Davies v Minister for Urban Development and Planning

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SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division: Civil)

DAVIES v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ANOR

[2011] SASC 87

Judgment of The Honourable Justice Bleby

26 May 2011

ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME

Plaintiff challenges validity of the amendment of the Development Plan of the Rural City of Murray Bridge – amendment concerned the boundary between the Fringe Zone and the Flood Zone across the plaintiff’s land – plaintiff seeks declaratory relief only – defendants seek summary judgment against plaintiff – no reasonable basis for claim – alternative claim that the proceedings constitute an abuse of process.

Consideration of Court’s declaratory jurisdiction – discretionary remedy – application to proceedings challenging validity of administration action – relevance of limitation period for judicial review to the exercise of the discretion.

Consideration of principles governing summary judgment – proper interpretation of r 232(2)(b), Supreme Court Civil Rules 2006 – application to discretionary relief.

Form of relief claimed – whether consideration limited to effect of alleged invalidity on plaintiff’s  land alone – whether declaration merely of unlawfulness of defendants’ action available – consideration of principle discussed in Project Blue Sky v Australian Broadcasting Authority.

Consideration of factors relevant to the exercise of discretion – passage of time – whether amendment of Development Plan is a quasi-legislative act – prejudice to the plaintiff in granting summary judgment – relevance of history of unlawful development – prejudice to defendants and others in granting relief to plaintiff – whether no reasonable prospect of trial judge exercising discretion to grant relief.

Abuse of process – r 193(b) Supreme Court Civil Rules – relevance of availability of judicial review remedy – relevance of passage of time.

Held: No abuse of process – summary judgment granted.

Development Act 1993 (SA) s 26, s 27, s 29, s 35, s 40; Supreme Court Civil Rules 2006 (SA) r 193, r 200, r 232; Supreme Court Act 1935 (SA) s 17, s 31, referred to.
Spencer v Commonwealth (2010) 241 CLR 118, applied.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Ulowski v Miller [1968] SASR 277; Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278; BQ Doe Pty Ltd v National Australia Bank [1999] SASC 124; Lauro v The Marble House of Australia Pty Ltd [2010] SASC 211, distinguished.
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, not followed.
Bade v Rural City of Murray Bridge and Davies (2008) 101 SASR 302, discussed.
Tavitian v Commissioner of…

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Details
Case
[2011] SASC 87
Decision Date

CaseChat Overview and Summary

In Davies v Minister for Urban Development and Planning, the plaintiff sought a declaration that an amendment to the Development Plan of the Rural City of Murray Bridge was invalid. The amendment involved the boundary between the Fringe Zone and the Flood Zone across the plaintiff's land. The defendants sought summary judgment against the plaintiff, arguing that there was no reasonable basis for the claim and that the proceedings constituted an abuse of process. The court was required to consider the discretionary nature of declaratory relief, the principles governing summary judgment, and whether the plaintiff's claim was an abuse of process.

The court first examined the discretionary nature of declaratory relief and its application in proceedings challenging the validity of administrative actions. The court noted that the limitation period for judicial review was relevant to the exercise of the court's discretion but did not necessarily bar the grant of a declaration. The court then turned to the principles governing summary judgment, specifically rule 232(2)(b) of the Supreme Court Civil Rules 2006, which allows summary judgment if there is no reasonable basis for the claim against the applicant. The court considered whether the plaintiff's claim for a declaration of unlawfulness was available and whether the form of relief claimed was limited to the effect of the alleged invalidity on the plaintiff's land alone. The court also considered factors relevant to the exercise of the discretion, including the passage of time, the quasi-legislative nature of the amendment, and the potential prejudice to the plaintiff and others if relief were granted.

Finally, the court addressed the issue of abuse of process, considering the relevance of the availability of judicial review and the passage of time. The court held that there was no abuse of process and granted summary judgment in favour of the defendants. The court found that the plaintiff's claim had no reasonable prospect of success and that the defendants would be prejudiced if relief were granted. The court also noted that the principles of laches were not relevant to the grant of declaratory relief in this context.

In summary, the court granted summary judgment in favour of the defendants, finding that there was no reasonable basis for the plaintiff's claim and that the proceedings did not constitute an abuse of process. The court's decision highlights the importance of considering the discretionary nature of declaratory relief, the principles governing summary judgment, and the potential prejudice to all parties when exercising the court's discretion to grant relief.

Orders

Orders of the court

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Background

Background to the litigation

The factors on which the defendants rely in particular are:·The significance of the time that has elapsed since the amended maps were incorporated into the Development Plan;·The bringing of timely challenges to the Development Plans is a matter of public importance by virtue of the many decisions that are made and actions that are taken by both public authorities and private parties which assume the validity of those Plans;·If Mr Davies is successful, the Department of Planning and Local Government would be prejudiced because the Minister will then need to promote a further amendment to the Development Plan to incorporate the Flood Zone in the same or a similar form as currently represented by the amendment;·There are four zone maps in the Development Plan which include residential settlement areas where dwellings are located in close proximity to a zone or policy area that was mapped by reference to the 1956 flood level. If the plaintiff succeeds, many other land owners could be prejudiced by having the Flood Zone on their land enlarged. Developments in those areas in close proximity to the zone or policy area boundary which have taken place since 20 July 2000 could be open to challenge;·Mr Davies could not claim any greater prejudice by virtue of the fact that an actual development on his land which he seeks to defend has now been completed. This is because, for the reasons set out in Bade v Rural City of Murray Bridge and Davies[3] the plaintiff has not developed the dwelling in question in accordance with the approval that had been granted. It is said that Mr Davies could claim no greater prejudice than an applicant for development approval who had not commenced building and who was required to adjust their plans in order to obtain development approval.[3] [2008] SASC 189; (2008) 101 SASR 302.The Background Facts Because prejudice to Mr Davies may become a relevant issue and because, if the matter were to go to trial, the defendants would rely on the facts as found in the associated litigation in Bade v Rural City of Murray Bridge and Davies,[4] it is necessary to refer to those facts and to subsequent events for the purpose of determining this application.[4] Ibid. Lot 15 and the allotments on either side of it are quite small with a width and river frontage of approximately 12m. In 1999 Mr Davies obtained Development Approval to build a double boatshed on Lot 15 and to extend an existing house on the adjoining Lot 14 over the roof of the proposed boatshed. In the course of obtaining Building Rules approval he received a plan of the boatshed portion of the development showing contour lines over the allotment which indicated “1956 flood level” at a level approximately 1m above floor level of the boatshed. However, that was not by overt reference to any zone boundary shown on the Development Plan. Final Development Approval included a condition which stated in part:The applicant is advised that the proposed development will be located within the River Murray Flood Zone, which is subject to periodic flooding which may cause extensive or total loss.It would appear that that could only have been by reference to the boundary of the Flood Zone depicted in the 1998 consolidation of the Development Plan, before publication of the amendment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J
On the other hand, while the equitable doctrine of laches may be relevant to some actions for a declaration, I do not consider that the doctrine is a relevant consideration in this context. This is not a case where the plaintiff is seeking to invoke any principles of equity. Nor is it a case where an action in the nature of judicial review is brought by one party to prevent development by another and where the decision maker may take no active role in the proceedings. Principles akin to the doctrine of laches may be relevant in such inter-partes litigation where the decision affects only those parties. However, such principles can have no application where the administrative decision under challenge has much wider effect than on the rights of the immediate parties to the litigation. For the reason that the doctrine of laches would not apply to judicial review proceedings brought to challenge this decision, I consider that the doctrine is not a relevant consideration for the granting of declaratory relief in the present situation. The concepts of undue delay on behalf of the plaintiff as contemplated by laches cannot be readily imported into all public law proceedings seeking only a declaration. Rather, passage of time in the sense contemplated by r 200, and the policy of administrative decisions being challenged promptly, with which I deal in greater detail later, are proper considerations.Summary Judgment – Relevant Principles The power to grant summary judgment is provided by r 232 of the Supreme Court Civil Rules 2006. That rule provides:(1) The Court may, on application by a party, give summary judgment for that party.(2) Summary judgment may only be given if the Court is satisfied that—(a) if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or(b) if the applicant is a defendant—there is no reasonable basis for the claim against the applicant.The defendants must establish that there is no reasonable basis for the claim against them. The principles governing the operation of r 232(2) and similar provisions in other jurisdictions have been the subject of recent and differing judicial comment. In JT Nominees Pty Ltd v Macks[26] I had occasion to review the history of the rule and its predecessors in this State against the background of a number of cases from other jurisdictions. I concluded that the barrier to a defendant obtaining summary judgment against a plaintiff had been lowered with the enactment of r 232. I concluded that the various paraphrases of the test to be applied which had been identified by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW)[27] were no longer applicable under the present rule. Those tests included such expressions as the plaintiff’s claim being “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them (the pleadings) to stand would involve useless expense”.[28] I also considered that what the High Court in the joint judgment had said in Fancourt v Mercantile Credits Ltd,[29] of the then equivalent rule of the Supreme Court of Queensland involving a specially endorsed writ, namely that the power to order summary judgment “should never be exercised unless it is clear that there is no real question to be tried”, was no longer relevant to the present South Australian rule.[26] [2007] SASC 151; (2007) 97 SASR 471.[27] (1964) 112 CLR 125.[28] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129.[29] (1983) 154 CLR 87, 99.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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