City of Mitcham v The Chappel Investment Company Pty Ltd & The Smallacombe Investment Company Pty Ltd - [2008] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
CITY OF MITCHAM v THE CHAPPEL INVESTMENT COMPANY PTY LTD & THE SMALLACOMBE INVESTMENT COMPANY PTY LTD
[2008] SASC 240
Judgment of The Honourable Justice Bleby
1 September 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Appeal against determination of Environment, Resources and Development Court that proposed development was properly classified as a retirement village, a kind of development which was neither complying nor non-complying - whether development properly classified as residential flat buildings and, therefore, non-complying - where no appeal lies against refusal to grant consent for a non-complying development - approach to be taken when determining nature of development for the purpose of establishing whether it is non-complying - appeal allowed - development non-complying - appeal to Environment Court incompetent.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS
Whether preliminary determination by Environment Court that appeal was competent was an "interlocutory order" - where no formal interlocutory application made - where submissions made, witnesses called and documents tendered - where no formal order of the court drawn up - decision of Environment Court was an "interlocutory order" - appeal to single judge of Supreme Court competent.
Development Act 1993 (SA) s 35 and s 39; Retirement Villages Act 1987 (SA) s 3; Environment, Resources and Development Court Act (SA) s 28 and s 30; Development Regulations 1993 (SA) Schedule 1, reg 16 and reg 17, referred to.
Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, applied.
Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435, distinguished.
Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula (2008) 159 LGERA 211; Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"non-complying", "retirement village", "residential flat building", "interlocutory order", "as a matter of practical reality"

CITY OF MITCHAM v THE CHAPPEL INVESTMENT COMPANY PTY LTD & THE SMALLACOMBE INVESTMENT COMPANY PTY LTD
[2008] SASC 240
BLEBY J:
Introduction

The question in these proceedings is whether the retirement village proposed by the respondents (“the developer”) is a group of “residential flat buildings” as defined in Schedule 1 of the Development Regulations 1993 (SA) (“the Regulations”). If it is, the proposed development was a non-complying development for the purposes of s 35(4) of the Development Act 1993 (SA) (“the Act”), and there was no right of appeal against the decision of the City of Mitcham (“the Council”) to refuse provisional Development Plan consent to the development.
The Environment, Resources and Development Court of South Australia (“the Environment Court”) determined that the nature of the proposed development was properly classified as a retirement village, being a kind of development which was neither complying nor non-complying under the relevant Development Plan. The Council has appealed against that decision and contends that the Environment Court should have classified the development as non-complying. In the alternative, the Council seeks an order of judicial review in the nature of prohibition, prohibiting the Environment Court from further dealing with the developer’s appeal.
The reason for the claim for alternative relief is that if the decision of the Judge of the Environment Court was an interlocutory order, an appeal lies to a single Judge of this Court.[1] However, if there was no order at all, there may be no right of appeal. I will return to that question when considering the orders that this Court should make.
[1] Section 30(1)(a), Environment, Resources and Development Court Act 1993 (SA).
The land which is the subject of the development application is comprised in Certificate of Title Register Book Volume 5904, Folio 599 and is situated in the suburb of Mitcham. It is within the Residential (Foothills) Zone of the Mitcham (City) Development Plan. At the relevant time, under the Development Plan, a residential flat building was a non-complying development in that Zone, while a retirement village was a kind of development which was neither complying nor non-complying.
The developer is a joint venture known as the Chappel Smallacombe Joint Venture. In its development application, the developer sought approval for the development, on a disused quarry site on the subject land, of buildings to be used as a retirement village. The development, as shown on the plans, has the following components:
a.Manor House – 3 levels comprising 15 apartments and area for community facilities and management office;
b.Read Homestead – 3 levels comprising 9 apartments;
c.Fuller Homestead – 3 levels comprising 9 apartments;
d.Blythewood Homestead – 3 levels comprising 9 apartments;
e.Coach House – 3 levels comprising 9 apartments;
f.Gate House – 3 levels comprising 15 apartments;
g.Eleven Cottages – 5 duplex buildings comprising 2 dwellings each and one detached building comprising a single dwelling; and
h.Associated earthworks, landscaping, internal road works and removal of 5 significant trees.
The plans show each of the 66 apartments and 11 cottages having its own living areas, bedrooms, kitchen, bathroom, laundry and lavatory. Each of the larger buildings is to have an underground car park, while the cottages are to have car parks individually accessed from the rear. The plans show a space, in Manor House, for a “community centre” but it seems that no specific community facilities have been planned.
The development application was filed in March 2003. A number of amendments were made to the plans before the application was determined. The Council did not classify the development application as non-complying; rather, it refused the application on its merits.
The developer appealed to the Environment Court against this refusal of consent. As a preliminary point, the Council argued that the appeal was incompetent because the proposed development included residential flat buildings and was therefore non-complying. Under s 35(4)(a) of the Development Act 1993 (SA), no appeal lies from a refusal of consent for a non-complying development. The Judge of the Environment Court considered that each of the buildings which comprised the proposed development, other than the single detached dwelling, did “technically” fall within the definition of “residential flat building” in Schedule 1 of the Development Regulations 1993.[2] However, the Judge ultimately held that, as a matter of practical reality, the nature of the development was not a series of residential flat buildings, but instead was a retirement village.[3]
[2] Chappel Smallacombe Joint Venture v City of Mitcham & Ors (No 1) [2008] SAERDC 39 at [21].
[3] Ibid at [29].
It is in respect of this decision that the Council appeals or, alternatively, seeks an order in the nature of prohibition to prevent further hearing of the appeal.
Relevant legislation
Section 35 of the Act is important for the resolution of this appeal. Relevantly, sub-s (1) provides that if a proposed development is of a kind described as a complying development under the Regulations or the relevant Development Plan, the development must be granted a Development Plan consent. Subject to that subsection, a development that is assessed as being “seriously at variance” with the relevant Development Plan must not be granted consent.[4]
[4] Section 35(2).
Subsection (3) provides that 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 (in this case) the Development Assessment Commission also concurs in the granting of the consent. As previously noted, sub-s (4) provides that no appeal lies against a refusal to grant consent to a non-complying development. Subsections (4a) and (5) provide:
(4a)To avoid doubt, nothing in a preceding subsection prevents a relevant authority refusing at any time to grant a development authorisation with respect to a non-complying development.
(5)A proposed development that does not fall into a category of development mentioned in a preceding subsection will be merit development (and any such development must be assessed on its merit taking into account the provisions of the relevant Development Plan).
As noted earlier, under the Development Plan, a “residential flat building” was a non-complying development in the Residential (Foothills) Zone of the Development Plan, while a retirement village was not listed as either a complying or a non-complying development.
“Residential flat building” is defined in Schedule 1 of the Regulations as meaning “a single building in which there are two or more dwellings”, but not including “a semi-detached dwelling, a row dwelling or a group dwelling”. “Dwelling” is defined to mean “a building or part of a building used as a self-contained residence”.
“Semi-detached dwelling” is defined as meaning a dwelling –
(a)occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and
(b)comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building;
None of the five duplex buildings shown in the plans qualifies under this definition, as they do not have a frontage to a public road or to a road proposed in a plan of land division the subject of a current planning authorisation.
“Row dwelling” is defined in the Regulations as meaning a dwelling –
(a)occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and
(b)comprising one of three or more dwellings erected side by side, joined together and forming, by themselves, a single dwelling;
None of the buildings in the proposal fall within that definition.
“Group dwelling” is defined as meaning –
… one of a group of two or more detached buildings, each of which is used as a dwelling and one or more of which has a site without a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation.
Only one of the buildings in the proposal is a single detached dwelling. However, it is not part of a group of single detached dwellings and is therefore not a “group dwelling” as defined in the Regulations.
From the description I have given of the apartments, each of them and each of the duplex cottages is a “dwelling” for the purposes of the definition of “residential flat building”. None of them falls within any of the exclusions to that definition. It follows that each of the buildings contained in the proposal, except the detached single dwelling, is a residential flat building as defined in Schedule 1 of the Regulations.
“Retirement village” is not defined in the Regulations, in the Act or in the Development Plan. However, s 3 of the Retirement Villages Act 1987 (SA) defines “retirement village” for the purposes of that Act as “a complex of residences or a number of separate complexes of residences (including appurtenant land) occupied or intended for occupation under a retirement village scheme …” Section 3 further provides that:
retirement village scheme … means a scheme established for retired persons and their spouses or domestic partners, or predominantly for retired persons and their spouses or domestic partners, under which—
(a) residences are occupied in pursuance of lease or licence; or
(b) a right to occupation of residences is conferred by ownership of shares; or
(c)residences are purchased from the administering authority subject to a right or option of repurchase; or
(d)residences are purchased by prospective residents on conditions restricting their subsequent disposal,
but does not include any such scheme under which no resident or prospective resident of a residence pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme …
I accept for present purposes that the development is intended to constitute a retirement village for the purposes of that Act.
The Mitcham (City) Development Plan contains some references to aged care accommodation. In the Metropolitan Adelaide Principles of Development Control, Principle 7 states that “[r]esidential development specifically for aged or disabled persons should be located with adequate access to essential community services and facilities”.
In the Council Wide Objectives relating to residential development, it is noted that the Development Plan makes provision for “special needs housing including … aged persons’ accommodation (nursing homes, hostels and retirement homes)”. In the Council Wide Principles of Development Control:
·Principle 28(c) states that various types of developments, including “accommodation for the aged”, should “provide effective landscaping”.
·Principle 31, which is headed “Aged Care Accommodation, Hostels and Nursing Homes”, sets out policies on matters such as the design and location of, and access to, accommodation for the aged.
A specific reference to a retirement village appears in Principle of Development Control No 20 in the section of the Development Plan relating to the Commercial (South Road) Zone. In that zone, both a retirement village and a residential flat building are included in the list of non-complying developments.
The Council’s argument
The Council did not argue in this appeal that the proposed development would not be run as a retirement village, or that it would not satisfy the definition of “retirement village” in the Retirement Villages Act 1987 (SA). Indeed, it was conceded that the proposed development might match both descriptions, “retirement village” and “residential flat building”. Rather, the Council’s submissions proceeded from the proposition that the status of the proposed development as a residential flat building or buildings was a jurisdictional fact. If the proposed development constituted residential flat buildings, then it would be a non-complying development. By virtue of s 35(4) of the Act, the Environment Court would lack jurisdiction to hear the appeal.
The developer’s argument
It was submitted on behalf of the developer that the approach taken by the Judge of the Environment Court was correct; that is that the Court must determine the nature of the development as a matter of “practical reality”, taking into account all the information available. On this view it would not be correct to take the approach, suggested by the Council in this appeal, of first asking whether the development answered the description of any of the kinds of non-complying development for the relevant Development Plan. Counsel for the developer argued that it was clear, as a matter of practical reality, that the proposed development was best described as a retirement village and not as residential flat buildings.
Consideration of the appeal
As noted above, the structure of s 35 of the Act is important. It describes what is to happen if a development is a complying development: it must be approved. It also describes what is to happen if a development is a non-complying development: it must (in this case) also have the consent of the Development Assessment Commission, and there is no right of appeal against a refusal to grant consent.
Section 39(4)(d) of the Act also enables a relevant authority to refuse an application that relates to a development of the kind that is described as a non-complying development under the relevant Development Plan without proceeding to make an assessment of the application. Regulation 16(2) of the Regulations provides:
(2)If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.
Regulation 17 prescribes certain other procedural steps to be taken in respect of a non-complying development. In particular, subregulation (3) provides:
(3)A relevant authority may, after receipt of an application which relates to a kind of development that is described as a non-complying development under the relevant Development Plan—
(a) refuse the application pursuant to section 39(4)(d) of the Act, and notify the applicant accordingly; or
(b) resolve to proceed with an assessment of the application.
If the relevant authority resolves to proceed with an assessment of the application, certain other procedures prescribed by subregulations (4), (5) and (6) must be followed.
Any development which is not a complying development or a non-complying development is to be assessed on its merits, taking into account the provisions of the relevant Development Plan.[5]
[5] Development Act 1993 (SA) s 35(5).
The effect of these several provisions is therefore to apply certain procedural restrictions on what can be done with respect to certain identified classes of development, however they may be described. Those restrictions are procedural only. They do not involve an assessment of the application against the provisions of the Development Plan. In most cases they involve the application of definitions in the Regulations or the Development Plan to the nature and circumstances of the development as described in the application. If a definition in the Regulations or the Development Plan applies and the defined term appears in the Development Plan as a type of development which is complying or non-complying as the case may be, then it must be treated accordingly. In the case of a non-complying development, the process of assessment against the provisions of the Development Plan may follow. It will not necessarily follow, depending on whether other relevant procedures have been followed.
Those procedural restrictions to which I have referred cannot be avoided by describing as something else what, by definition, falls within the class of a complying or non-complying development. That is so even though that other description may also accurately describe the nature of the development.
In this case it was beyond argument that the buildings the subject of the development application, other than the single dwelling, each fell within the definition of residential flat building contained in the Regulations. Each was therefore, in the Zone in question, a non-complying development, notwithstanding that together they also comprised a retirement village as defined in the Retirement Villages Act.
In my opinion the Environment Court fell into error when, for the purpose of determining whether this was a non-complying development, it attempted to classify the development as a retirement village. The only relevant question was whether the development was or included a series of residential flat buildings.

This is consistent with the approach taken by a full bench of the Full Court of this Court in Telstra Corporation Ltd v Corporation of the City of Mitcham.[6] In that case the appellant had applied for development approval to erect a cellular mobile telephone base station. The respondent Council formed the opinion that the application related to a “transmitting station” which, in the relevant Zone, was a non-complying development under the Council’s Development Plan. The appellant contended that its application was a “telecommunications station” and not a “transmitting station”. It appealed to the Environment Court which dismissed the appeal. A further appeal to the Full Court was dismissed. The judgment of the Court[7] was delivered by Debelle J. In the course of that judgment he said:
The proposed Telstra mobile phone base station performs the function, among others, of transmitting signals. It is one of its critical functions. The fact that the station also receives signals does not necessarily mean that it does not qualify as a transmitting station. The station might, therefore, be considered to be a transmitting station. The base station might also be described, perhaps a little more accurately, as a telecommunications station. However, that does not mean that it cannot also be described as a transmitting station. As this application is for a facility which has the function of, among others, transmitting, it relates to a development described in the Development Plan as a transmitting station. By virtue of Principle 50 it is, therefore, a non-complying development. The fact that it might also be described as a telecommunications station does not mean that it is not a transmitting station. This is not a case where the nature of the proposed development constitutes one kind of development exclusive of another. Instead, it is a case where the Development Plan describes two kinds of development and the proposed development matches both descriptions.[8]
[6] (2001) 79 SASR 509; [2001] SASC 166.
[7] Prior, Debelle, Nyland, Williams and Martin JJ.
[8] Ibid 513; [16]. See also Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula (2008) 159 LGERA 211 at 225-226; [2008] SASC 139 at [45].
By parity of reasoning in this case, the development may well be accurately described as a retirement village. That does not mean that it ceases to be a series of residential flat buildings. In the Telstra Corporation Case Debelle J offered some good policy reasons why such an approach should be taken:
There are two sound policy reasons for this approach. First, if a proposed development involves several different kinds of uses, one of which is a non-complying use and others which are complying uses, councils might find their powers to control the non-complying use severely restricted. Secondly, the Development Plan is concerned, among other things, with the visual impact of proposed developments. The towers used for a telecommunications station are sometimes very similar in appearance to those used for a transmitting station. It would be incongruous that, notwithstanding their similarity in appearance, one would be a non-complying development and the other not. The fact that this base station will use only a small antenna at the top of the existing building does not negate the force of that policy.[9]
[9] (2001) 79 SASR 509 at 513; [2001] SASC 166 at [17].
Such policy reasons are equally applicable in this case. The visual impact in this case is obvious by the residential density and multi-storey nature of the buildings. It would be incongruous if a series of residential flat buildings was non-complying, but an identical series of buildings, because together they formed a retirement village, was not non-complying.
The Environment Court’s error appears, to some extent, to have been induced by the Court’s reliance on Regulation 16(1) of the Regulations and the decision of this Court in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd.[10]
[10] (2001) 80 SASR 435; [2001] SASC 409.
Regulation 16(1) provides:
(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.
Those provisions relate to the process of assessment of the application against the provisions of the Development Plan – a process which may or may not follow the classification of the development as a non-complying development. The passage relied on by the Environment Court Judge in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd was a passage in the judgment of Debelle J at first instance in that case, approved by the Full Court:
When discharging the task imposed on it by reg 16(1), the planning authority must objectively examine the documents and other information before it and, as a matter of practical reality, decide what the nature of the development is. To the extent that the documents and other information before the planning authority may disclose links between one application and another, that is a relevant factor. Similarly, the extent to which the documents and other information may disclose intentions of the applicants, they too are relevant because those intentions may disclose whether, in truth, the four separate applications are for one larger development.[11]
[11] Ibid 439; [10].
Those observations will apply to any development which is not a complying development if and when the stage of assessment against the Development Plan is reached. The purpose of determining the nature of the proposed development in those circumstances is to ensure that the provisions of the Development Plan relevant to the development so identified are not overlooked or given inadequate weight in the assessment process.
It was in that context and for that purpose that Debelle J coined the expression that the nature of the development must be determined “as a matter of practical reality”. However, subject to what is said below, of which Compaction Application Tips is an example, that is not a relevant process in determining whether a development in a particular Zone is a non-complying development. That will be determined by whether the development as described in the application falls within any of the classifications of development which the Regulations or the Development Plan label as “non-complying”.
However, in the context of the facts and circumstances giving rise to the decision in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd, it was also an appropriate process in that case in order to determine whether the planning authority was required to consider four separate developments the subject of four separate applications, or only one development. The nature of the development or developments was not in issue. If they were to be treated as one, as the Full Court considered that they should be, the development, by definition, was a non-complying development. If they were to be treated as four separate applications, none of them, by definition, was a non-complying development. It was for that reason, in that case, that there was also an element of practical reality required in determining the nature and effect of the four applications then being considered. However, such an approach is inappropriate to a consideration of this case.
Finally, I have not overlooked the reference to “retirement village” in Principle of Development Control No 20 of the Commercial (South Road) Zone of the Development Plan. I reject any argument that, because “retirement village” is specifically mentioned in that one Principle alongside a reference to “residential flat building”, the rest of the Development Plan must be construed as excluding a retirement village from the description of “residential flat building”. To do so would be to fail properly to apply the definition contained in the Regulations as required by reg 3(1). Furthermore, not all retirement villages will be or consist of residential flat buildings. They may well constitute, in some cases, group dwellings or some other type of development defined in the Regulations or in a Development Plan.
For these reasons I consider that the development in question was a non-complying development. The purported appeal to the Environment Court by the developer was therefore incompetent by virtue of s 35(4) of the Act.
The appropriate relief
Section 30 of the Environment, Resources and Development Court Act 1993 (SA) creates a right of appeal against various decisions and orders of the Environment Court. Section 30(1)(a) provides that in the case of “an interlocutory order” the appeal lies to the Supreme Court constituted of a single Judge. Subsections (b)-(d) provides for appeals against certain other types of decision or order. Section 30(1)(e) requires that an appeal “in any other case” is to the Full Court of the Supreme Court. The appeal can therefore only be decided by a single Judge if it is an appeal against an interlocutory order of the Judge.
There was no interlocutory application made to the Environment Court relating to the determination of any preliminary issue. At a directions hearing which took place on 14 February 2008 there was a discussion concerning some preliminary issues, and all parties agreed to a preliminary hearing before a single Judge on the question whether the development was a non-complying form of development. On 2 April 2008 counsel for the Council made submissions and tendered one document. Counsel for the developer made submissions, tendered three documents and called two witnesses who were examined and cross-examined. The Judge then reserved her decision and delivered a judgment on 4 June 2008. She expressed her conclusion in the following terms:
For these reasons I have now expressed, I have determined that the nature of the development is (with the exception of the cottage containing the single living unit) not ‘residential flat buildings’ but is a retirement village, a kind of development which was at the relevant time neither complying nor noncomplying and therefore is to be assessed on its merits. The respondent Council was correct in its characterisation of the development.
The argument of the Council is rejected. Its application to have the proposed development declared to be a noncomplying kind of development is dismissed. The Court has jurisdiction to hear and determine the appeal against the decision of the Council.
The matter should now proceed to a fresh hearing of the appeal on the merits of the proposed development in the context of the relevant development plan. The matter will be listed for a directions hearing.[12]
[12] Chappel Smallacombe Joint Venture v City of Mitcham & Ors (No 1) [2008] SAERDC 39 at [29]-[31].
It does not appear that there was any formal application for a declaration as suggested in the second paragraph quoted above. However, by s 28 of the Environment, Resources and Development Court Act, the Court may, on matters within its jurisdiction, “make binding declarations of right whether or not any consequential relief is or could be claimed”. No formal order of the Court was drawn up.
The question, in those circumstances, is whether the decision constitutes an interlocutory order within the meaning of s 30(1)(a) of the Environment, Resources and Development Court Act. In Legal Practitioners Complaints Committee v A Practitioner[13] there was a purported appeal from a decision of the Legal Practitioners Disciplinary Tribunal dismissing a charge of unprofessional conduct. Objection was taken to the competency of the appeal. Both counsel agreed that the objection should be determined as a preliminary question. The Judge acceded to the request. He heard argument on the competency of the appeal and decided that it was competent. The decision was drawn up as a formal order and it was sealed. The Legal Practitioners Complaints Committee appealed to the Full Court pursuant to leave granted by the Judge. One of the issues in the case was whether the decision made by the Judge as to competency was appealable in a situation where s 50 of the Supreme Court Act 1935 provided for an appeal to the Full Court “against every judgment, … order, or direction of a Judge …”. Having decided that the word “direction” was not intended to extend the class of appealable decisions beyond that comprehended by the expressions “judgment” and “order”, King CJ said:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
Into which category does the learned judge's decision as to the competency of the appeal, fall? In the generality of cases, a ruling that an appeal is competent or that the court or judge has jurisdiction to entertain the particular appeal or application before it, is an incidental ruling on a submission made in the course of the hearing and is not made the subject of a judgment or order. It is therefore not appealable. But it may be made the subject of a judgment or order. Whether that has occurred depends upon the treatment of the matter by the court or judge. In the present case, the learned judge expressly determined the question of competency as a preliminary point separate and distinct from the other issues which fell for determination on the appeal. His intention was to decide competency as a separate issue and to make his decision upon that issue the subject of a judgment or order. He emphasised that by giving leave to appeal and indicating that he was not seized of the appeal generally. The drawing up and sealing of the order on the basis of a certificate of the judge's associate is not, of course, decisive, but it tends to confirm the status of the judge's decision.[14]
[13] (1987) 46 SASR 126.
[14] Ibid 127-128.
On the same issue, Prior J said:
… Neither party before the Full Court disputed that they sought an adjudication upon an issue that could have finally disposed of the proceedings. The ruling given by his Honour therefore answers the description of an interlocutory order or interlocutory judgment. The ruling, if to the contrary, would have had the effect of finally disposing of the issue between the parties. That would therefore have been a final order or judgment. The distinctions made between judgment and order are really irrelevant here, given the terms of s 50. Sometimes an order or a judgment is a judicial determination; the decision of a court. On others, an order of a court, whilst commonly signifying a direction or command, is distinguished from a judgment in cases where orders are made in summary proceedings or in actions on interlocutory applications, sometimes before, sometimes after, final judgment. The competency of an appeal in the Full Court does not turn upon such distinctions, or a need to reflect upon the different devices of judgments, decrees and orders of courts merged by the Judicature Acts of the last century: cf Ex parte Chinery (1884) 12 QB 342; Onslow v Commissioners of Inland Revenue (1890) 25 QBD 465; and Hall v Nominal Defendant (1966) 117 CLR 423, especially at 439-440 and 443-445. The decision of White J on the objection to competency of an appeal was an interlocutory order or interlocutory judgment.[15]
[15] Ibid 130.
Olsson J added:
Despite the procedural informalities which were attendant upon the process on which White J embarked at the invitation of the parties, I prefer to adopt the view that, in substance, what he was asked to do was, indeed, to hear and determine a preliminary issue of law as if a formal order for that purpose had been made pursuant to SCR O 34, r 2. This being so his "ruling" can fairly be regarded as an interlocutory judgment determining that issue (Bromley's case (supra[16])) — despite the quite inappropriate mode of expression of the order which was sealed and entered.[17]
[16] Bromley v Housing Commission of NSW (1985) 3 NSWLR 407.
[17] (1987) 46 SASR 126, 136.
The only material distinction between that case and this is that in this case no order was drawn up. The effect of the decision of the Judge of the Environment Court in this case was precisely the same as that which the Full Court considered in Legal Practitioners Complaints Committee v A Practitioner. On that basis I consider that the decision of the Environment Court Judge constituted an interlocutory order for the purposes of s 30(1)(a) of the Environment, Resources and Development Court Act 1993, and that this is therefore a competent appeal. I would therefore make an order allowing the appeal, setting aside the decision and order of the Environment Court and substituting therefor an order that the appeal to the Environment Court be dismissed as incompetent.
If I were wrong in that approach I would have no hesitation in granting the alternative relief, namely, an order of judicial review in the nature of prohibition, prohibiting any further proceedings on the appeal to the Environment Court.