Corporation of the City of Mitcham v Fusco

CORPORATION OF THE CITY OF MITCHAM v FUSCO
[2001] SASC 164
Land and Valuation Division

DEBELLE J. This is an appeal from a ruling by the Environment Resources and Development Court that the evidence of three proposed witnesses should not be admitted. There is an issue whether the appeal is competent.
On 14 February 2000 the appellant, the Corporation of the City of Mitcham (“the Council”), issued an enforcement notice to the respondents, (“the Fuscos”), pursuant to s 84 of the Development Act 1993 (“the Act”). The Council’s notice alleged that the Fuscos had changed the use of a portion of their land without development approval contrary to s 32 of the Act. The alleged use was the planting of an olive orchard. The orchard occupies some 1.2 hectares of a property containing 15 hectares and consists of about 120 trees. The Fuscos appealed to the Environment Resources and Development Court (“the Environment Court”) against the notice.
The Fuscos use their land for residential purposes. In the Environment Court, they contended that the planting of an olive orchard is not a development as defined by the Act. They rely on para 5 of Schedule 3 of the Development Regulations 1993 (“the Regulations”) and contend that the use of the land is ordinarily regarded as (and is in fact) reasonably incidental to their use of the land. If the planting of the olive orchard is not a development, the Fuscos would not have to obtain development approval and the enforcement notice would be invalid.
The Council sought to lead evidence from three witnesses, said to be experts, relating to the propensity of olive trees to seed beyond the boundaries of the land on which they are grown and the flammability of olive trees. It was contended that the evidence was relevant to the question whether the use of the land for the olive orchard was in fact reasonably incidental to the use of the land for residential purposes. The Environment Court ruled that the evidence was not relevant. The Council has appealed from that decision.
Section 30 of the Environment Resources and Development Court Act 1993 provides for rights of appeal. Subsection (1) sets out the circumstances in which an appeal lies. It provides:
“30. (1)    Subject to this section and to any provision in a relevant Act as to appeals against a decision or order of the Court in the exercise of a jurisdiction conferred by that Act, an appeal lies–
(a)    in the case of an interlocutory order made by the Court–to the Supreme Court constituted of a single Judge;
(b)    in the case of a decision or order given or made by one or more commissioners (not being a decision or order of a full bench)–to the Supreme Court constituted of a single Judge;
(c)    in the case of a decision or order given or made by a magistrate–to the Supreme Court constituted of a single Judge;
(d)    in the case of a decision or order given or made by a Master or a registrar–to the Supreme Court constituted of a single Judge;
(e)    in any other case–to the Full Court of the Supreme Court.”
Mr Manos, who appeared for the Council, contended that the ruling made by the Environment Court was an interlocutory order of the kind to which s 30(1)(a) refers.
It may be difficult to define what is meant by an interlocutory order. In this context, the distinction between an interlocutory and final order is irrelevant. The only question is whether a ruling on the admissibility of evidence constitutes an interlocutory order. Although it may be difficult to define an interlocutory order, I do not think it includes a ruling that evidence of a witness is inadmissible. I gratefully adopt the reasons of the Court of Criminal Appeal in New South Wales in R v Steffan (1993) 30 NSWLR 633. In that decision, the court had to consider the operation of the expression “interlocutory judgment or order” in s 5(f) of the Criminal Appeal Act 1912 (NSW) which provides a right of appeal to the Director of Public Prosecutions against an interlocutory judgment or order in criminal trials and to any other party the ability to appeal against such an order if leave is obtained. The court said at 635 – 636:
“Before turning to some of those cases, however, it is instructive to consider first how the phrase and its component parts are ordinarily used. A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a ‘judgment’, but that is an altogether different usage of the word ‘judgment’ and denotes the reasons which have been expressed rather than the formal act of the court.”
The court then held that a ruling on evidence made in the course of a trial is not an interlocutory judgment or order. See also R v Powch (1988) 14 NSWLR 136 where it was held that the refusal of a trial judge to direct the recall of a Crown witness for further cross-examination was not an interlocutory judgment or interlocutory order despite the delivery of reasons. In the course of its reasoning, the court examined a number of decisions in which different kinds of rulings in criminal trials were held to be interlocutory judgments or not. Some examples of interlocutory judgments or orders are a refusal to quash an indictment: Waterhouse v R (1992) 62 ACrimR 59; and a refusal to order a change of venue of a trial: R v Baker (Court of Criminal Appeal, 5 April 1993, unreported) which is noted at 637 in the reasons in R v Steffan. In part, the decision in R v Steffan reflected the long-standing policy of courts that it is undesirable that criminal prosecution should be interfered with by interlocutory appellate procedures prior to conviction and sentence: R v Steffan at 642.
In my view, like considerations apply in civil proceedings of this kind. Rulings on the admissibility of evidence are capable of being changed as the hearing proceeds. Furthermore, as with a criminal trial, it is undesirable that civil proceedings should be interrupted by appeals in relation to rulings on the admissibility of evidence. Not only might the ruling be altered as the hearing proceeds but, in addition, the ultimate decision of the court might render it unnecessary to examine the correctness of the ruling on evidence. For these reasons, the expression “an interlocutory order” does not include a ruling on the admissibility of evidence. There are a multitude of procedures in civil actions which may give rise to interlocutory judgments or orders. But I do not think it is intended that s 30(1)(a) should apply to rulings on the admissibility of evidence. I do not think that the provisions of paras (b), (c) or (d) of s 30(1) require any different conclusion.
For all of these reasons, the appeal is incompetent.
Out of deference to the argument advanced by Mr Manos, I add the following. The relevant parts of para 5 of Schedule 3 provide that the following is not development:
“5. The use of land and the use of any lawfully-erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building, including, without limiting the generality of the foregoing, the following uses of land and buildings:
(a) the carrying on of a home activity.”
There are at least three questions which are raised by the preamble to para 5. The first is whether an orchard of 120 olive trees is ordinarily regarded as reasonably incidental to residential use. The second is whether an orchard of 120 olive trees is in fact reasonably incidental to residential use of land. Both must be proved because, in some cases, what might ordinarily be regarded as a reasonably incidental use is in fact conducted in a way that is quite beyond a reasonably incidental use so that it can be considered abnormal and unusual: City of Noarlunga v Usher (1981) 29 SASR 109 at 113. At the end of the day, it will be a question of fact and degree as the remarks of Wells J in Usher’s case at 117 indicate. The third issue to be addressed is whether the use is for the substantial benefit of the Fuscos who are residing on the land. Unless all three matters are proved, then para 5 cannot apply. The Fuscos will have to satisfy the Environment Court of all three aspects of what constitutes a reasonably incidental use of their land.
However, in this case the relevant issues extend beyond the three so far identified. The fact that a home activity is deemed by para 5 to be a use which is reasonably incidental to other uses of land widens the issues to be addressed. That follows from the definition of home activity in Schedule 1 of the Development Regulations. The definition reads:
“‘home activity’ means a use of a site by a person resident on the site–
(a) that does not detrimentally affect the amenity of the locality or any part of the locality; and
(b) that does not require or involve any of the following:
(i)assistance by more than one person who is not a resident in the dwelling;
(ii)use (whether temporarily or permanently) of a floor area exceeding 30 square metres;
(iii)the imposition on the services provided by a public utility organization of any demand or load greater than that which is ordinarily imposed by other users of the services in the locality;
(iv)the display of goods in a window or about the dwelling or its curtilage;
(v)the use of a vehicle exceeding three tonne tare in weight.”
Paragraph (a) of the definition requires examination of the activity for the purpose of determining whether it will detrimentally affect the amenity of the locality. The evidence which the Council proposes to lead is directly related to that issue. The questions whether olive trees will self-seed on other land and whether olive trees have a particular tendency to be flammable both directly touch on the amenity of the locality. The amenity of the locality has the potential to be adversely affected by self-seeding olive trees. Plainly, the amenity of the locality will be adversely affected if there is a higher risk of fire than hitherto.
There are no pleadings in the Environment Court. The enforcement notice and the Fuscos’ appeal from that notice do not spell out the issues as clearly as might be desired. However, the submissions made on behalf of the Fuscos suggest that they might contend that their activities could be classified as a home activity. Certainly, there is nothing which prevents them from advancing such a submission. The evidence which the Council seeks to lead is relevant to that issue. The Environment Court has therefore erred in preventing the Council from leading that evidence. Although this appeal must be dismissed as incompetent, the Environment Court might be prepared to reconsider its ruling.

[2001] SASC 164

23 May 2001