Eckersley Development Pty Ltd v State Commission Assessment Panel - [2019] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ECKERSLEY DEVELOPMENT PTY LTD v STATE COMMISSION ASSESSMENT PANEL
[2019] SASCFC 6
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
25 January 2019
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - NOTICE AND ADVERTISING - ADVERTISEMENT - GENERALLY
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - COURTS OF RECORD - PARTICULAR COURTS
Appeal against dismissal by Environment Resources and Development Court of an application for review of decision by State Commission Assessment Panel categorising a development the subject of an application by GSA Australia Pty Ltd as Category 1 under and for the purposes of section 38 of the Development Act 1993.
The appellants contended that Principle 40 of the Capital City Zone section of the Adelaide (City) Development Plan is ultra vires section 38 of the Act insofar as it assigns all forms of development, other than development that is non-complying or assigned to Category 2, to Category 1. The Judge rejected that contention.
The Assessment Panel contended that the Environment Court had no jurisdiction to decide the question whether Principle 40 was ultra vires section 38 of the Act. The Judge rejected that contention.
The appellants contend on appeal that the Judge erred in not holding that Principle 40 is ultra vires section 38 of the Act. The Assessment Panel contends by way of alternative contention that the Judge erred in holding that the Court had jurisdiction to decide the substantive question. The appellants seek an extension of time by one day in which to appeal.
Held per Blue J (Vanstone and Parker JJ agreeing):
1. Given that the notice of appeal was filed only one day outside the 21 day period, this was due to a mistake by the appellants’ solicitor and no prejudice to the respondents was occasioned thereby, an extension of time should be granted (at [25]).
2. The Environment Court had jurisdiction to determine the validity of Principle 40 because it was an essential step, albeit the only step, to determining the ultimate question whether the Panel had correctly characterised the application (at [35]).
3. Subsection 38(2) of the Development Act on its proper construction does not dictate that only specified forms of development – as opposed to all forms or all but excepted forms of development – can be assigned to Category 1 or 2. Principle 40 Plan is not on its face ultra vires section 38 of the Act (at [66]).
4. Extension of time to appeal granted. Appeal dismissed (at [69]).
Development Act 1993 (SA) sections 38, 86, 88B, referred to.
North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide 2002] SASC 135 ; North Adelaide Village Shopping Centre Pty Ltd v The Corporation…

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: [2019] SASCFC 6
Decision Date: 25 January 2019

CaseChat Overview and Summary

The parties to this matter were Eckersley Development Pty Ltd and Mr Hribar (the appellants) and the State Commission Assessment Panel (the respondent). The dispute concerned the categorisation of a proposed 34-storey student accommodation building on land in Adelaide. The appellants sought to appeal a decision of the Environment, Resources and Development Court (ERD Court) which held that Principle 40 of the Development Plan was valid and refused their application for review. The appellants had mistakenly lodged their notice of appeal one day outside the prescribed 21-day limit and therefore applied for an extension of time.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the ERD Court had jurisdiction to determine the validity of Principle 40 of the Development Plan, and whether an extension of time should be granted for the appellants to lodge their notice of appeal. The Assessment Panel contended that the ERD Court lacked jurisdiction because the application involved a direct challenge to the validity of the Development Plan, which it argued was solely within the purview of the Supreme Court.

The Court reasoned that the challenge to the validity of Principle 40 was a collateral challenge, not a direct one. It held that the primary question before the ERD Court was the categorisation of the proposed development under section 38 of the Act, and the validity of Principle 40 arose as an incidental or collateral issue in determining that question. Therefore, the ERD Court had jurisdiction to consider the validity of Principle 40. The Court also found that Principle 40 was not on its face ultra vires section 38 of the Act.

The Court ordered that an extension of time by one day for the appellants to lodge their notice of appeal be granted. However, the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellants mistakenly lodged their notice of appeal one day outside the 21 day limit. They apply for an extension of time in which to appeal, which is opposed by GSA on the ground that they have not established that they did not deliberately defer filing the notice of appeal until the last day for the ulterior purpose of obtaining a competitive advantage.Background GSA owns or has an interest in land on the corner of North Terrace and Frome Street Adelaide (the Land). The Land is situated within the Capital City Zone defined by the Development Plan. The Capital City Zone comprises most of the “square mile” bounded by North, East, South and West Terraces, out of which smaller areas are designated as falling within other zones. One of those other zones is the City Living Zone. The only area falling within the City Living Zone north of Wakefield/Grote Streets is an area adjoining East Terrace. Another of those zones is the Adelaide Historic (Conservation) Zone which comprises part of the area between Wakefield Street and South Terrace and between Pulteney Street and East Terrace. Eckersley Developments Pty Ltd owns land at 11-27 Frome Street Adelaide which is adjacent to the Land. Mr Hribar occupies land at 264 North Terrace Adelaide which is adjacent to the Land. In November 2017 GSA applied for development authorisation to demolish the existing structures and construct a 34 storey building comprising student accommodation and ground floor commercial land uses on the Land. In March 2018 the Assessment Panel categorised the proposed development as Category 1. It is common ground that if Principle 40 is valid this decision was correct and if it is invalid this decision was incorrect. In April 2018 the appellants filed their Application for Review in the Environment Court. They contended that the reference in Principle 40 to “all forms of development” being Category 1, other than those excepted, was beyond the power contained in section 38 and accordingly the application fell within residual Category 3 pursuant to section 38. They sought amongst other things an order setting aside the Assessment Panel’s decision and remitting the application for treatment of the proposed development as Category 3. On 25 July 2018 the Judge held that Principle 40 was valid and refused the appellant’s application for review. On 16 August 2018 the appellants filed a notice of appeal to this Court against the order dismissing their application for review. The Assessment Panel filed a notice of contention contending that the Judge’s decision should be upheld on the ground that the Environment Court lacked jurisdiction to determine the application because it involved, impermissibly, a challenge to the legal validity of the Development Plan.The reasons of the Judge The Judge rejected the Assessment Panel’s contention that the Court lacked jurisdiction to decide whether Principle 40 is ultra vires section 38 of the Act. The Judge said:Dr Manetta, counsel for SCAP, argued that the application for review was beyond the jurisdiction of this Court. Dr Manetta argued that the application for review amounts to a direct challenge to the validity of PDC 40, and that only the Supreme Court has jurisdiction to hear and decide a direct challenge to the validity of a provision of the Development Plan.Dr Manetta submitted that, had the issue of the validity of PDC 40 arisen as a collateral challenge, then, consistent with the decision of the Full Court of the Supreme Court in Zweck v Town of Gawler, it would have been incumbent upon the ERD Court to hear and decide that collateral challenge. However, Dr Manetta said, the question of the validity of PDC 40 does not arise by way of collateral challenge, but by way of direct challenge, because it is the only issue to be decided between the parties. It is the primary issue before the Court, rather than being incidental, or collateral, to the determination of another issue over which the Court undoubtedly has jurisdiction. …In determining the question of whether this matter involves a challenge to the validity of PDC 40, and, if so, whether that challenge is a direct challenge or a collateral challenge, it is necessary to reflect upon the issues which may arise in an action under s 86(1)(f) of the Act. The determination of an application under s 86(1)(f) of the Act for the review of the decision of the relevant authority in relation to the characterisation of a proposed development under s 38 of the Act generally involves consideration of the following issues:·whether the applicant for review has demonstrated the requisite interest to bring the application for review;·as a matter of fact, what is the development for which approval is sought by the application…;·once the form of the development has been ascertained, the proposed development must be compared with the land uses assigned to Categories 1, 2 and 2A by Schedule 9 of the Regulations. This process may involve, for example, consideration of:othe definition of numerous “forms of development” in Schedule 1 of the Regulations;ocase law in which the characterisation of relevant forms of development has been discussed;othe definition of “development” and its components in the Act;oother schedules of the Regulations which list, for example, development which does not require consent, additional acts and activities which constitute development and acts and activities which are not development for the purposes of the Act;oif Schedule 9, clause 2(g) is relevant, an assessment will need to be made as to whether the proposed development “is of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development”;·the relevant provisions of the Development Plan must be examined to ascertain whether the “form of the development” for which approval is sought has been assigned to a category by one of those provisions.Having regard to all of the issues which fall to be considered by the Court when dealing with an application under s 86(1)(f), I reject Dr Manetta’s submission that the action brought by Eckersley Development and Mr Hribar is in reality no more than a direct challenge to the validity of PDC 40. It is true that, if PDC 40 were invalid, then, if Eckersley Development and Mr Hribar have standing, and if Schedule 9 has no application, and if there is no other applicable provision in the Development Plan, that invalidity will dictate the outcome of the categorisation exercise under s 38 of the Act. However, that does not make this action a direct challenge. The issue as to the validity of PDC 40 is a collateral challenge in the context of this action under s 86(1)(f) of the Act, where the overarching question to be decided by the Court is “what is the categorisation of the development proposed by application 02/A074/17 for public notification purposes under the Development Act 1993?”Had this matter constituted nothing more than a direct challenge to the validity of PDC 40, then this Court would not have had jurisdiction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Principal 40 of the Development Plan is not on its face ultra vires section 38 of the Act. The Judge was correct to so hold.Conclusion An extension of time by one day for the appellants to appeal should be granted. The appeal should be dismissed. PARKER J: I agree with the reasons of Blue J. I would grant an extension of time but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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