Hall & Hall v City of Burnside & Ors (No 4) - [2007] SASC 460

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HALL & HALL v CITY OF BURNSIDE & ORS (No 4)
[2007] SASC 460
Judgment of The Honourable Justice Bleby
21 December 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS
SUMMARY DISMISSAL
Development approval previously declared valid in earlier proceedings - judicial review of development approval on other grounds - application out of time and extension of time refused - whether alternative remedy of declaration and injunction available - abuse of process - effect of earlier declaration - variations to development approval - alleged invalidity - various grounds - whether inter-partes summons should be amended to allow plea of invalidity - delay in application - alleged non-compliance with development approval - whether evidence of non-compliance - whether want of prosecution of action - permission to amend refused - action dismissed.
Development Act 1993 (SA) s 32, s 39, s 84, s 85; Supreme Court Rules 1987 (SA) r 98, referred to.
Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440; O'Reilly v Mackman [1983] 2 AC 237; The Lindsay Petroleum Company v Hurd & Ors (1874) LR 5 PC 221, applied.
Corporation of the City of Enfield v Development Assessment Commission (2006) 199 CLR 135, discussed.
City Apartments Pty Ltd v City of Burnside & Hall [2004] SAERDC 94; City of Burnside & Ors v City Apartments Pty Ltd (2004) 236 LSJS 47; Hall v City of Burnside & Anor (2005) 91 SASR 532; Hall & Anor v City of Burnside & City Apartments Pty Ltd (2005) 92 SASRS 79; Hall & Ors v City of Burnside & Ors [2006] SASC 86; Hall & Ors v City of Burnside & Ors (No 3) [2007] SASC 3; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256; Ulowski v Miller [1968] SASR 277, considered.

HALL & HALL v CITY OF BURNSIDE & ORS (No 4)
[2007] SASC 460
Civil
BLEBY J.
Introduction

This action for judicial review and other relief was commenced on 31 January 2006. Among other things, the plaintiffs challenged the validity of a development approval under the Development Act1993 (SA) issued by the first defendant, the City of Burnside, in favour of the second defendant, City Apartments Pty Ltd (“City Apartments”). The third defendant, Katnich Dodd, is the building certifier which granted provisional Building Rules consent as part of the development approval.
Each of the three defendants now applies for an order dismissing the plaintiffs’ claim on the grounds:
1.That there is no reasonable prospect that the court would make an order in the action under rule 98.4A in the nature of judicial review;
2. For want of prosecution; and
3. That the action constitutes an abuse of process.
Incidental costs orders are sought. At the same time the plaintiffs apply for leave to amend the inter-partes summons in the manner described.
Events preceding the action
Provisional Development Plan consent in respect of the development was first granted by the Environment Resources & Development Court on 20 January 2004.[1] Mr and Mrs Hall and the City of Burnside appealed to the Full Court of this Court against that decision. On 22 September 2004 the Full Court dismissed those appeals.[2] Mr and Mrs Hall applied for special leave to appeal to the High Court. Leave to appeal was refused on 11 August 2005.
[1] City Apartments Pty Ltd v City of Burnside & Hall [2004] SAERDC 94.
[2] City of Burnside & Ors v City Apartments Pty Ltd (2004) 236 LSJS 47, [2004] SASC 294.
In the meantime, provisional Building Rules consent for the development was granted by Katnich Dodd on 4 March 2005, and the City of Burnside granted final development approval on 21 March 2005.
On 5 May 2005 Mr and Mrs Hall commenced proceedings for judicial review in this Court[3] challenging the validity of the final development approval by the City of Burnside. A single judge of this Court granted the relief they sought by order dated 27 May 2005 and subsequently varied on 21 June 2005.[4] City Apartments successfully appealed to the Full Court which, on 9 September 2005, ordered that there be substituted for the trial Judge’s order a declaration that the development approval issued to City Apartments on 21 March 2005 was valid and dismissed the application of Mr and Mrs Hall.[5]
[3]    Action No 494 of 2005.
[4]    Hall v City of Burnside & Anor (2005) 91 SASR 532, [2005] SASC 199.
[5]    Hall & Anor v City of Burnside & City Apartments Pty Ltd (2005) 92 SASR 579, [2005] SASC 343.
On 23 January 2006 Katnich Dodd certified a variation to the provisional Building Rules consent, following an application by City Apartments. The variation was described as “Variation to PC 26259 retaining wall details and footing layout plans”. It was incorporated in an amended development approval of the City of Burnside dated 16 February 2006.
A further challenge to the development approval
The next challenge to the development approval by the City of Burnside was the commencement of this action on 31 January 2006. The action was commenced by Mr and Mrs Hall and Dr Stephen Halcrow. It should be mentioned at this stage that the subject land rises steeply from west to east in the Hills Face Zone immediately above Glen Osmond. Mr and Mrs Hall are the owners of certain land to the east of the land owned by City Apartments and above the level of the subject land. Dr Halcrow owned land to immediately west of the subject land and directly below it.
The relief sought by the plaintiffs in the inter-partes summons is as follows:
1.A declaration that the Development Approval issued by the City of Burnside to City Apartments in respect of DA180/0455/02/C3 is invalid.
2.An order in the nature of certiorari to quash the Development Approval issued by the City of Burnside in relation to DA180/0455/02/C3 for a detached dwelling and detached garage and associated excavation works on the land at 9-13 Government Road Glen Osmond.
3.A declaration that the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3 is invalid.
4.An order in the nature of certiorari to quash the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3.
5.An injunction restraining City Apartments, its employees, agents or contractors from proceeding directly or indirectly with the development the subject of the development approval in respect of DA180/0455/02/C3.
The approval referred to is that issued by the City of Burnside on 21 March 2005, being the same approval as the Full Court had declared to be a valid approval.
Rule 98.06 of the Supreme Court Rules 1987 provides that subject to any order of the court granting an extension of time, a summons for judicial review must be issued within six months from the date when the grounds for the review first arose, and “shall in all cases be made as promptly as possible”. The proceedings were commenced more than six months after the City of Burnside issued the development approval.
On 20 February 2006 the plaintiffs applied for an extension of time within which to apply for leave to serve the summons for judicial review, leave to serve being required by rule 98.03. On 2 March 2006 I made an order extending the time for the plaintiffs to issue the proceedings,[6] subject however to Mr and Mrs Hall making an application pursuant to rule 84.12 of the Supreme Court Rules in Action No 494 of 2005 to vary the order of the Full Court made on 9 September 2005. Such an application was made, but no steps have been taken to have it listed before or determined by the Full Court.
[6] See Hall & Ors v City of Burnside & Ors [2006] SASC 86.
On 13 April 2006 I also granted an interim injunction restraining City Apartments from proceeding with the development.
City Apartments appealed against my order extending the time. On 12 September 2006 the Full Court, by majority, allowed that appeal,[7] and set aside the order extending the time within which the plaintiffs could commence the proceedings. It ordered that the application for an extension of time be dismissed.
[7] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, [2006] SASC 283.
On 10 October 2006 the plaintiffs filed an application for special leave to appeal to the High Court against the decision and order of the Full Court made on 12 September. On 10 November 2006, pending the hearing of the application for special leave in the High Court, the plaintiffs, having been effectively denied any remedy by way of judicial review, applied for leave to amend the inter-partes summons in the action to plead an action in nuisance, as well as seeking declarations and injunctions in the Court’s general jurisdiction.
The interim injunction had been extended from time to time without opposition from City Apartments while certain negotiations took place between the parties and their engineers. Any further extension was opposed by City Apartments at a hearing on 22 December 2006, the plaintiffs then seeking an interlocutory injunction pending determination of the principal action. The plaintiffs’ application for leave to amend was listed at the same time, but the plaintiffs did not seek to pursue the amendment at that stage.
In the meantime, on 15 December 2006, City Apartments obtained a further amendment to its Building Rules consent for a revised design of a retaining wall to be constructed at the toe of an embankment on the subject land.
On 15 January 2007 I made an order that the interim injunction granted on 13 April 2006 be revoked and that the plaintiffs’ application for an interlocutory injunction be dismissed.[8] Since then, construction of the dwelling on the subject land in accordance with the development approval granted by the City of Burnside has proceeded.
[8] Hall & Ors v City of Burnside & Ors (No 3) [2007] SASC 3.
The plaintiffs’ notice of appeal and summary of argument were due to be filed, in accordance with the procedures required in the High Court, on 7 November 2006. Mr and Mrs Hall sought and obtained an extension of time within which to file those documents to 28 November 2006. However, the documents were not filed until 4 December 2006. In the meantime, the plaintiffs were opposing any further progression of this action until the special leave application in the High Court had been disposed of.
Over the months that followed various directions hearings were adjourned either for the plaintiffs to consider an application for discovery or for other reasons associated with an attempted mediation of these and other proceedings.
On 28 June 2007 Dr Halcrow filed a notice of discontinuance by him of the proceedings against the City of Burnside and City Apartments. As a result, the plaintiffs’ then solicitors and counsel were unable to continue to act for Mr and Mrs Hall. There was delay while they sought to instruct new solicitors and counsel. On 3 August 2007 Dr Halcrow filed a notice of discontinuance by him of the proceedings against Katnich Dodd. He is therefore no longer a party to the action.
Mr and Mrs Hall’s application for special leave to appeal to the High Court came on for hearing on 8 August 2007. They applied for an adjournment of that hearing. The adjournment was refused and the application for special leave was dismissed on the following day.
On 1 August 2007 the solicitors for City Apartments gave notice to Mr and Mrs Hall, who were then without solicitors in these proceedings, that at a directions hearing to be held on 24 August 2007 City Apartments would seek the orders for which they now apply. The application was in fact filed on 3 August 2007. It was followed by identical applications filed by the City of Burnside on 21 September 2007 and by Katnich Dodd on 8 October 2007.
The original application by Mr and Mrs Hall to amend the inter-partes summons filed on 10 November 2006 was never proceeded with. Instead, Mr and Mrs Hall, by affidavit filed on 21 September 2007, sought leave to amend the inter-partes summons in the manner set forth below.
The plaintiffs’ proposed amendments
The amendments now sought by the plaintiffs make no change to paragraphs 1, 2 and 4 of the relief claimed as set forth above. Paragraph 3 is sought to be amended to read as follows:
3.A declaration that the Provisional Building Rules Consent issued by Katnich Dodd including purported amendments and in so far as such consent was amended by Carlo Scinto and Associates such amended consent in respect of DX180/0455/02/C3 is invalid.
Paragraph 5 is sought to be amended to read as follows:
5.An injunction restraining city Apartments, its employees, agents or contractors from proceeding directly or indirectly with the development the subject of the development approval in respect of DA 180/0455/02/C3 inter alia on the ground that the development approval is invalid and on the further and alternative ground that the construction and implementation of the development constitutes an actionable nuisance.
Three new paragraphs are sought to be added as follows:
6.In the alternative to orders 1 – 5, a declaration that the embankment constructed on the land is not approved development and has not been constructed in conformity with the purported Provisional Building Rules Consent issued by Katnich Dodd and in so far as such consent was amended by Carlo Scinto and Associates such amended consent or the Development Approval in respect of DA 180/0455/02/C3 inter alia on the grounds that inadequate drainage was provided, the site was not adequately benched, the embankment was not adequately compacted and the gradient of the finished surface exceeds that which was approved.
7.An order in the nature of an injunction requiring City Apartments to remove the embankment and reinstating the land to its condition prior to the construction of the embankment and associated excavation inter alia on the ground that the construction of the embankment was unlawful development and on the further alternative ground that the construction of the embankment and its continued presence on the land constitutes an actionable nuisance.
8.An injunction restraining City Apartments Pty Ltd, its employees, agents or contractors proceeding directly or indirectly with any development unless such development is approved other than by development approval in respect of DA 180/0455/02/C3.
The proposed amendment to paragraph 3 attacks the validity of the amendment to the development approval as well as the validity of the original approval.
The proposed amendment to paragraph 5 to include the words “on the ground that the development approval is invalid” adds nothing to the original prayer for relief contained in paragraphs 1 and 3.
The effect of the amendments, if granted, is to maintain the claims for relief based on the alleged invalidity of both the original development approval and the development approval as now amended, and to seek removal of the embankment and reinstatement of the land on the ground that the embankment is not constructed in conformity with the development approval, if valid, and on the further ground that the embankment constitutes an actionable nuisance.
The claim for a declaration and injunction based on invalidity of the development approval
For the purposes of considering whether the plaintiffs’ claims based on invalidity of the development approval should be dismissed, I refer to the paragraphs of the prayer for relief as they currently stand. In due course it will be necessary to consider the effect of the plaintiffs’ proposed amendments.
The plaintiffs have been denied an extension of time in which to commence proceedings for judicial review.[9] The plaintiffs therefore cannot succeed on paragraphs 2 and 4 of the prayer for relief. The question is whether the plaintiffs can have recourse to the equitable jurisdiction of the Court in order to achieve the same result by way of the declarations claimed in paragraphs 1 and 3 of the prayer for relief and the injunction claimed in paragraph 5.
[9] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, [2006] SASC 283.
The remedy of declaration and injunction is available as an alternative to judicial review. Rule 98.01(3) of the Supreme Court Rules 1987, which are the rules applicable in this case, prescribes the circumstances in which it may be appropriate to proceed by way of declaration and injunction:
Declarations and injunction may be sought and granted on summons for judicial review
(3)Declarations or injunctions may be sought in a summons for judicial review, and on such a summons the Court may grant the declaration or injunction claimed in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having regard to:
(a)     the nature of the matter in respect of which relief may be granted by way of an order having the effect of an order for mandamus, prohibition, certiorari or quo warranto;
(b)     the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c)     all the circumstances of the case;
it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review.
The use of private law remedies as an alternative emerged because of the technicalities and artificial distinctions which historically existed in relation to the prerogative writs. This was explained by the High Court in Corporation of the City of Enfield v Development Assessment Commission.[10] That was a case where the plaintiff sought a declaration, as in this case, that a purported development approval was invalid and a consequential injunction, and where the Court’s equitable jurisdiction alone was invoked. The plaintiff’s ability to do so was never challenged, and no question of time limitation arose. However, in their joint judgment Gleeson CJ, Gummow, Kirby and Hayne JJ concluded their observations with a timely reminder:
[I]n administrative law, as elsewhere, the grant of injunctive and declaratory relief is attended by discretionary considerations. As Menzies J put it in Cooney,[11] “[t]he wide discretion of the Court is an adequate safeguard against abuse of a salutary procedure”.[12]
[10] (2000) 199 CLR 135 at 143-146, [2000] HCA 5 at [16]-[27], Gleeson CJ, Gummow, Kirby and Hayne JJ. See also Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257-258, [1998] HCA 49 at [26], Gaudron, Gummow and Kirby JJ; and O’Reilly v Mackman [1983] 2 AC 237 at 276-284, Lord Diplock.
[11] Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605.
[12] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 146, [2000] HCA 5 at [23].
The grant of equitable relief is not constrained by specified time limits such as are contained in r 98.06 of the Supreme Court Rules. However, the remedies may be refused where delay would make it unjust to grant the relief sought. The principles are relevantly summarised by the judgment of the Privy Council in The Lindsay Petroleum Company v Hurd & Ors:[13]
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.
[13] (1874) LR 5 PC 221 at 239-240.

Although there is no specific time limit for commencing proceedings for equitable relief, where the remedy is by way of alternative to judicial review, it is necessary also to understand the reasons why time limits apply to proceedings for judicial review. Those reasons were adequately summarised by Doyle CJ in Hall & Ors v City of Burnside & Ors:[14]
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
[14] (2006) 245 LSJS 440 at 445, [2006] SASC 283 at [49].
Those reasons are equally relevant to review proceedings calling in question the validity of an administrative act, whether by way of judicial review or by way of declaration and injunction. It would defeat the purpose of the limitation if, merely by choosing a different available remedy, the time limitation on judicial review could be circumvented.
In Hall & Ors v City of Burnside & Ors[15] the Chief Justice adverted to the effect of the limitation on the claim for equitable relief. He said:
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.
It was not necessary to decide the issue on the hearing of that appeal. The question arises directly on these applications.
[15] Ibid, 446, [58].
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.
In O’Reilly v Mackman[16] Lord Diplock, besides explaining the reasons for the alternative procedures to judicial review, pointed out that many of the previous disadvantages of an application for judicial review under RSC Order 53 had been eliminated in much the same way as has happened in this jurisdiction in respect of r 98. He noted that Order 53 was a speedy means of determining whether a disputed decision was valid in law or not and the need, under the rule, to make an application within six months or, after 1977, within three months, “unless delay beyond that limited period was accounted for to the satisfaction of the Judge”.[17] That was for the protection of the decision-making authority and for the certainty of administrative decision-making. His Lordship then said:[18]
Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.
My Lords, I have described this as general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.
[16] [1983] 2 AC 237.
[17] Ibid, 281.
[18] Ibid, 285.
Lord Denning MR, in the Court of Appeal, had said in his usual forthright manner:[19]
Where a good and appropriate remedy is given by the procedure of the court—with safeguards against abuse—it is an abuse for a person to go by another procedure—so as to avoid the safeguards.
[19] Ibid, 254.
In this case I can see no room for the operation of any exception to the general rule stated by Lord Diplock. 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.
However, even without the decision of the Full Court refusing the extension of time, I consider that the reasons given by the Full Court for refusing to extend the time to commence proceedings under r 98 are equally applicable to the exercise of the Court’s discretion to refuse, on grounds of laches, this public law remedy in the circumstances of this case insofar as it is based on equitable relief. As Lord Diplock also pointed out in O’Reilly v Mackman[20] there is no reason to leave the exercise of the discretion to the conclusion of the trial. Unless such an action can be struck out summarily at the outset as an abuse of the process of the Court, the whole purpose of the public policy behind the present r 98 would be defeated.
[20] Ibid, 284.
I also accept the submission of the second defendant that the proceedings as presently formulated to seek to assert the invalidity of the development approval which is necessarily contrary to the previous declaration of validity of the same development approval by the Full Court in Hall & Anor v City of Burnside & City Apartments Pty Ltd.[21] While an application to vary that order was made as a condition of the plaintiffs being granted leave to serve the judicial review proceedings in this action, little or no interest seems to have been shown in progressing that application. The order of the Full Court in the earlier proceedings remains a barrier to any relief, declaratory or otherwise, which the plaintiffs might seek by way of challenge to the validity of the development approval.[22]
[21] (2005) 92 SASR 579, [2005] SASC 343.
[22] See R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256, Wilcox J at 264.
Accordingly, the defendants must succeed in their application to dismiss the plaintiff’s claim as presently pleaded. It is necessary, then, to consider whether the plaintiffs’ position can be restored by the amendments proposed.
The plaintiff’s proposed amendments – actionable nuisance (proposed amended paragraphs 5 and 7)
Mr Swan, counsel for the plaintiffs, did not press this amendment at the hearing.
The plaintiffs’ proposed amendments – validity of amendments to the development approval
The original Development Act approval granted on 21 March 2005 described the nature of the development as “Detached dwelling, detached garage and associated excavation works”. The attached plans showed excavation and filling of the embankment and a one metre high retaining wall at the base or toe of the embankment.
The provisional Building Rules consent on which the approval was based related only to the dwelling, garage and verandah. It did not relate to any part of the embankment or retaining wall.
The plaintiffs’ attack on the validity of the development approval was based on the fact that the Building Rules certification by Katnich Dodd did not include any detailed assessment of the stability of the embankment. However, for reasons set forth above, those defects, if they were such, cannot now be challenged.
The first variation to the development approval was that given on 16 February 2006 by the City of Burnside following the first variation to the provisional Building Rules consent given by Katnich Dodd on 23 January 2006. Mrs Hall became aware of that variation when she searched the file on 28 March 2006. The first indication of any challenge to the validity of that variation is contained in the affidavit filed on 21 September 2007 seeking leave to amend the inter-partes summons in the manner now sought by the plaintiffs.
Section 39 of the Development Act makes provision for variation of a development approval. So far as is relevant the section provides:
(6)Subject to this section, a person may seek the variation of a development authorisation previously given under this Act (including by seeking the variation of a condition imposed with respect to the development authorisation).
(7)     An application to which subsection (6) applies—
(a)     may only be made if the relevant authorisation is still operative; and
(b)     will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation (and not so as to provide for the consideration of other elements or aspects of the development or the authorisation), be treated as a new application for development authorisation; and
(c)     in a case where the development to which the development authorisation previously given was Category 3 development—must also be dealt with under section 38 as an application for Category 3 development if any representations were made under subsection (7) of that section, unless the relevant authority determines that no such representation related to any aspect of the development that is now under consideration on account of the application for variation and that, in the circumstances of the case, it is unnecessary to deal with the matter as Category 3 development; and
(d)     unless otherwise approved by the relevant authority, cannot seek to extend the period for which the relevant authorisation remains operative.
(7a)In addition, the variation of a development authorisation on application under subsection (6)—
(a)     cannot have effect so as to impose a new condition, or to vary an existing condition, with respect to a matter that does not fall within the ambit of the application for variation; and
(b)     cannot affect the operation of a condition imposed with respect to the original authorisation unless the relevant authority has made specific provision for the variation of the condition in its decision on the application for variation.
This was a Category 3 development, so subsection (7)(c) applied. No question has been raised as to the procedures adopted on the variation. In circumstances where, as mentioned above, the action is replete with affidavits raising grounds of alleged invalidity, the Court is entitled to presume that, absent evidence to the contrary, the statutory functions have been duly performed and the required procedures duly observed.[23]
[23] Omnia praesumuntur rite esse acta. For illustrations of the rule see Cross on Evidence, 7^th Australian Edition, [1175].
One attack on the validity of the amendment is based on the invalidity of the approval which it amends, on the footing that an invalid approval which has never had any lawful effect cannot be cured by a later amendment because there was nothing in law to amend. As the challenge to the validity of the original development approval must fail and the approval must be regarded as valid, this argument must also fail.
It is also argued that the variation constitutes such a departure from the original development approval as to require a fresh application for development approval and a revisitation of the provisional Development Plan consent. I disagree. It was no more than a variation to retaining wall details and footing layout plans which had not been fully dealt with at the provisional Development Plan consent stage and which had not been the subject of consideration at the time of the provisional Building Rules consent. It was a necessary step in the detailed working out of the original development approval.
Even if I am wrong in that, the proposed amendments to the prayer for relief suffer from the same defect as the challenge to the validity of the original development approval. They are far too late, coming more than 18 months after the decision complained of.
The second variation was a further variation to the development approval granted on 15 December 2006, based on a further variation to the provisional Building Rules consent certified by Carlo Scinto & Associates Pty Ltd on 8 December 2006, relating to an upgrade of the retaining wall design. The challenge to the validity of this variation must be rejected for the same reasons as I have just given in relation to the first variation, save that the delay in seeking to challenge the validity of this variation is approximately nine months.
The plaintiffs’ proposed amendments – non-compliance with the development approval
In relation to the proposed new amended paragraph 6 of the relief claimed, there is evidence which suggests that the embankment may not have been constructed in accordance with the original provisional Building Rules consent. The validity of that consent and of the development approval on which it is based cannot now be challenged. As a valid approval, there is nothing to prevent its variation by lawful means.
The variations which have been made accommodate engineering advice with respect to the stability of the embankment and the design of the retaining wall when certain potential problems were identified in conferences of engineers and legal advisers of the plaintiffs and City Apartments. Agreement was reached that, with appropriate engineering works, stability and compliance with required building standards could be achieved, notwithstanding that the most desirable method of securing stability by means of benching the embankment may not have been implemented. The variations were designed to give effect to those alternative measures.
There is no evidence to suggest that either the embankment has not been constructed in accordance with the amended consent or that works required by the amended consent to ensure the stability of the embankment have not been carried out. Once again, the plaintiffs have had the opportunity to file affidavits in support of this aspect of their claim, but the evidence is wanting.
Even if there were evidence of non-compliance, that would constitute a breach of s 32 of the Development Act for which remedies are provided in ss 84 and 85 of the Act. Generally speaking, those remedies are more flexible than can be provided by this Court and a question would arise as to whether these proceedings should be stayed pending an appropriate application to the Environment Resources and Development Court. However, it is not necessary to consider that question.
The claim for declaration and injunction based on alleged non-compliance with the development approval must also be dismissed.
Conclusion
The proposed amended paragraphs 7 and 8 of the relief claimed are consequential on the establishment of an entitlement to the relief claimed by the plaintiffs in the earlier paragraphs. For the reasons I have given the plaintiffs’ action must be dismissed because the claim for judicial review is unable to proceed, and the alternative claim for equitable relief constitutes an abuse of the process of the Court. The claims based on nuisance and on non-compliance with the development approval must also be dismissed as having no prospect of success.
Want of prosecution
The defendants’ application seeks the dismissal of the whole action for want of prosecution. While it is almost two years since the action was commenced, its progress has been delayed substantially by the plaintiffs and the second defendant exercising various rights of appeal on interlocutory matters, on the negotiations for possible settlement of the action and by reason of inevitable delays caused by the plaintiffs’ original solicitors and counsel being unable to act upon Dr Halcrow discontinuing the proceedings. Those delays, while undesirable, are insufficient in themselves to justify striking out the action for want of prosecution.[24]
[24] See generally Ulowski v Miller [1968] SASR 277.
However, there is no satisfactory explanation for the delay in bringing or pressing the plaintiffs’ application for permission to amend the inter-partes summons. The plaintiffs failed to press the application made on 10 November 2006 for leave to amend the summons to plead an action in nuisance. They did not renew that application until 21 September 2007 and then abandoned the application at the hearing. They had the opportunity to argue that application on 22 December 2006 but did not do so. At that time, the plaintiffs were also aware of the amended development approval with which they seek to allege that City Apartments has not complied. No reasonable explanation for the delay in pressing these applications has been given, particularly in the light of my refusal, on 15 January 2007, to grant an interlocutory injunction, and in the knowledge that since then construction works have resumed on the site. Any remedy based on alleged nuisance, if it was to be pressed, and alleged non-compliance with the development approval was, in those circumstances, required to be taken expeditiously, particularly where the plaintiffs are seeking consequential relief by the removal of the construction and the restoration of land to its original condition.
Had it been necessary to do so, I would also have refused the plaintiffs’ application for permission to amend on this ground also.
It follows that the defendants’ applications must be granted and that all claims by the plaintiffs for relief contained in the inter-partes summons must be dismissed.