City of Norwood, Payneham and St Peters v Baker No. Scciv-03-192

[2004] SASC 135

CITY OF NORWOOD, PAYNEHAM AND ST PETERS v BAKER
[2004] SASC 135

Full Court: Perry, Bleby and Gray JJ (ex tempore)

1. PERRY J:             I agree with the order proposed by Bleby J and with his reasons.

2. BLEBY J:             This appeal, from a single Judge of this Court, concerns the validity of the grant of provisional development plan consent for the demolition of an existing residence and the erection of a new residence. The amended plan for the new residence includes a free-standing garage for the purpose of housing two motor vehicles. The question before the trial Judge, on judicial review, was whether the appellant council properly classified the development as a Category 1 development for the purposes of section 38 of the Development Act 1993 (“the Act”). The trial Judge held that it was wrongly classified as a Category 1 development and should have been treated as a Category 3 development for the purposes of the Act. Classification into the different categories specified in the Act determines the process by which the application must be handled, rights of objection and, ultimately, some rights of appeal.

3. Before the trial Judge, the only issue of substance argued was whether the construction of the free-standing garage was properly encompassed by the expression “the construction of … [a] detached dwelling” within the meaning of paragraph 2(1)(a)(i) of Part 1 of Schedule 9 of the Development Regulations 1993. The trial Judge decided that it was not, and that the proposed development should have been treated as a Category 3 development.

4. What was not addressed by the arguments before the trial Judge, and hence by the trial Judge himself, and in the arguments put before this Court, was the fact that this was an application for provisional development plan consent not solely for the construction of a detached dwelling, whatever that may encompass, but for the demolition of an existing dwelling, thus taking it outside the framework of clause 2(1)(a) of Part 1 of Schedule 9 of the Regulations.

5. After judgment was reserved, the Court relisted the appeal to hear argument as to whether the application, insofar as it included an application to approve the demolition, should be treated as a separate application or as part of the one application, and in either event, whether the proposed development or developments could properly be classified as Category 1 under Part 1 of Schedule 9 of the Regulations.

6. It then became apparent, and has since been confirmed by affidavit, that after the trial Judge had reserved judgment and before he delivered judgment, the applicants for development, on 11 August 2003, lodged a further development application with the appellant council seeking development approval only to demolish the existing buildings and to remove them from the land. That was treated as a Category 1 development, and approval was granted on 12 August 2003. Provisional Building Rules consent was granted on 20 August 2003 subject to one condition, and final development approval was granted on 22 August 2003. The trial Judge delivered judgment on 21 August 2003. The buildings on the land were subsequently demolished.

7. On 13 January 2004, after demolition and after the institution of this appeal, application was made for provisional development plan consent for the construction of a detached dwelling on the land. The dwelling proposed was similar to that contained in the original application the subject of this appeal but, significantly, the application did not include the construction of a garage. That application was treated as a Category 1 development, and provisional development plan approval, subject to a number of conditions, was granted on 18 February 2004, before this appeal was heard.

8. The effect of these events is that the development the subject of the original application, and its demolition of an existing building and the construction of a new one, with or without a garage, can now never proceed. That development and the application for its approval was effectively abandoned when a separate application for demolition was made and when demolition took place in accordance with that application.

9. The original proposed development the subject of the original application can now never proceed, regardless of the outcome of these proceedings. Whatever application has been or may now be lodged cannot be the same as that which gave rise to these proceedings. To answer the questions posed by this appeal is to give an answer to what has now become a theoretical or hypothetical question. It can affect no-one’s rights.

10. The right to demolish has already been exercised, apparently lawfully. The right to have the original application treated as a Category 1 or Category 3 application is now academic. The answer can constitute no more than an advisory opinion.

11. While State Courts are not bound by strict notions of what constitutes Commonwealth judicial power under Chapter 3 of the Constitution this Court, like other Courts exercising general jurisdiction in law and equity, will decline to exercise its jurisdiction where individual rights are no longer in question and where hypothetical questions only remain: Bright v Tyndall (1876) 4 Ch D 189; Glascow Navigation Co v Iron Ore Co [1910] A.C. 293; Hole v Insurance Commissioner [1962] VR 394; Swift Australia Co Pty Ltd v South British Insurance Co Ltd [1970] VR 368.

12. It follows that the question whether a detached garage is included in the construction of a detached dwelling for the purposes of the Development Regulations must await decision in another case based on facts which properly raise the question and where individual rights will be affected.

13. It also follows that this appeal must be dismissed. In my opinion it is not appropriate in the circumstances to grant a permanent stay.

14. GRAY J:               I agree.