City of Unley v Hall & Ors No. Scciv-01-1673

[2001] SASC 444

CITY OF UNLEY v HALL & ORS
[2001] SASC 444

Land and Valuation Division

1. DEBELLE J. The appellant has appealed to a single judge of this Court from a decision of the Commissioner of the Environment, Resources and Development Court pursuant to s 30(1)(b) of the Environment, Resources and Development Court Act 1993 (“the Environment Court Act”). However, the entitlement to appeal is not absolute. The appellant has a right of appeal on a question of law, but must obtain leave to appeal on a question of fact: s 30(2) of the Environment Court Act.

2. The appellant applies for leave to appeal on questions of fact to the extent that leave might be necessary. As is stated in the submissions filed in support of the application, the application is made out of an abundance of caution.

3. None of the three grounds of appeal, in any respect, raise any questions of fact. They purport to raise questions of law. The extent to which they do so may be open to question. However, that is an issue for another day.

4. The line between questions of fact and questions of law is, of course, often blurred.  However, I do not think that there is any ground on which it is suitable to grant leave to appeal on questions of fact. The facts in this case are clear. The reasons of the Commissioner show that there is a good deal of common ground.  The nature of the development proposal is clear. There are no issues of fact concerning the nature of the use occasioned by the development. The questions of law which are alleged to exist do not turn on any questions of fact.

5. I note that the appellant has not stated as accurately as it might in para 3 of its grounds of appeal what the Commissioner decided. The Commissioner did not find that the proposed use of the land as service trade premises may well be an appropriate use within the Mixed Use 3 Zone. Instead, he found that “In land use terms, service trade premises may well be an appropriate use within the Mixed Use 3 Zone”. He was looking generically to the nature of the use, rather than to this particular use which he was not prepared to allow on the ground that it was of a large scale not compatible with what he held to be the small scale type of development required in this Zone.

6. For all of these reasons, leave to appeal on questions of fact is refused.