Development Assessment Commission v Macag Holdings Pty Ltd - [2001] SASC 189

DEVELOPMENT ASSESSMENT COMMISSION v MACAG HOLDINGS PTY LTD
[2001] SASC 189
Full Court: Doyle CJ, Williams and Martin JJ

DOYLE CJ This is an appeal by the Development Assessment Commission (“the DAC”) against a decision of the Environment, Resources and Development Court (“the ERD Court”). The ERD Court refused to grant leave pursuant to s85 of the Development Act 1993 (SA) (“the Act”) to serve a summons on the respondent, Macag Holdings Pty Ltd (“Macag”). The proposed summons sought an order restraining an alleged breach of the Act. There is also a cross-appeal by Macag, claiming that the ERD Court should have decided that the DAC was estopped from bringing the proceedings in the ERD Court.
Macag is the registered proprietor of land at 10 Duncan Road Beaumont. Macag’s directors are Mr and Mrs Seeley. The DAC instituted proceedings in the ERD Court, applying for leave to serve a summons on Macag. The proposed summons sought an order restraining Macag from undertaking development on certain land by filling the land without having obtained a development consent. The application was made under s85 of the Act. The ERD Court refused leave to serve the summons. It decided Macag had no case to answer. It made that ruling on the basis that the filling activity engaged in by Macag did not constitute development. Consequently, there could be no breach of the Act.
The Subject Land and the Filling Activity
The subject land is situated to the east of Duncan Road at Beaumont. The land is an irregular allotment, trapezoid in shape with a narrowing point at its northern end. Before the filling began it was vacant and unused. The evidence indicates the land was densely vegetated with a mixture of exotic and native bushes and trees. The topography of the land involves a steep gully which traverses the land from south (the higher end) to north. The gully is quite deep with steep sides. The gully once extended beyond the subject land to the north and south.
The land at the subject land’s southern boundary (the head of the gully) was formerly used as a rubbish tip. It is no longer used for that purpose and has been filled in with soil, but remains unconsolidated. That land now has a generally flat to undulating surface. It slopes downwards in a generally south-westerly direction toward the subject land.
The activity the subject of the present appeal and the alleged breach of the Act is the filling of the subject land. It is undisputed that Macag has begun to fill the gully on its land. The amount of fill is not clear. The trial judge suggested it would involve “the placing of many thousands – perhaps hundreds of thousands - of cubic metres of rock and soil on the land.”
The development applications
The proceedings in the ERD Court have progressed on the basis that there has been no development approval for the filling activity. Macag has, however, made two development applications related to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SASC 189
Decision Date: 19 July 2001

CaseChat Overview and Summary

In the matter of Development Assessment Commission v Macag Holdings Pty Ltd, the court dealt with an application brought by the Development Assessment Commission (DAC) against Macag Holdings Pty Ltd. The dispute centred on the proposed development by Macag to fill a valley on a piece of vacant land with the intention of creating a flat surface suitable for residential use, without obtaining the necessary approvals under the Development Act. The case was heard in the Environment, Resources and Development Court of South Australia.

The central legal issues before the court involved whether the DAC was estopped from making a second application for leave to serve a summons on Macag, and whether the DAC's actions constituted a breach of the Development Act. The court needed to determine if the DAC's previous refusal to grant leave to serve a summons could prevent them from making a subsequent application and whether such an application could give rise to estoppel.

In delivering the judgment on 11 January 2001, the court found that the DAC was not estopped from making the second application. The court reasoned that the initial proceedings did not result in any findings of fact or final orders being issued, and therefore could not give rise to estoppel. The court also noted that the refusal to grant leave to serve a summons was based on the circumstances of the first case and did not preclude the DAC from making a new application. The findings regarding Macag's intentions to develop the land remained consistent between the two applications, with the only variance being the number of allotments proposed.

The court ultimately concluded that the DAC was not estopped from proceeding with their second application. The DAC was granted leave to serve a summons on Macag to appear before the court and show cause why an order should not be made under the Development Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ WILLIAMS J (dissent) MARTIN J

Once again the DAC served Macag with the application. Once again Macag appeared on the hearing of the application and was granted leave to be heard.The ERD Court judgment The relevant provisions of s 85 of the Act are as follows:“85. (1) Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).(2) Proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained).(3) If proceedings under this section are brought by a person other than a relevant authority, the applicant must serve a copy of the application on the relevant authority within three days after filing the application with the Court.(4) An application may be made ex parte and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.… ” Having considered the affidavits, the Judge made the following findings in his judgment of 11 January 2001: Development Assessment Commission v Macag Holdings Pty Ltd [2001] SAERDC 3:“. Macag was the owner of the land the subject of those proceedings.. The land was vacant and unused..At all relevant times it has been and continues to be the intention of Macag to divide the land into 25-30 allotments suitable for residential use, plus the necessary roads and, perhaps, some form of security wall or fencing and gates..It was the intention of Macag to fill the whole valley – with the exception of a small portion at the northern end (the toe of the fill), it was Macag’s intention that the final level of the fill be such as to create a flat (although not, perhaps a level) surface across the land from both east to west and north to south..The fill is to be both compacted and stabilised in a manner which will render the land suitable for the construction of dwellings..No approval authorizing the filling of the valley had been granted pursuant to the Development Act..The purpose of the fill was to create a land surface suitable for the proposed land division and, thereafter, the creation of allotments upon which, in all probability, dwelling houses will be constructed.” These findings are identical to the findings made on the first application, with one exception. The exception is the third finding. In the first application the relevant finding was that:“At all relevant times it has been and continues to be the intention of Macag to divide the land into four allotments suitable for residential use, plus a road.” The Judge rejected a submission that the DAC was estopped from making the second application. The Judge said:“Having considered the authorities to which counsel referred, I have come to the conclusion that applications for leave to serve a summons do not constitute proceedings the nature of which can give rise to estoppel. No findings of fact are made nor final orders issued. All the Court did, in the first proceedings was to refuse leave to serve. In so saying, I have not overlooked that an order for costs was made against the Commission, but that order was made as a consequence of the circumstances of that case, namely that Macag was given leave to appear and argue the question of leave before the Court.”

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, MARTIN J

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