Davies v Minister for Urban Development and Planning

[2011] SASC 87

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 Highways [2010] SASC 206; Barnard v National Dock Labour Board [1953] 2 QB 18; Ibeneweka v Egbuna [1964] 1 WLR 219; Hanson v Radcliffe Urban District Council [1922] 2 Ch 490; IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231; Chapman v Michaelson [1909] 1 Ch 238; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Re May [1917] 2 Ch 126; Re F [1990] 2 AC 1; Airedale N.H.S Trust v Bland [1993] 2 WLR 316; AB v Attorney-General (2005) 12 VR 485; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; O’Reilly v Mackman [1983] 2 AC 237; Franklin v The Queen (No 2) [1974] QB 205; Dickinson v Perrignon [1973] 1 NSWLR 72, 82; Hall v City of Burnside (No 4) (2007) 157 LGERA 365; Gouriet v Union of Post Office Workers [1978] AC 435; Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; Hall v City of Burnside (2006) 102 SASR 298; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; Bradman v Allens Arthur Robinson (2009) 103 SASR 438; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; Commonwealth of Australia v BIS Cleanaway Limited (2007) 214 FLR 271; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; City of Mitcham v Freckman (1999) 74 SASR 56; St Ann’s College v Corporation of the City of Adelaide [1999] SASC 479; Ilic v City of Adelaide [2010] SASC 139, considered.

DAVIES v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ANOR
[2011] SASC 87

Land and Valuation Division

BLEBY J.

The Action

1. Mr Davies is the long term lessee of a small parcel of land with a frontage to the River Murray known as Lot 15 Greenbanks.  Mr Davies’ land is within the area covered by the Development Plan of the Rural City of Murray Bridge.  Along the banks of the River Murray the Development Plan designates a Flood Zone immediately above the normal pool level of the river and a Fringe Zone beyond that.  The line separating those two zones crosses Mr Davies’ land.  These proceedings concern the location of that zone boundary across Mr Davies’ land.

2. In his summons dated 12 March 2010 Mr Davies seeks the following declaratory relief:

   ·A declaration that the amendment of the Development Plan for the Rural City of Murray Bridge made on 20 July 2000 by the First Defendant whereby Map Mu/Br8 was substituted for Map Mu/Br37 resulted in a substantive change in the location of the boundary of the Flood Zone across the Plaintiff’s land, which change of location was unlawful, invalid and of no effect;

   ·A declaration that the location of the Flood Zone boundary within the Plaintiff’s land must be determined by reference to Map Mu/Br37 in the 13 November 1998 consolidation of the Development Plan;

   ·A declaration that insofar as Principle of Development Control 38 for the Flood Zone in the Development Plan for the Rural City of Murray Bridge consolidation of 6 June 2008 purports to describe the plaintiff’s development as ‘non-complying’ by reference to the location of the boundary of the Flood Zone across the Plaintiff’s land, the said description is void for uncertainty.

3. The amendment to the Development Plan made on 20 July 2000 was made in accordance with the procedure set out in s 29(2) of the Development Act 1993 (SA). That sub-section at the time provided:

   (2)     The Minister may, by notice in the Gazette, amend a Development Plan—

   (a)     in order to correct an error in the plan; or

   (b)     in order to make a change of form (not involving a change of substance) in the plan.

   That was one of a number of circumstances provided for in s 29 where the same procedure could be adopted for other “formal” amendments to a Development Plan.[1]

   [1] Section 29 provided in full:

   29—Certain amendments may be made without formal procedures

   (1)The Minister may, by notice in the Gazette, amend a Development Plan in accordance with any plan, policy, standard, report, document or code which—

   (a)    is prepared, adopted or applied under any other Act; and

   (b)    falls within a class prescribed by the regulations for the purposes of this provision.

   (2)     The Minister may, by notice in the Gazette, amend a Development Plan—

   (a)    in order to correct an error in the plan; or

   (b)    in order to make a change of form (not involving a change of substance) in the plan.

   (3)     The Minister may, by notice in the Gazette, amend a Development Plan—

   (a)    in order to include a State heritage place in the plan; or

   (b)    in order to remove a place that is no longer a State heritage place from the plan.

   (4)An amendment under this section takes effect as from a time stated in the notice of amendment.

4. The amendment to the Development Plan substituted for all zone boundary maps in the Development Plan, new maps depicting those boundaries including all those defining the boundary between the Flood Zone and the Fringe Zone throughout the area covered by the Development Plan. That included the Flood Zone boundary that passed through Mr Davies’ land. He claims that that amendment altered the position of the boundary on his land by between 5m and 10m away from the river frontage, thereby extending the Flood Zone on his land and the area of his land in which any form of building work is non-complying development for the purposes of s 35 of the Development Act. He maintains that the amendment was not a change of form but a change of substance in the Plan, and was accordingly invalid. He contends that the only way the amendment could properly have been made by the Minister was by means of a Plan Amendment Report and the consultation process and procedures provided for in ss 26 and 27 of the Development Act.  He also alleges that any designation of a planning authority that a proposed development would be a non-complying development, where that decision is based on the position of the Flood Zone boundary depicted in the amended Plan, is void for uncertainty for a number of reasons.

5. The Minister and the Development Assessment Commission contend that the amendment was a matter of form only.  It was done for the ostensible purpose of incorporating Geographic Information System or “GIS” based mapping into the Development Plan “in order to improve the accuracy and function of the current product and provide a consistent quality throughout the State”.[2]  The Flood Zone boundary shown on maps in the 1998 consolidation of the Development Plan was intended to represent the approximate level of the 1956 River Murray flood and was hand drawn.  The amended maps are alleged to show more accurate zone boundaries and other features and were prepared digitally with more modern technological aids.

   [2]    Minute to the Minister’s delegate dated 13 June 2000, endorsed 14 June 2000, Exhibit WLR1 to the affidavit of William Lloyd Rudd sworn 5 May 2010.

   The Defendants’ Application

6. By an amended interlocutory application filed on 15 September 2010 the defendants seek:

   ·summary judgment pursuant to r 232 of the Supreme Court Civil Rules 2006 (SA) on the basis that there is no reasonable basis for the claim;

   ·in the alternative, an order pursuant to r 193 of the Rules dismissing the proceedings as an abuse of process.

7. In support of their application the defendants rely solely on the passage of time since the publication of the amendments to the Plans to argue that, in the exercise of the Court’s discretion, the declaratory relief sought by Mr Davies must be refused, or that the proceedings should be dismissed as an abuse of process.

8. 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

9. 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.

10. 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.

11. The approved development, although commenced, was never completed, and so Development Approval lapsed on 3 August 2002,[5] but not before the boatshed had been erected as a separate building on Lot 15.  The lapse of Development Approval meant that the boatshed was not an approved development.  In addition, it was significantly closer to the bank of the river than shown on the plans submitted with the development application, and the north‑eastern corner of the boatshed encroached onto Lot 16 by 0.56m.

    [5]    Development Act 1993, s 40.

12. The lease of the adjoining Lot 14 was sold, thus leaving the Davies’ interests with Lot 15 alone on which was then erected the free-standing boatshed.  The unlawful nature of the boatshed development and its rear access ramp was further compounded by later substantial structural alterations carried out on them without Development Approval.

13. By application dated 22 September 2005 Mr Davies applied for Development Approval for a single level dwelling to be built on top of and supported by the boatshed, with a balcony overhanging the front of the boatshed by more than 1.5m.  The application did not disclose the encroachment of the existing boatshed or of the proposed dwelling above, of which Mr Davies was then aware.  Nor did it disclose the unauthorised nature of the development, of which Mr Davies was aware, on which the proposed dwelling was based.  The development application and subsequent Development Approval were concealed from his neighbour, the lessee of lot 16, who was only able to commence judicial review proceedings after building work had commenced.  Development Approval was granted by the Murray Bridge Council in a process which the Full Court found to be flawed.[6]  The Development Approval was quashed by the Full Court on 17 July 2008, but not before Mr Davies had almost completed building the dwelling above the boatshed. The whole building on Lot 15 is therefore an unauthorised development. 

    [6]    Bade v Rural City of Murray Bridge and Davies [2008] SASC 189; (2008) 101 SASR 302.

14. I should add that the position of the zone boundary was not an issue before the Full Court, and the Court refrained from making any finding on this question.[7]

    [7] Ibid [58], 314.

15. On 24 November 2008 Mr Davies lodged a further application for Development Approval to reflect the existing development.  The application was referred to the Development Assessment Commission as being the relevant authority.  On 12 February 2009 the Commission notified Mr Davies’ solicitors that the application was “deemed to be a non-complying form of development within the Flood Zone”.  A copy of a plan showing the Flood Zone boundary was attached to the letter.  It was based on the amended Development Plan.

16. By notice of appeal dated 14 April 2009 Mr Davies appealed against that determination to the Environment Resources and Development Court (“the ERDC”).  A few days before the hearing on 10 September 2009, Mr Davies ascertained for the first time what he perceived to be a shift in the boundary arising from the amendment of the Development Plan made on 20 July 2000.  He was not previously aware of the amendment to the Plan.  On 10 November 2009 the ERDC dismissed his appeal. It considered that it did not have power to entertain a collateral challenge to the validity of the 20 July 2000 Plan amendment, but found that, even on the unamended Plan, part of the building was within the Flood Zone, thereby rendering the development a non-complying development. An appeal against the dismissal of that appeal has been discontinued.

17. On 12 March 2010 Mr Davies commenced this action.

18. It should be pointed out that a determination by the Development Assessment Commission that a development is a non-complying development does not prevent the grant of Development Approval. It may make it less likely,[8] and with certain immaterial exceptions, there is no appeal to the ERDC against a refusal to grant consent.[9]

    [8]    See Development Act 1993, s 35.

    [9] Ibid s 35(4).

19. It must also be borne in mind that the reasons why the present development is unauthorised include that the boatshed is not in a position for which the original approval was granted, that it contains structural alterations for which no approval has been given and it constitutes an encroachment onto lot 16.  As the Full Court observed in Bade[10] the remedy of enforced boundary adjustment which would normally be available under the Encroachments Act 1944 (SA) is not available in this case. There are therefore other reasons why Development Approval for the development as it stands might be withheld.

    [10]   Bade v Rural City of Murray Bridge and Davies [2008] SASC 189, [64], (2008) 101 SASR 302, 315.

    Declaratory Relief

20. In these proceedings the plaintiff seeks only declaratory relief. The declaration as a judicial remedy has an expansive history and much comment has been made on its nature and effect. At the heart of the declaration is its flexible and discretionary nature, and the Supreme Court has a broad jurisdiction within which to grant declarations. Section 31 of the Supreme Court Act 1935 (SA) provides:

    No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.

1. While s 31 ensures that the exercise of the power to make declarations is not open to objection the jurisdiction to do so lies elsewhere. Section 17 of the Supreme Court Act relevantly provides:

   (2)There shall be vested in the court‑

   (a)    The like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:

   (i)The High Court of Chancery, both as a common law court and as a court of equity:

   (ii)The Court of Queen’s Bench:

   (iii)The Court of Common Pleas at Westminster:

   (iv)The Court of Exchequer both as a court of revenue and as a court of common law:

   (v)The courts created by commissions of assize:

2. It is therefore by reference to the courts of England that it is possible to ascertain the nature and extent of the jurisdiction of the Supreme Court to grant declaratory relief.  It is unnecessary for the present purposes to undertake any detailed analysis, save to refer to that undertaken by Kourakis J in Tavitian v Commissioner of Highways.[11]  It suffices to say that the many and varied courts in England that had jurisdiction to grant declaratory relief are the foundation for the varied jurisdiction of the Supreme Court to do likewise.  Consequently there is a wide variety of circumstances which gives rise to the possibility of granting declaratory relief, which in turn gives rise to the flexible nature of the remedy.  It is often held that the jurisdiction to grant declaratory relief is as wide as judicial power itself, limited only by a court’s discretion.[12]  Declaratory relief is available at common law regarding rights as between private individuals,[13] as an incident of equitable relief,[14] as an incident of judicial review,[15] or as a stand alone declaration. Declarations can be made in wide ranging jurisdictions from the testamentary causes jurisdiction,[16] to declarations regarding the lawfulness of a particular form of medical intervention.[17]  Of course, in the constitutional context, declarations are readily used when the validity of a law is challenged.[18]

   [11] [2010] SASC 206. See also EM Heenan ‘History of Declaratory Relief – A Distinct Remedy Beyond Equitable Affiliations’ in Dharmananda & Papamatheos (eds), Perspectives on Declaratory Relief (2009), 51-88; PW Young, Declaratory Orders (2^nd ed, 1984), 21-33.

   [12]   Barnard v National Dock Labour Board [1953] 2 QB 18, 41; Ibeneweka v Egbuna [1964] 1 WLR 219, 225; Hanson v Radcliffe Urban District Council [1922] 2 Ch 490, 507.

   [13]   See eg IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231.

   [14]   See eeg Chapman v Michaelson [1909] 1 Ch 238.

   [15]   See eg Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

   [16]   In Re May [1917] 2 Ch 126, a declaration was sought whether a child was a “Roman Catholic” for the purposes of a will.

   [17]   See eg Re F [1990] 2 AC 1; Airedale N.H.S Trust v Bland [1993] 2 WLR 316; AB v Attorney-General (2005) 12 VR 485.

   [18]   Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 630 [103] per Gummow J.

3. Declaratory relief is particularly amenable in public law proceedings such as actions for judicial review.  This is partially due to the limitations and procedural complexities that have historically afflicted the prerogative writs.  While these complexities have been drastically reduced in various reforms, the attractiveness of the declaration in a public law action remains.  As Lord Denning MR noted in O’Reilly v Mackman: [19]

   Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.  They must be replaced by new and up to date machinery, by declarations, injunctions, and actions for negligence.

   [19] [1983] 2 AC 237, 259. See also Barnard v National dock Labour Board [1953] 1 QB 18, 41; Dickinson v Perrignon [1973] 1 NSWLR 72, 82.

4. It is often said that the bare declaration, uncoupled with an injunction for example, is non-coercive.  However, this was historically an advantage in public law proceedings, given the procedurally complex issues historically surrounding applications for orders against the Crown.  Further, its non-coercive nature is tempered in public law proceedings by the presumption that the Crown will abide by the law as declared by the Court.  As Lord Denning MR said in Franklin v The Queen (No 2), “[i]t is always presumed that once a declaration of entitlement is made the Crown will honour it”.[20]  It is in this context that it is often noted, as I did in Hall v City of Burnside (No 4),[21] that the declaration in public law has very much the same practical purpose and effect as an order in the nature of certiorari.

   [20] [1974] QB 205, 218.

   [21] [2007] SASC 460, [38]; (2007) 157 LGERA 365, 373.

5. However, that does not mean that courts can make declarations at large.  The declaration is a discretionary remedy.  In Ainsworth v Criminal Justice Commission Mason CJ, Dawson, Toohey and Gaudron JJ said: [22]

   It is now accepted that superior courts have inherent power to give declaratory relief.  It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.’  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.  The person seeking relief must have a ‘real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.

   [Footnotes omitted]

   [22] (1982) 175 CLR 564, 581-2. See also Gouriet v Union of Post Office Workers [1978] AC 435, 501 per Diplock LJ.

6. In Aussie Airlines Pty Ltd v Australian Airlines Ltd, Lockhart J summarised the rules that “should in general be satisfied before the Court’s discretion is exercised in favour of granting declaratory relief”, namely: [23]

   ·The proceeding must involve the determination of a question that is not abstract or hypothetical;

   ·Relief will not be granted in relation to future circumstances that may never happen or in circumstances where a declaration will produce no foreseeable consequence for the parties;

   ·The party seeking declaratory relief must have a real interest, that is sufficient standing;

   ·There must be a proper contradictor.

   [23] (1996) 68 FCR 406, 414.

7. In addition to these general considerations or rules governing the exercise of discretionary relief, there are also specific considerations to be borne in mind depending on the context in which the declaration is sought.  It is both unnecessary and unwise to attempt to articulate the many and varied considerations that may be relevant to each context.

8. The context of these proceedings is undoubtedly that of public law.  The plaintiff is seeking to challenge the purported amendment of the Development Plan by the Minister.  Save for one additional foreshadowed ground, discussed below, the declarations claimed by the plaintiff are founded on the assertion that the amendment is invalid.  Rule 200 of the Supreme Court Civil Rules 2006 provides that judicial review proceedings “must be commenced as soon as practicable after the date when the grounds for judicial review arose and, in any event, within 6 months after that date”. It is a key aspect of the defendants’ application that the principles and policy underpinning r 200 should apply. By his counsel, the plaintiff properly conceded that these proceedings could have been instituted as an action for judicial review. The defendants quite rightly do not criticise the choice made by the plaintiff not to institute these proceedings as judicial review proceedings. No criticism can be reasonably made, for the choice is open for litigants to pursue either path.[24]

   [24]   Cf. O’Reilly v Mackman [1983] 2 AC 237, 285 per Diplock LJ.

9. However, I consider that the principles underpinning the requirements of r 200 nonetheless remain a relevant consideration in determining whether the Court’s discretion should be exercised so as to grant the declaratory relief sought. To hold otherwise would create the unsatisfactory situation where one can side-step safeguards placed with respect to the challenge of administrative decisions by way of judicial review, simply by the forensic decision to pursue declaratory relief. Notwithstanding the fact that these proceedings are not instituted by judicial review, they remain a challenge to a purported exercise of a power by a public authority.

10. The significance of the need to take judicial review proceedings promptly was explained by Doyle CJ in Hall v City of Burnside.[25]  That was a case when the administrative decision affected only the parties to the litigation, and the prejudice to the defendant by extending the limitation period did not justify the extension of time for taking judicial review proceedings.  However, the observations are equally pertinent in considering the exercise of the discretion to make a declaration in this case.

    [25] [2007] SASC 480, [49]; (2006) 102 SASR 298, 304-5, Duggan J concurring.

11. 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

12. 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.

13. 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.

14. Having conducted that review I concluded:[30]

    [T]wo points need to be made. The first is that in r 232(2)(b) there has been a substantial relaxing of the requirement compared with the provisions of r 25.04 of the 1987 Rules. The second is that, as demonstrated by the Queensland cases, the words of the rule must be given their ordinary and natural meaning, unfettered by extraneous and unjustifiable paraphrases and concepts. The qualifications on the application of r 25.04 do not apply. The type of qualifications on different applications described in cases like General Steel Industries do not apply. It is not necessary to establish that the plaintiff's claim is manifestly groundless or does not admit of reasonable argument or other like expressions. There is increased scope for summary determination of claims that are unlikely to succeed. The test to be applied is whether there is no reasonable basis for the plaintiff's claim.

    [30]   JT Nominees Pty Ltd v Macks [2007] SASC 151, [86]; (2007) 97 SASR 471, 491.

15. In Ceneavenue Pty Ltd v Martin[31] the Full Court disagreed with my formulation.  In his judgment, with which Duggan and Anderson JJ agreed, Debelle J also reviewed the authorities.  He agreed that there had been a relaxing of the requirement for summary judgment on the application of a defendant and the reasoning in General Steel[32] was no longer applicable.[33]  However, he was unable to share the view that the observations of the High Court in Fancourt were not compatible with r 292.[34]  He considered that the meaning of the expression “there is no reasonable basis” for the claim was not clear so that some explanation was required.[35] By reference to cases dealing with plaintiffs’ applications for summary judgment against defendants in respect of striking out pleading and summary judgment based on the old specially endorsed writ proceeding, his Honour took a more stringent view of the operation of r 232(2)(b). He concluded: [36]

    The only question to be considered is whether there is a real question to be tried and whether that question has reasonable as distinct from fanciful prospects of success. Once the court concludes that there are reasonable prospects of success, it must dismiss the application for summary judgment.

    His Honour was therefore substituting for words in the rule expressions which he considered appropriately paraphrased the rule.

    [31] [2008] SASC 158; (2008) 106 SASR 1.

    [32]   General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

    [33]   Ceneavenue Pty Ltd v Martin [2008] SASC 158, [80]; (2008) 106 SASR 1, 21.

    [34] Ibid [87], 24.

    [35] Ibid [88], 25.

    [36] Ibid [94]; 28.

16. More recently, however, the High Court has addressed the relevant principles in Spencer v The Commonwealth.[37] The provision under discussion in that case was s 31A of the Federal Court of Australia Act 1976 (Cth). So far as is relevant that section provides:

    [37] [2010] HCA 28; (2010) 241 CLR 118.

    (2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)     the first party is defending the proceeding or that part of the proceeding; and

    (b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

    (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

    (a)     hopeless; or

    (b)     bound to fail;

    for it to have no reasonable prospect of success.

    (4)     This section does not limit any powers that the Court has apart from this section.

17. Subsection (2) is not materially different from r 232(2) of the Supreme Court Civil Rules.

18. In their application of s 31A(2) French CJ and Gummow J[38] adopted the approach taken in Fancourt v Mercantile Credits Ltd[39] mentioned above and a more recent dictum of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority (NSW)[40] to the effect that the various verbal formulae which had been used “are intended to describe a high degree of certainty about the ultimate outcome of the proceeding”.  Their Honours concluded:[41]

    …There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

    [38] Ibid [24], 131-2.

    [39] (1983) 154 CLR 87, 99.

    [40] [2006] HCA 27, [46]; (2006) 226 CLR 256, 275.

    [41]   Spencer v The Commonwealth [2010] HCA 28, [24]-[25]; (2010) 241 CLR 118, 131-2.

19. However, in their joint judgment, Hayne, Crennan, Kiefel and Bell JJ took a rather different view of the section.  Their Honours noted two relevant aspects of the section in question:[42]

    First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.

    Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

    [Emphasis in original]

    [42] [2010] HCA 28, [51]-[52]; (2010) 241 CLR 118, 139.

1. Their Honours referred to the exposition of previous provisions in two earlier decisions of the High Court,[43] and concluded:[44]

   Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.

   Likewise, it is dangerous to apply directly what has been said in the United Kingdom about the application of a test of "no real prospect" or what has been said in United States decisions about summary judgment. …

   How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

   [43]   Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

   [44] [2010] HCA 28, [56]-[58]; (2010) 241 CLR 118, 140-1.

2. Heydon J considered that it was not necessary to consider the correct approach to s 31A, as this was a clear case where summary judgment should be refused.

3. The whole Court decided that it was an inappropriate case, in the circumstances, for the entry of summary judgment. It is significant, however, that the plurality decided that such was the case based on a lower threshold than that adopted by French CJ and Gummow J. The plurality, in their conclusion, were assisted by the existence of s 31A(3) of the Federal Court of Australia Act, but the fact remains that sub-section (2), to which their Honours directed their principal attention, is not materially different from the provisions of r 232(2). In their view it was inappropriate to substitute other expressions for the words that appear in the sub-section.

4. Notwithstanding the decision of the Full Court of this Court in Ceneavenue Pty Ltd v Martin,[45] I regard the later decision of the plurality of the High Court in Spencer as binding authority on this Court and I propose to follow it.  The Full Court in Ceneavenue has been shown by the plurality to have been wrong in substituting a meaning for the text of r 232(2) which it does not bear.

   [45] [2008] SASC 158; (2008) 106 SASR 1.

5. Nevertheless, as the plurality in Spencer observed,[46] the power to dismiss an action summarily is not to be exercised lightly.  The Court must be cautious not to do a party an injustice by summarily dismissing the proceedings where, for example, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed.[47]  However, what amounts to no reasonable basis will ultimately be decided through a succession of decided cases.[48]

   [46] [2010] HCA 28, [60]; (2010) 241 CLR 118, 141.

   [47]   Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, [45]; (2006) 70 IPR 146, 157, Rares J.

   [48]   Spencer v The Commonwealth [2010] HCA 28, [60]; (2010) 241 CLR 118, 141.

6. In this case, the plaintiff seeks declaratory relief only.  The defendants do not suggest that the plaintiff has no reasonable basis for the merits of his claim.  Declaratory relief being discretionary, the defendants’ case is that there is no reasonable basis on which the Court’s discretion to grant the relief claimed could be exercised in favour of the plaintiff.  For present purposes it must therefore be assumed that the plaintiff will succeed on the merits of his claim.

7. In matters involving the exercise of the discretion, an applicant for summary judgment has a particularly difficult task.  Bradman v Allens Arthur Robinson[49] was a case in which the defendants applied for summary judgment against the plaintiff on the ground that the plaintiff’s action was statute barred, and that there was no basis on which the Court could exercise its discretion under s 48 of the Limitation of Actions Act 1936 (SA) to extend the limitation period. The case was decided after the Full Court’s decision in Ceneavenue Pty Ltd v Martin[50] but before the decision of the High Court in Spencer v The Commonwealth.[51]  Nevertheless, what Kourakis J said about summary judgment and the exercise of a discretion is relevant and is not affected by the fact that the grant of summary judgment against the plaintiff in that case was set aside on appeal by the Full Court.[52]  In his reasons Kourakis J said:[53]

   I accept that the exercise of a discretion, like the discretion to extend time pursuant to s 48 of the Act, is particularly susceptible to subtle factual considerations which may emerge at trial. For that reason, even more caution must be taken before summarily rejecting a claim that seeks a favourable exercise of a discretion.

   Even though s 48(5) of the Act expressly provides that an application for an extension of time may be determined before the close of pleadings, it seems to me that that subsection is addressed more to preliminary determinations of the issue on a full hearing of the application than to summary judgment applications. Nonetheless, I am satisfied that if it is shown that an application for a favourable exercise of a discretion is bound to fail it should be disposed of summarily. There is no reason to distinguish doomed applications for discretionary relief from other doomed factual and legal claims. The summary dismissal of a discretionary claim does not mean that the relevant discretion has been exercised without having regard to all relevant matters. The claim will only be summarily dismissed where it is shown that, realistically, no further material which could possibly affect the exercise of the discretion could emerge at trial.

   [49] [2009] SASC 80; (2009) 103 SASR 438.

   [50] [2008] SASC 158; (2008) 106 SASR 1.

   [51] [2010] HCA 28; (2010) 241 CLR 118.

   [52]   Estate of the Late Sir Donald Bradman v Allens Arthur Robinson [2010] SASC 71; (2010) 107 SASR 1.

   [53]   Bradman v Allens Arthur Robinson [2009] SASC 80, [30]-[31]; (2009) 103 SASR 438, 446.

8. Similarly, in Commonwealth of Australia v BIS Cleanaway Limited[54] Brereton J did not accept an argument that summary dismissal was not available in a case in which it was asserted that the plaintiff had to fail for discretionary reasons.[55]  Her Honour concluded:

   I therefore do not accept that summary dismissal is not available in a case in which it is asserted that the plaintiff must fail for discretionary reasons. However, summary disposal will be appropriate in such a case only where no reasonable judge could fail to decline relief for discretionary reasons, or, alternatively put, where the only proper exercise of discretion would be to decline relief.

   [54] [2007] NSWSC 1075; (2007) 214 FLR 271.

   [55] Ibid [6]; 274.

9. In order to grant relief in this case I must be satisfied that there is no reasonable prospect that, if the matter went to trial, the trial judge would exercise the discretion to grant relief.  It is not a question as to whether, on the information before me now, I would decline to grant the relief sought.  In order to determine whether there is a reasonable prospect that a trial judge would grant relief, I need to assess not only the information presently before me but whether there is a reasonable prospect that other evidence may be led at a trial which would have some bearing on the exercise of the discretion to refuse relief to the plaintiff.

   Some preliminary matters relevant to the exercise of the discretion

10. As I have already observed, it must be assumed for present purposes that the plaintiff will succeed on the merits of his claim.   It is therefore not necessary to embark on a consideration of those merits. Before turning to the relevant factors, it is necessary to deal with two preliminary matters.

    The form of the declaratory relief

11. First, the form and nature of the declaratory relief must be determined.  The plaintiff submits that the relief sought need only be with respect to the amendment of the Development Plan as it affects his land.  The flexible nature of the declaration, it is submitted, unlike the writ of certiorari, is such that the Court can effectively declare that only the line drawn on the map that affects the plaintiff’s land is invalid.  Accordingly, the plaintiff has drafted the declaration sought in the terms that the amendment that substituted Map Mu/Br8 for Map Mu/Br37 is invalid.  The plaintiff submits that the remaining parts of the amendment are not the subject of challenge.

12. This ignores the fact that the Development Plan was amended by the Minister in a single administrative act. That administrative act is embodied in the single notice as published in the Government Gazette on 29 July 2000. While the Court has jurisdiction to consider whether that administrative act was validly and lawfully made, the Court does not have jurisdiction to rewrite or amend that act. This is effectively what the plaintiff seeks in this submission. If the amendment to the Development Plan is invalid because it does not comply with the requirements of ss 26 and 27 of the Development Act with respect to Mr Davies’ land, then the entire amendment, as a single administrative act, falls.

13. Consequently, in considering the factors relevant to the exercise of the discretion, I must consider those in light of the fact that the consequence of the declaratory relief sought in this case must be that the amendment to the Development Plan is wholly invalid.

    Application of Project Blue Sky

14. The second preliminary matter arises from a further written submission delivered by the plaintiff in which he submits that the principle arising from the decision of Project Blue Sky v Australian Broadcasting Authority[56] gives rise to a further ground for relief. The plaintiff foreshadows, in those submissions, seeking permission to amend the grounds of relief to include a declaration that the Minister’s notice pursuant to s 29 of the Development Act was a breach of the Act insofar as it affects the plaintiff’s land but not invalid, and an injunction restraining the taking of further action based on that notice.  The defendants, in their responding submissions, oppose any such proposed amendment of the originating summons.

    [56] [1998] HCA 28; (1998) 194 CLR 355.

15. The plaintiff submits that the application of the principles in Project Blue Sky successfully answers the defendants’ contentions regarding public inconvenience based on invalidity of the amendment.

16. In Project Blue Sky v Australian Broadcasting Authority the High Court considered the operation and effect of the Broadcasting Services Act 1992 (Cth), with respect to the power of the Australian Broadcasting Authority (ABA) to develop program standards. Section 158(j) of the Act provided that one of the primary functions of the ABA was to “develop program standards relating to broadcasting in Australia”. Section 122(1)(a) provided that the ABA must determine standards to be observed by commercial broadcasting licensees. Section 122(2)(b) provided that such standards are to relate to, among other things, “the Australian content of programs”. Section 160(d) provided that the ABA was to perform its functions in a manner consistent with Australia’s international obligations under any convention to which Australia is a party.

17. Australia and New Zealand had entered into a trade agreement that relevantly provided that Australia was to accord to persons of New Zealand and to services provided by them no less favourable treatment than to Australian persons and to the services provided by them.  An Australian Content Standard was developed by the ABA which included a provision that until the end of 1997 Australian programs must comprise at least 50% of all programming broadcast between 6:00am and midnight, and that from the beginning of 1998 Australian programs must comprise at least 55% of all such programming broadcast.  Project Blue Sky argued that this Australian Content Standard was in breach of Australia’s obligation not to create a legal impediment that would adversely affect the capacity of the New Zealand film industry to compete equally with the Australian film industry pursuant to the terms of the trade agreement, and was therefore invalid as contravening s 160(d) of the Broadcasting Act.  The plurality held: [57]

    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute.

    [57] Ibid [91]; 388-9.

18. Their Honours drew the distinction between mandatory and directory statutory conditions, holding that s 160(d) was directory, not mandatory, and that an act done in breach of it does not result in invalidity.  However, with respect to such a breach, their Honours said: [58]

    In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.

    [58] Ibid [100]; 393.

19. The plaintiff contends that this matter is amenable to the same conclusion and to a similar remedy as envisaged by their Honours in Project Blue Sky.

20. I do not consider the principles discussed in Project Blue Sky avail the plaintiff in the present case.  In determining that s 160(d) of the Broadcasting Act was directory the plurality said: [59]

    Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity.

    [Footnotes omitted]

    [59] Ibid [92]; 389.

21. In order to consider whether the requirements in s 29 are either mandatory or directory, and consequently whether the alternative remedy proposed by the plaintiff is available, one must do so with reference to the scheme established by the Development Act.  An examination of that scheme reveals the fallacy in the plaintiff’s submission and its inconsistency with the thrust of his main argument.

22. The Development Act provides for two methods of amending a Development Plan. Sections 26 and 27 provide for what could be described as the “usual process” of amending a Development Plan. Such a process involved, at that time, the preparation of a Plan Amendment Report, together with the consultation process provided for in ss 26 and 27. However, s 29 provided for the amendment of a Development Plan in certain circumstances where the formal processes that underlie a s 24 amendment by the Minister need not be followed. For the present purposes, the Minister could, by notice in the Gazette, amend a Development Plan under s 29 if it effected a change in form (not involving a change of substance) in the Development Plan.[60] It necessary follows that if a change of substance were to be contemplated, as the plaintiff alleges occurred in this case and as I must assume for the purpose of disposing of this application, such an amendment could only be made in accordance with ss 26 and 27.

    [60] Section 29(2)(b).

23. A change of form and other changes specified in s 29 could be effected by the alternative means of amendment in that section without the need for the usual formal processes. If an amendment of substance was purportedly made under s 29 it did not comply with the requirements of ss 26 and 27. Those are mandatory requirements, not directory. The only conclusion that can be reached is that the amendment is invalid and should have been made in accordance with those sections. The plaintiff’s case is founded on the submission that this was an amendment of substance.

24. I am therefore faced, in the words of their Honours in Project Blue Sky, with an “essential preliminary” to the exercise of a statutory power which, on the plaintiff’s case, has not been observed. If that is so, the whole amendment is invalid, not merely unlawful, and must be treated as such.[61]  Consequently, the principles discussed in Project Blue Sky relating to more restricted remedies affecting only the rights of a party affected are not applicable, nor do they assist in assessing the defendants’ contentions below.

    [61]   See Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, [92]; (1998) 194 CLR 355, 389.

    Other preliminary matters

25. The plaintiff clearly has standing to mount this challenge as a person who is the long term lessee of land affected by the zone boundary.  A declaration of invalidity, or a refusal to make the declaration of invalidity, is not purely hypothetical or a result which will produce no foreseeable result.[62]  Although the plaintiff’s written submissions addressed the plaintiff’s reasons or motive for bringing this action the Court is not concerned with those.  Whether the relevant amendment of the Development Plan was valid or otherwise does not depend on the plaintiff’s motive for bringing this action.

    [62]   Ainsworth v Criminal Justice Commission (1982) 175 CLR 564, 581-2.

26. As mentioned earlier, the defendants rely solely on the passage of time since the amendment was effected in support of this application.

    Matters relevant to the exercise of discretion

    The passage of time

27. It is beyond doubt that the passage of time between the amendment made by the Minister on 20 July 2000, and the institution of these proceedings on 12 March 2010, is, in the public law context, a significant passage of time.  As I have said, this action is akin to an application for judicial review, for which the Rules of Court provide a limitation of a period of six months from the date of the decision.  This challenge was commenced almost ten years after the decision.  The amendment has now stood for almost 11 years.  There would need to be compelling reasons in the interests of the administration of justice to exercise the discretion to grant relief where an administrative decision of general application has been in force for so long.

1. Delay in the administrative context is not as concerned with the conduct or purposes of a party as it is with broader administrative concerns.  Those concerns relate to the fact that administrative decisions have potentially broad ramifications against many parties, and that administrative decisions should not be afflicted with doubt as to their validity over a significant period of time.  It is in that context that a significant passage of time passed is relevant to the exercise of the Court’s discretion and to the principle that administrative decisions should be challenged promptly.

2. In the present circumstances, these policy considerations have a particular significance.  The amendment to the Development Plan included the replacement of all maps showing the Flood Zone boundary in the area covered by the Plan.  These extended from the shores of Lake Alexandrina upstream along the banks of the River Murray for many kilometres to the border with the District Council of Mannum.  Much of the Zone, but not all, was on both sides of the river.  The Flood Zone boundary covered by the amendment traverses many hundreds, if not thousands, of allotments bounded by or within close proximity to the river within the area covered by the Development Plan.  The location of the boundary affects or may affect the owners of all those allotments.

3. There is a difficulty in assessing the actual impact of a declaration of invalidity of the amendment on such property owners and on others who might have been potential purchasers of such allotments since 20 July 2000.  It is not simply a matter of identifying what developments since then might be adversely affected by a declaration of invalidity of the amendment.  That would be an extremely difficult task in itself and would not paint the entire picture.

4. There could be many instances where development was not considered, where development was in contemplation but abandoned, where development was made in a particular manner, where development was approved in a particular form, where development was not approved in a particular form, or where the sale and purchase of an allotment was affected by the position of the Flood Zone boundary as depicted in the amendments to the Plan.  Conversely, a declaration of invalidity of the amendment may reduce the area of the Flood Zone on many allotments to the unexpected benefit of those landowners.  The very uncertainty in the ability to determine how many other parties may be or may have been affected, and in what manner, forms part of the justification for the principle that administrative decisions of this type must be challenged promptly.  If administrative decisions are left in uncertain limbo for significant periods of time, the ability properly to assess the potential reliance on them becomes diminished to the point of impossibility.  While the plaintiff submits that this is evidence that can be adduced at a trial, I consider that whatever evidence might be led cannot reveal the full impact of reliance by property owners, potential property owners, financiers and planning authorities on the Development Plan as amended.

5. What can be said with some degree of certainty is that numerous persons, bodies and authorities must have relied on the Flood Zone boundary and on many other aspects of the amended zoning maps which may have been affected by the conversion to GIS based mapping technology.

6. The consequences of delay of this nature can occur without any attribution of blame or fault on the party challenging the validity of the decision in question.  That party may not ever have been aware of the existence of the decision.  The enquiry is then not directed to the conduct of the applicant but to the seriousness of the consequences of acceding to the application.  Those consequences may well be determinative in the exercise of the discretion.

7. There are other situations of delay, however, where the governing factor in the exercise of the discretion whether or not to grant the remedy will depend on the applicant’s conduct.  When there has been inaction or standing by with notice, actual or imputed, of the allegedly defective decision, the exercise of the discretion may well turn on the circumstances of the applicant’s failure to take action and on some demonstrable or likely prejudice to another party.

8. Those considerations will also play a part in this case.  By 3 August 1999, when the plaintiff’s first Development Approval was granted, he was advised that that part of the proposed development comprising the boatshed, in the position designated on the plan accompanying the application, would be located, at least partially, within the Flood Zone as depicted on the original Development Plan.  The boatshed was nevertheless built on a sloping allotment closer to the water than shown on the Plan, and hence further into the Flood Zone.

9. Mr Davies deposes that he only became aware of the apparent shift in the zone boundary arising from the amendment to the Plan a few days before the hearing in the ERDC on 10 September 2009. For the purpose of this application that must be accepted. However, he was than aware that, as he alleges, the zone boundary had moved further away from the river frontage. He sought and failed to have the ERDC declare that the Plan amendment was invalid. On 10 November 2009 the ERDC delivered its judgment declining jurisdiction on that point. These proceedings were initiated some four months later. Even if the plaintiff only became aware of the apparent shift in the boundary a few days before 10 September 2009, it would have been readily apparent to him then that part of his development was alleged to have been in the Flood Zone as depicted in the amended maps. There is no explanation for the delay of a little over six months from the time of his becoming aware of the amendment to the date of issuing these proceedings. In the context of judicial review which, as already noted, was a legitimate alternative to these proceedings, that is longer than r 200(2) of the Supreme Court Civil Rules 2006 allows.[63]  Even if some latitude is given for his proceeding with the ill-advised collateral challenge to the Plan amendment, it does not explain a further four months delay after the ERDC decision on that challenge.

   [63]   Rule 200(2) provides:

   (2)An action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date.

10. The plaintiff submits that the character of the amendment is that of a “quasi-legislative” nature which must be treated differently from other administrative decisions and may be challenged within a reasonable time of a plaintiff becoming affected by it, regardless of how much time has passed since the invalid decision was made.  I do not accept this submission.

11. In the context of construing the meaning of the terms and effect of a Development Plan, this Court has repeatedly affirmed the proposition that it is not to be construed like a statute.[64]  It is a document designed to assist a planning authority to assess relevant development proposals and whether to approve them.  In Ilic v City of Adelaide[65] the plaintiff sought, in an action for judicial review, a declaration that the designation of a residence as a Local Heritage Place in the Adelaide (City) Development Plan was ultra vires.  The Minister for Urban Development and Planning, in that matter, argued that the designation of a local heritage place was legislative in nature and not administrative.  In dealing with this submission, Kourakis J undertook a careful analysis of the relevant High Court authority[66] and then said: [67]

    The amendment of a Development Plan by the inclusion of a place as a Local Heritage Place provides a factual circumstance on which the provisions of s 35 of the Act operates to regulate the powers of planning bodies. It is an act performed in execution of the provisions of the Act and is not in itself a legislative precept. The same can be said of Development Plans generally. Development Plans do not of themselves purport to regulate developers nor the decision making powers of the planning tribunals established pursuant to the Act. Development Plans provide the criteria against which decisions of planning authorities must be made in accordance with s 35 of the Act. The prohibition against developments which are not approved, the powers to formulate Development Plans, the powers of planning Tribunals and the constraints on how they must assess development applications all draw their legal force from the Act itself.

    [64]   See eg Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166, [25], (2001) 79 SASR 509, 515-516; City of Mitcham v Freckman [1999] SASC 234, [18]-[19], (1999) 74 SASR 56, 62-63; St Ann’s College v Corporation of City of Adelaide [1999] SASC 479.

    [65] [2010] SASC 139.

    [66] See ibid [72]-[79].

    [67] Ibid [80].

12. I respectfully agree with that conclusion. The fact that this particular amendment is an administrative act is acknowledged earlier in these reasons, including a concession by the plaintiff that this challenge could have been made by way of judicial review under r 200. I consider that the labelling of a particular administrative act as “quasi-legislative” is unhelpful. Furthermore, the plaintiff achieves nothing by seeking to qualify the passage of time by reference to when the plaintiff became affected by the decision. Like every other riparian owner in the Council area, he was affected by it when it was made.

    Prejudice to the defendants

13. The defendants submit that a relevant consideration is the prejudice to the Department of Planning and Local Government should a declaration of invalidity be made. This is based on the time and resources needed to process an amendment to the Plan if the processes of ss 26 and 27 of the Development Act are required to be adopted, details of which are deposed to in an affidavit filed by the defendants.  Such a submission can carry no weight in the present circumstances.  If a declaration of invalidity were made, the Court would effectively be determining that that process should have been followed in the first place.  No extra time or resources would be needed than if the correct process had been followed.  It is not as though a time-consuming expensive process would need to be repeated.  It was never undertaken.[68]

    [68]   Cf. Tavitian v Commissioner of Highways [2010] SASC 206, [76]-[79].

    Prejudice to the plaintiff

14. If the amendment to the Development Plan should have been processed in accordance with ss 26 and 27 of the Development Act, the plaintiff was denied the opportunity available to be heard under s 26. It is a policy of the Development Act that amendments that affect landowners’ rights must be made in the transparent manner open to the public scrutiny envisaged by ss 26 and 27. This is therefore a relevant consideration that would weigh against the defendants’ application.

15. Just as the potential impact on third parties is a relevant consideration whether to exercise the discretion, so too is the actual impact on the plaintiff.  It is uncontroversial that the relevant boundary zone passes through the plaintiff’s land.  However, the extent of the prejudice to the plaintiff is simply that of a lessee of an unimproved allotment.  The existence of the boatshed and the development the subject of the plaintiff’s present development application are irrelevant considerations.  He cannot claim prejudice through having constructed the dwelling and now facing the prospect of having to remove it. 

16. The boatshed itself is an unlawful development for a number of reasons of the plaintiff’s own making.  The house above the boatshed is an unlawful development by virtue of the decision of the Full Court decision in Bade.[69]  That was also due in part to the plaintiff’s own conduct in basing his then development application on a pre-existing development which he knew was unlawful.  Consequently the land must be considered as if the boatshed and the dwelling do not exist.

    [69]   Bade v Rural City of Murray Bridge and Davies [2008] SASC 189, (2008) 101 SASR 302.

17. It is not as though the plaintiff and the Council in good faith had acted on the amended Development Plan and the plaintiff had lawfully erected the dwelling only now to be faced with the prospect of his Development Approval being declared invalid as being based on an invalid amendment to the Plan.

18. It may be said that he has outlaid expense on his present application before the Development Assessment Commission and on an appeal to the ERDC, all of which will now be wasted.  That too must be viewed in its proper context.

19. It will be remembered that the plaintiff was informed on 3 August 1999 by the Murray Bridge Council, on the grant of Development Approval for the boatshed and related construction, that the boatshed, in the position designated on his plan, would be located, at least partially, within the Flood Zone, based on the Zone boundary then applying.

20. All that the amendments to the Development Plan did was to substitute a number of maps for those then existing in the Development Plan and to “adjust the mapping references throughout the … Development Plan text accordingly”.[70]  At the time he made his present development application the Development Plan prescribed what was a non-complying development in the Flood Zone by reference to the maps as amended in July 2000.  If the amendment is invalid that part of the Development Plan would now have to be read as referring to the maps as they were before the amendment.

    [70]   SA Government Gazette, 20 July 2000, p 189.

21. Principle 38 of the Flood Zone provisions at the time of his present development application relevantly provided:

    Non-complying Development

    38The following kind of development is non-complying in the Flood Zone shown on Maps … [All relevant map numbers are then listed]:

    …

    (4)     The construction of, conversion of, alteration of, or addition to any building other than:

    (a)an existing lawfully erected dwelling where:

    (i)the requirements of the South Australian Health Commission and Local Government for waste water and effluent disposal for permanent occupation of the dwelling are met or provided for in the development application; or

    (b)a garage or a shed, provided:

    (i)it is constructed in association with an existing, lawfully erected dwelling; and

    (ii)the number of ancillary buildings used for storage purposes on the site or allotment is not increased; and

    (iii)it is fitted with roller doors, removable panels or similar on two ends or sides (whichever elevations face the direction of the flow); or

    …

    [Emphasis added other than in line 1]

22. It was therefore readily apparent that if the plaintiff’s development was in the Flood Zone as depicted before the amendment to the Plan, as he had been told that it was, it would be a non-complying development.  There was therefore a grave risk, of which he must be taken to have been aware, of the development being declared a non-complying development even on the basis of the original maps.  Nevertheless, he persisted with his application and with the subsequent appeal to the ERDC.  He persisted with the appeal and with the unsuccessful collateral challenge to the amendment knowing that there was a grave risk that, even if his collateral challenge succeeded, his development would still be declared to be a non-complying development.  That has now been confirmed by the ERDC, and the appeal to this Court against that decision has been discontinued.

23. Even such a declaration is not fatal to his development application.  He may still persuade the Development Assessment Commission to grant Development Approval.  However, the probability is that he would be placed in no better position in relation to his present development application by succeeding in the present action.

24. That does not mean to say that he may not be restricted in the design of any future development on the land for which he may seek Development Approval.  However, in that regard, again he is in no different position to that of any other land owner or lessee affected by the amendment to the Development Plan.

    Summary Dismissal – Conclusion

25. I have already concluded that the declarations sought by the plaintiff can only be made on the footing that the whole of the amendment made to the Development Plan by the Minister on 20 July 2000 is invalid and not merely that part which affects the plaintiff’s land, and that any alternative relief proposed by the plaintiff would have the same effect.

26. That relief may be refused on discretionary grounds.  The essence of the defendants’ case on the present application for summary judgment is that relief must be refused on discretionary grounds based solely on the passage of time since the amendments to the Development Plan were made.

27. I have summarised all the facts relevant to the exercise of the Court’s discretion which have been placed before me.  With one exception, no-one has suggested that any other facts relevant to the exercise of the Court’s discretion could be led at the trial.  There was a suggestion that further evidence would need to be led as to the number of developments in the area covered by the Development Plan which might be affected if the amendment were held to be invalid.  Based on the nature and extent of the expert evidence contained in affidavits filed in these proceedings in relation to the plaintiff’s allotment alone, if such evidence were to be led, it could engage the Court in many months of enquiry concerning the position of the boundary before and after the amendment in respect of each allotment in question.  Given the reality of the likely costs involved and the value of the plaintiff’s potential development, such an enquiry is unlikely.  In any event, as I have already observed, it would not reveal the full effect on many persons and authorities and the decisions they have made based on the Development Plan provisions as they have been since 20 July 2000.  I consider that I am therefore in as good a position to decide any facts relevant to the exercise of the Court’s discretion as any judge hearing the trial of this action.

28. The passage of time since the amendment was made is now almost 11 years.  Success in the action relies on the invalidity of that amendment at the time of its making.  The Development Plan is a public document which, together with the Development Act and the Development Regulations, is one of the fundamental pillars of the planning regime in this State for the Murray Bridge Council area.  Its provisions affect thousands of land owners, developers, financiers, planners, planning authorities and the decisions they make.  Whatever may be the merits of a Development Plan, the need to be able to rely on its published provisions is paramount.  Invalidity from the time of its amendment which continues unrevealed for such a long time is likely to cause untold harm and to render inappropriate many decisions the extent of which can never be known.

29. That is one of the reasons why judicial review proceedings are required to be brought “as soon as practicable after the date when the grounds for judicial review arose, and in any event, within six months after that date”.[71]

    [71]   Supreme Court Civil Rules 2006, r 200(2).

30. This action is for declaratory relief only.  It does not require an extension of time.  Nevertheless, it is of the same nature and having the same effect as an application for judicial review.  Similar constraints on the bringing of a late application for declarations should apply.  If that is so, the extension required in this case is more than 20 times the standard required of an application for judicial review.

31. That delay is aggravated, at least to some extent, by the failure of the plaintiff to commence this action for more than six months after he was alerted to the possible invalidity.  However, given the passage of time to the point when he says that he became aware of the alleged invalidity, his further delay is less material than it might be in other circumstances of challenge to the validity of an administrative act.

1. The defendants will suffer no material prejudice by the grant of the declaration.

2. For reasons which I have explained, the plaintiff can claim no prejudice by virtue of the fact that his boatshed and dwelling already exist on the allotment.  He can also, in the circumstances which have happened, claim no prejudice by having brought his present development application where, on his own case in this action, it was likely that a declaration that the development is a non-complying development would be made.

3. In the end, any prejudice to the plaintiff is likely to be no greater than that affecting any other land holder in the area covered by the Development Plan who would be adversely affected by a failure to make a declaration of invalidity. He will have been deprived of the ability to participate in the processes provided by ss 26 and 27 of the Development Act in respect of this amendment.  Against that is the likely prejudice to many unascertained persons if a very late declaration of invalidity is made.

4. I can only grant summary judgment in favour of the defendants if I am satisfied that there is no reasonable basis for the claim against the defendants in the sense discussed earlier in these reasons.  In this case that translates to being satisfied that there is no reasonable prospect of a trial judge exercising the discretion to grant relief.  In my view, the extent of the passage of time and the likely prejudice to members of the community and to the due and fair administration of the planning laws of this State by making the declarations are compelling factors.  They will far outweigh the prejudice to the plaintiff and to others who may be similarly affected by not making the declarations.  In those circumstances I consider that there is no reasonable prospect of a trial judge exercising the discretion to grant the relief that the plaintiff seeks.

5. Accordingly, there will be summary judgment on the plaintiff’s claim in favour of the defendants.

   Abuse of process

6. While it is not strictly necessary to consider the question, I would not grant relief to the defendants on the alternative basis that these proceedings constitute an abuse of process pursuant to r 193.

7. Rule 193 of the Supreme Court Civil Rules 2006 provides:

   The Court may dismiss proceedings if‑

   (a)    The pleadings disclose no reasonable cause of action; or

   (b)    The proceedings are frivolous, vexatious or an abuse of the process of the Court.

8. It is not contended by the defendants that the pleadings in this action, as they are in affidavit form, disclose no reasonable cause of action. Nor do they contend that these proceedings are frivolous or vexatious. The defendants solely rely on that part of paragraph (b) of r 193 that is concerned with an “abuse of process”.

9. Abuse of process may take many forms.  Delay in prosecuting proceedings may, in some circumstances, be characterised as an abuse of process, but usually in connection with delay in prosecuting proceedings once begun.[72]  It can also arise with delay in instituting proceedings, particularly criminal proceedings, where the delay causes irremediable prejudice to the defendant.  Delay in commencing proceedings may also be relevant where that delay is occasioned by the unsuccessful prosecution of related proceedings based on the same facts.  In that case it is not delay so much as the attempt to side-step the previous decision that constitutes the abuse of process.  A not dissimilar situation arose in the Hall v City of Burnside litigation.[73]  The plaintiffs had bought an action for judicial review to quash a Development Approval for a development on their neighbour’s land.  Their claims included claims for alternative relief based on the same alleged invalidity of the Development Approval.  The proceedings were commenced almost eleven months after the date of the decision in question.  They sought an extension of time in which to bring proceedings for judicial review.  In the first decision the Full Court (by majority) on appeal refused to extend the time.  The defendants then applied for an order dismissing the plaintiffs’ action on grounds which included that the action constituted an abuse of process.

   [72]   Eg. 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.

   [73]   Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298; Hall v City of Burnside [2007] SASC 460; (2007) 157 LGERA 365.

10. In his reasons for judgment in the Full Court for refusing the extension of time Doyle CJ said:[74]

    If the plaintiffs bring other proceedings, not by way of judicial review, in which they challenge the validity of the building consent and the development approval on the grounds raised in these proceedings, they would face the issue of whether those proceedings should be stayed as an abuse of process.  If the Court in these proceedings refused to extend the six month period, there would surely be a strong argument that the plaintiffs should not be permitted to circumvent that decision by issuing proceedings not by way of judicial review raising the same challenge.  If we were to hypothesise that the other proceedings challenging the validity of the building consent and development approval had been brought without judicial review proceedings ever being brought, the same issue would arise.  Would it be appropriate to permit the plaintiffs to bring those proceedings if they could not satisfy the Court that, in proceedings by way of judicial review, they would have obtained an order extending the six month period?  It is arguable that a plaintiff cannot walk around the time limit in r 98.06 by the expedient of issuing proceedings that are not judicial review proceedings:  see Clayton v Ralphs (1987) 45 SASR 347 at 354-355 Jacobs J and Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251 at [17] Prior J and at [20] Lander J. On this point, some of the reasoning of Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 has continuing relevance, even though changes wrought by the English Civil Procedure Rules 1998 have led to a change of approach:  see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.

    [74]   Hall v City of Burnside [2006] SASC 283, [58]; (2006) 102 SASR 298, 306.

11. In granting the defendant’s application to dismiss the action I considered that the other remedies claimed were true alternatives to judicial review.[75]  I then said:[76]

    The practical effect of the alternative remedies of judicial review and declaration and injunction is, in this case, identical.  They are truly alternative proceedings.  Apart from the time limitation, there is no identifiable benefit of one procedure over the other.  To allow the application to proceed by way of declaration and injunction would be to allow the plaintiffs to gain a procedural advantage merely because of their reliance on an alternative remedy.

    …

    …The time limitation on an application for judicial review is there for the protection of public authorities.  The only apparent purpose for seeking to proceed by way of declaration and injunction is to avoid the protection afforded to the City of Burnside and its processes by the time limitation contained in r 98.06.  No other reason has been suggested for the inclusion of the declaration and injunction.  To allow that to occur would, in my view, constitute an abuse of process of the Court.

    [75]   Hall v City of Burnside [2007] SASC 460, [32]-[33]; (2007) 157 LGERA 365, 371-372.

    [76] Ibid [38], [41]; 373, 374.

12. The rationale behind the type of abuse of process discussed above is that a party will not be permitted to make continued use of the processes of the Court where inaction in progressing the claim constitutes a waste or misuse of the time and resources of the Court or where proceedings are taken or continued for the purpose of side-stepping some other decision of the Court.

13. In this case there is no complaint about delay or obfuscation in the conduct of the action.  There is no complaint that the plaintiff has failed in these or other proceedings based on the same facts.  There is no complaint that the seeking of declaratory relief is inappropriate to achieve the plaintiff’s desired end.  The only complaint is the lapse of time between the act complained of and the commencement of this action.  That will seldom, in itself, constitute an abuse of process.  It is to be dealt with in accordance with the requirements of any relevant time limitation and with principles governing the extension of time in the particular circumstances.

14. I am not satisfied that the lapse of time in this case constitutes an abuse of process on the part of the plaintiff.