inc had lodged representations with the Council with respect to two of the applications, and it subsequently became a respondent to the appeals.
On 31 May 2002, the ERD Court, constituted of a Judge and two Commissioners, delivered reasons indicating that it would uphold the appeals. On 25 July 2002, the ERD Court delivered reasons explaining why it would impose a number of conditions on the proposed development. In the result, the ERD Court made an order that provisional development plan consent be granted in relation to each of the three applications subject to 32 conditions.
The City of Mitcham lodged an appeal to the Full Court of this Court on 7 August 2002. MOL lodged an appeal to the Full Court of this Court on 8 August 2002. The Council’s appeal relates to the ERD Court’s reasons for deciding that provisional development plan consents should be granted. MOL’s appeal relates to the ERD Court’s reasons for imposing certain conditions.
The respective appeals are due to be heard in the February sessions of the Full Court. During a preliminary hearing, a question was raised as to whether the appellants in the respective appeals sought to raise questions of fact and therefore needed leave to appeal. That prompted each appellant to issue an application seeking leave to appeal insofar as any of the grounds of appeal raised a question of fact. Those applications came before me as the chamber Judge.
The constitution of the ERD Court means that any appeal from a decision of that Court is to the Full Court of the Supreme Court (s 30(1)(e)) of the Environment, Resources and Development Court Act 1993. Section 30(2) provides:
“An appeal lies as of right on a question of law and by leave on a question of fact (but this principle may be displaced or modified by the provisions of the relevant Act under which the jurisdiction is conferred).”
In St Ann’s College v The Corporation of the City of Adelaide and Renton [1999] SASC 479, St Ann’s College argued that the ERD Court had misinterpreted a principle in the City of Adelaide Development Plan. The Full Court said that such an argument clearly involved a question of law as it involved a challenge to the interpretation of a principle of development control. In Harrow Trust v Adelaide Hebrew Congregation Inc and the City of Burnside (2002) 221 LSJS 449, Bleby J considered whether a failure to apply or a misinterpretation of relevant provisions of the Development Plan involved a question of law. After setting out the objectives and principles in the Development Plan which were relevant in that case, Bleby J said:
“The words used in the extracts I have quoted are ordinary English words with no particular legal or technical meaning. Whether a given set of facts comes within the terms of those words will be a question of fact. The Court rejected Professor Briggs’ opinion based on the evidence of other experts. That evidence demonstrated, in the opinion of the Court, that the surveys relied upon by Professor Briggs were either not relevant to the intended residents or were otherwise flawed. It was open to the Commissioner comprising the Court to reject Professor Briggs’ evidence for the reasons that he gave. Having rejected that evidence he concluded that there was no material risk to children. He applied the ordinary English meaning of the words in the Development Plan. It was reasonably open to him to hold, having rejected that evidence, that the facts of the case fell within the relevant requirements of the Development Plan, and that there was no failure to comply with the plain English requirements of the Plan. All that could only amount to a finding of fact, and does not give rise to a question of law.”
In view of the principles expressed by the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, it is open to question as to whether an argument that the ERD Court has misinterpreted a word or provision in the Development Plan involves a question of law. The issue of whether the word or principle is used in its ordinary sense or has a technical meaning is a question of law. However, if it is clear that the word or principle has been used in its ordinary sense then the interpretation of the word or principle, and the application of that word or principle to the facts, will not ordinarily involve a question of law. I say “ordinarily”, because an argument that it was not reasonably open to the decision maker to make the decision it did does involve a question of law (Judicial Review of Administrative Action, Aronson and Dyer, 2nd ed. pgs 158-162).
In the planning field, there are a number of additional features which suggest that the interpretation of a word or principle in the Development Plan may not often involve a question of law. Clearly, the Development Plan is not a statute, and it is well established that it is not to be construed like a statute. It is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates (St Ann’s College v Corporation of the City of Adelaide and Renton per Debelle J at para 16). Furthermore, it may also be relevant to note in this context that the planning authority is not bound to apply the provisions of the Development Plan as if it were a statute. A development is to be assessed against the provisions of the Development Plan (s 33 of the Development Act 1993) and a planning authority must not grant consent for a development which it assesses as being seriously at variance with the provisions of the Development Plan (s 35(2) of the Development Act 1993). Many words and principles in the Development Plan are used in their ordinary sense, although, as one might expect, they are to be interpreted by reference to the context in which they appear.
I turn now to the facts of the present cases. If I adopt the approach that the interpretation of a word or provision of the Development Plan involves a question of law, then the grounds in paragraphs 1, 2, 3, 4, 5, 7, 8, 9 and 10 of the Council’s Notice of Appeal raise questions of law. I would grant leave to appeal on a question of fact in relation to the ground in paragraph 6 because it seems to me that it is closely related to other grounds in the Notice of Appeal. I would also grant leave to appeal in relation to the ground in paragraph 11 because it raises a relatively important matter and is based on an acceptance of certain findings made by the ERD Court.
The ground in paragraph 12 of the Council’s Notice of Appeal provides that the ERD Court:
“Should have found that (all of) the proposed development was sufficiently at variance with the Development Plan to warrant refusal of consent, and accordingly should have dismissed the first respondents’ planning appeals.”
On the face of it, this ground would enable the Council to argue any matter it saw fit and to invite the Full Court to review all or any of the planning issues in the appeals. Nothing was put to me to suggest that leave should be granted in such wide terms. On the other hand, if it is simply a conclusion which the Council says follows from the acceptance of some or all of the preceding matters in the Notice of Appeal then I am prepared to grant leave. I would grant leave if the following is added to the ground in paragraph 12:
“Matters Relied On
The appellant relies on each of the matters in paragraphs 1 – 11 above.”
If I am wrong, and an alleged error in the interpretation of a word or provision in the Development Plan does not involve a question of law, I would nevertheless grant leave to appeal in relation to grounds 2 to 11 inclusive. It seems to me that this is a significant development, and it is important to the parties and in terms of its impact on the area. The proper interpretation and application of the provisions of the Development Plan dealing with the Hills Face Zone raise matters of public importance. The grounds raised do not simply seek a review and assessment by the Full Court of the planning evidence called by the parties and the weight to be attached to that evidence. I realise that it is not always easy to draw a clear line, but it seems to me that the grounds raised are sufficiently important to justify leave to appeal.
I should add that on any view, ground 1 raises a question of law.
On the Council’s Notice of Appeal, the order I make is that, subject to the amendment I have set out, leave to appeal on questions of fact insofar as it may be necessary is granted in relation to grounds 1 to 12 inclusive.
In relation to MOL’s Notice of Appeal I think a question of law or mixed fact and law is raised in each of the three grounds. Certainly, matters of principle of some importance are raised by the three grounds. The proper regulation of the development in the future is an important matter. The order I make is that leave to appeal on questions of fact insofar as it may be necessary is granted in relation to the grounds of appeal in MOL’s Notice of Appeal.
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