Hall v City of Burnside - [2006] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application)
HALL & ORS v CITY OF BURNSIDE & ORS
Reasons for Decision of The Honourable Justice Bleby
24 March 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
Application for leave to serve inter partes summons – Claim for judicial review of decision of building certifier to grant provisional Building Rules consent and decision of planning authority to grant development approval to second defendant – Also claim for declaration that provisional Building Rules consent and development approval is invalid and injunction to restrain developer from proceeding with development – Development approval previously declared valid by Full Court in earlier proceedings – Challenge to validity of development approval on different grounds – Whether conditional leave to serve should be granted – Whether to grant extension of time prescribed by Rule 98 for issue of inter partes summons – Effect of claim for declaratory and injunctive relief – Consideration of prejudice to defendants – Extension of time granted – Leave to serve proceedings granted subject to plaintiffs making application pursuant to Rule 84.12 to vary earlier order of Full Court.
Development Act 1993 (SA) s 40(2), s 84, s 86(1)(a); Development Regulations 1993 (SA) reg 48; Supreme Court Rules 1987 (SA) r 84.12, r 98, referred to.
Clayton v Ralphs & Manos (1987) 45 SASR 347; Xenophon v State of South Australia & Ors (2000) 78 SASR 251, distinguished.
City Apartments Pty Ltd v City of Burnside & Hall [2003] SAERDC 94; City of Burnside v City Apartments Pty Ltd (2004) 363 LSJS 47; City Apartments Pty Ltd v Hall (2001) 80 SASR 319; Hall v City of Burnside (2005) 91 SASR 532; Hall v City of Burnside (2005) 92 SASR 579; McKay v Alexandrina Council (2003) 227 LSJS 442, considered.

HALL & ORS v CITY OF BURNSIDE & ORS
[2006] SASC 86

BLEBY J: On 2 March 2006 I extended the time within which the plaintiffs could commence these proceedings and I granted conditional leave to serve the proceedings. I indicated that I would publish reasons later. These are those reasons.
The proceedings seek judicial review of the decision of a building certifier, Katnich Dodd, to grant provisional Building Rules consent and of the City of Burnside (“the Council”) to grant final development approval in respect of a proposed development at Glen Osmond. The applicant for development consent is City Apartments Pty Ltd (“City Apartments”). The summons, besides seeking orders in the nature of certiorari to quash those respective decisions also seeks declarations that the provisional Building Rules consent and development approval are invalid and an injunction restraining City Apartments from proceeding directly or indirectly with the development the subject of the development approval.
The plaintiffs Mr & Mrs Hall had a right to be heard and were heard in opposition to the application of City Apartments for development approval. They clearly have standing to bring the present application. The plaintiff Dr Halcrow has a different interest. He owns a house in which he resides immediately west of and downhill from the proposed development. He has a fear that what is said to be an already unstable embankment on City Apartments’ land will collapse and cause damage to his property and risk of injury to himself and his family if the development proceeds.
The proposed development has a long history in this Court, the Environment, Resources and Development Court and the High Court going back to April 2000. In respect of the current development application, provisional Development Plan consent was first granted by the Environment, Resources and Development Court on 20 January 2004.[1] Mr & Mrs Hall and the Council appealed to the Full Court of this Court. On 22 September 2004 the Full Court dismissed the appeals.[2] Mr & Mrs Hall applied for special leave to appeal to the High Court, which application was dismissed on 11 August 2005.
[1] City Apartments Pty Ltd v City of Burnside and Hall [2003] SAERDC 94.
[2] City of Burnside v City Apartments Pty Ltd (2004) 363 LSJS 47; [2004] SASC 294.
Provisional Building Rules consent was granted on 4 March 2005, and the Council granted final development approval on 21 March 2005. That final development approval was, at the instance of Mr & Mrs Hall, the subject of judicial review proceedings before a single Judge of this Court[3] and on appeal by City Apartments to the Full Court.[4] On 9 September 2005 the Full Court declared that the development approval was valid. It is the same development approval which the plaintiffs, in these proceedings, seek to have declared invalid and quashed.
[3] Hall v City of Burnside (2005) 91 SASR 532; [2005] SASC 199.
[4] Hall v City of Burnside (2005) 92 SASR 579; [2005] SASC 343.
The ultimately unsuccessful challenge to the validity of the development approval in the previous judicial review proceedings was on grounds quite different from those now raised by the plaintiffs. Nevertheless, there remains a judgment in rem of the Full Court of this Court declaring the development approval to be valid. That is one existing barrier to this application.
Another barrier raised by the defendant is that the application for judicial review is out of time. Rule 98.06 of the Supreme Court Rules provides:
Subject to any enactment, or order of the Court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.
The six month limit in respect of provisional Building Rules consent therefore expired on 4 September 2005, and that relating to the final development approval expired on 21 September 2005.
The plaintiffs seek an extension of time in which to issue the summons, the inter partes summons not having been issued until 31 January 2006.
It must be mentioned that there was an earlier application for development approval for a similar development on the same site to the Development Assessment Commission in 2000. Planning consent was granted, but was ultimately declared invalid by a single Judge and by the Full Court of this Court in other proceedings[5] on the ground that the Development Assessment Commission was not the proper planning authority.
[5] City Apartments Pty Ltd v Hall (2001) 80 SASR 319; [2001] SASC 337.
The land in question is very steep. Before the first development approval was declared invalid, a substantial excavation was carried out on the land by City Apartments, the product of the excavation being dumped on the down side of the excavation to form an embankment which, according to the building plans, was to support portion of the house intended to be built on the site. Apart from some other relatively minor preparation works, the only other activity on the land has been the partial construction of a retaining wall near the base of the overburden from the excavation. The retaining wall is not relevant for present purposes, save to note that its completion has also been the subject of injunction in this Court, and further development activity on the land has been prevented by an order of the Council, the reason for which is not presently apparent to the Court.
An arguable case?
The original provisional Development Plan consent granted by the Environment, Resources and Development Court was for “the construction of a detached dwelling, detached garage, roadworks, earthworks, retaining walls and landscaping” the subject of City Apartments’ development application. It was subject to a number of conditions relating to landscaping, tree removal and certification of bench and driveway levels.
The decision notification of provisional Building Rules consent described the nature of the proposed development as “dwelling, garage and verandah”. On the plaintiffs’ case it was only that which received provisional Building Rules consent from Katnich Dodd. The final development approval issued by the Council described the nature of the development as “detached dwelling, detached garage and associated excavation works”. So far as the plaintiffs are able to ascertain from the documents supplied to them and exhibited to various affidavits, no provisional Building Rules consent has been given in respect of the excavation and the embankment. The plaintiffs complain that the excavation, and particularly the embankment, does not comply with the relevant Building Rules and is unstable because it contains no benching. Because the excavation and filling have never been the subject of provisional Building Rules consent, either or both of the provisional Building Rules consent and the final development approval are invalid. Furthermore, the plaintiffs have obtained the opinion of an engineer that the present embankment is unstable and forms an inadequate base for the construction of the house and garage.
On the information presented so far the plaintiffs would appear to have at least an arguable case concerning the validity or lack of provisional Building Rules consent and development approval, although they concede that the picture will be revealed with greater clarity when proper discovery and inspection of documents is given. However, the grant of leave to serve is complicated by the existence of the Full Court declaration of validity and the fact that the inter partes summons has been issued more than six months after the notification of the decisions the subject of challenge.
The existing Full Court order
The order of the trial Judge the subject of the previous judicial review proceedings was that the development approval issued by the Council in respect of development application 180/0455/02/C3 dated 21 March 2005 be declared invalid. The development approval was quashed. The order on appeal set those orders aside and substituted an order that:
The development approval issued by (the Council) to (City Apartments) on 21 March 2005 in respect of Development Application 180/0455/02/C3, is valid.
Whether that order went further than was necessary to resolve the issue then before the Full Court is not for me to determine. However, in its present form it presents a barrier to the relief that the plaintiff seeks in the present proceedings. It has the effect of a judgment in rem in respect of the development approval granted by the Council. If the plaintiffs in these proceedings are to have any prospect of succeeding in their application they will need to have that order set aside or modified in some way, as their present application, in effect, seeks a declaration, although on different grounds, that the development approval is invalid and an order that it be set aside.
Rule 84.12 of the Supreme Court Rules provides that the court may vary or set aside a judgment or order at any time “if the justice of the case so requires”. It would be a matter for the Full Court to decide whether that rule should be applied to the order it made on 9 September 2005. However, modification of that order would be a necessary prerequisite to the granting of any relief that the plaintiffs now seek. I could therefore not grant leave to serve unless Mr & Mrs Hall, who were also the plaintiffs in the previous proceedings, made application pursuant to r 84.12 in the previous proceedings to vary the order of the Full Court. If there were no other barriers to leave to serve I considered that it would be appropriate to grant leave to serve the proceedings subject to the first and second plaintiffs making such an application to the Full Court.
Delay and the extension of time
The substantive relief sought by the plaintiffs in the present proceedings 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.
It is only paras.2 and 4 of that relief that are orders in the nature of judicial review.
Mr & Mrs Hall, as objectors to the development application have standing not only to seek the relief claimed in paras.1–4 but also that claimed in para.5. Dr Halcrow may or may not have standing to seek the relief claimed in paras.1-4. However, as a person who has a reasonable apprehension that he may be injured or his property damaged as a result of the development, he has standing to seek the relief claimed in para.5 and, to the extent that they may be incidental to that relief, the relief sought in paras.1 and 3. The declarations sought are relevant and incidental both to the claim for judicial review of the two decisions and also, at least in Mr & Mrs Hall’s case, to the relief sought in para.5. Importantly, the relief sought by all plaintiffs in para.5 is independent of and is not necessarily incidental to the relief sought in paras.2 and 4.
Rule 98.01(3) of the Supreme Court Rules provides:
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 them 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.
Rule 98.11(5) also provides:
Where the relief sought is a declaration, an injunction or damages, and the Court considers that it should not be granted on a summons for judicial review but might have been granted if it had been sought in an action begun by summons by the plaintiff at the time of commencing of the action, the Court may instead of refusing the judicial review, order the proceedings to continue as if they had been begun by summons other than under this Rule and the Court may give directions accordingly.
There is therefore justification for the plaintiffs seeking, in these proceedings, the relief claimed in all five paragraphs of the orders sought.
Rule 98.06 which provides for the six month limitation period, only applies to applications for judicial review. There is no relevant limitation period applying to the plaintiffs’ application insofar as it seeks relief by way of declaration and injunction. It is well established that the court may decline such relief or relief by way of judicial review in the exercise of its discretion by reason of undue delay in bringing the proceedings. However, that is a reason for refusing the remedy and a matter for the court hearing the substantive application. It may apply whether or not judicial review proceedings are commenced within time. The fact that the plaintiffs may obtain relief by means other than judicial review suggests that it would be appropriate to extend the time to commence the proceedings for judicial review so that all relevant matters and possible relief can be considered at the same time. None of the defendants have pointed to any prejudice to them by reason of extending the time for bringing the application for judicial review beyond that which they suffer in any event by the plaintiffs seeking what may also be regarded as alternative remedies of declaration and injunction.
Because this is a matter which is not solely a matter of public law and the rights of the plaintiffs as adjacent property owners are affected. There is a private law element to the application as well. In that sense the case differs from the dictum of Jacobs J in Clayton v Ralphs & Manos[6] relied on by Mr Roder, counsel for City Apartments, and from the decision of the Full Court in Xenophon v State of South Australia & Ors.[7] In that case, the Full Court held that claims for a declaration could not be granted independently of and were dependent on an order for judicial review. The plaintiff was not entitled to the order for judicial review. The plaintiffs’ right to seek declaratory and injunctive relief against the developer in this case is independent of their right to seek judicial review of the decision of the Council, even though the same grounds may be relied on in part.
[6] (1987) 45 SASR 347 at 354.
[7] (2000) 78 SASR 251.
However, leaving aside the question of the availability of alternate remedies not subject to a time limitation, it is necessary to consider the circumstances as they unfolded, at least from the point of view of the plaintiffs. The Building Rules consent was granted by Katnich Dodd on 4 March 2005. The council gave its final development approval on 21 March 2005. The order of the trial Judge quashing the approval and restraining further development was made on 27 May 2005. At that stage the plaintiffs had no reason to make any further inquiry into the validity of the development approval.
In the course of the previous judicial review proceedings an injunction had been granted restraining City Apartments from performing any further development on the land. After the decision of the trial Judge holding that the development approval was invalid, City Apartments applied to vary the injunction to allow it to build a 70 metre retaining wall at the bottom of the embankment or mound of fill. This was said to be based on concerns about the slope’s stability and the risk to public safety from the fill. This caused the first and second plaintiffs to make further inquiries. In a preliminary report from an engineer dated 14 June 2005 they were advised that the partially constructed retaining wall was neither in accordance with the engineering design on which it was said to be based nor consistent with the proposal plans previously lodged with the council. They were advised that the retaining wall, as apparently proposed to be constructed, was inadequate and that the embankment was unsafe. The building of the retaining wall was not then proceeded with and the injunction remained. So matters stood until the Full Court judgment of 9 September 2005. Until that time the plaintiffs believed that the development approval was invalid and that no development could proceed.
Having then been told by the Court that the development approval was valid, and fuelled by concern about the adequacy of the retaining wall, the plaintiffs began to make inquiries as to what in fact had been approved. On 19 September 2005 they were advised that the spread of fill on the building plans was much greater than that shown on the site plan used for the purposes of provisional Development Plan approval, that there was evidence that the embankment was moving, that it appeared that neither the retaining wall nor the embankment had been the subject of Building Rules approval, and that they would not have been approved as presently constructed.

By the time that the plaintiffs were allowed to inspect some of the drawings on the Council file (26 September 2005), the six month time limit had expired. Having obtained some plans from the Council, the plaintiffs obtained further engineering advice on 17 October 2005. That was to the effect that it seemed unlikely that the embankment, which was larger than shown on the preliminary plans, had been the subject of Building Rules consent, that on its face the embankment was unstable, and that its stability was not improved by the proposed retaining wall.
In the meantime, on 8 October 2005, work which had been recommenced on the site following the Full Court decision was stopped by order of the Council. It is not entirely clear, but it seems that that may have been pursuant to s 84 of the Development Act 1993 (SA).
Correspondence between the plaintiffs’ and the developer’s solicitors and with the Council ensued. The plaintiffs, before incurring costs of another action themselves, not surprisingly sought information concerning what action, if any, the Council was then proposing to take. On 19 December 2005 the Council’s solicitors advised that the Council could or would take no action in relation to the Development Act approval. Further delays in issuing proceedings by the plaintiffs were caused by the Christmas holidays and the availability of solicitors and counsel, until the proceedings were issued on 31 January 2006.
In considering the exercise of discretion for leave to serve and in granting an extension of time, there are, generally, four factors to consider, namely the length of the delay, the reason for the delay, the applicant’s prospects of success and the extent of any prejudice to the respondent by extending the time.[8]
[8] McKay v Alexandrina Council (2003) 227 LSJS 442; [2003] SASC 167.
In this case the length of the delay is almost five months. By itself that means little. It must be viewed in the context of the circumstances and the respective actions and positions of the parties. When coupled with the reason for the delay, the length of the delay is not unreasonable.
Given the unusual circumstances faced by the plaintiffs and their reasonable belief, until 9 September 2005, that the development approval was invalid, they could hardly be expected to have taken any further action within that time, neither would it have been reasonable for them then to search around for some other ground to attack the approval which this Court at that time had declared to be invalid. They were not entitled to receive documents relevant to the Building Rules consent or the final development approval. There was nothing of which they were aware which would raise any doubt about the validity of either process. By 9 September 2005 the six month period since the granting of the Building Rules approval had already elapsed, and if they were to take any further action, it was almost inevitable that an extension of time beyond 21 September 2005 would be necessary. Having been alerted to the potential problems associated with the development approval, which they had no reason to suspect had not been properly carried out, they proceeded with reasonable diligence to try to ascertain what had happened, to obtain the necessary advice and to institute the proceedings.
In considering the applicant’s prospects of success I do not consider it is necessary for the plaintiffs to show that they have a probability of success in order to obtain an extension of time. It is only if they had little or no prospect of success that a court would be less inclined to grant them an extension. I consider that that is the relevance of the third criterion mentioned above.
I cannot say that the plaintiffs have no prospect of success. On the information available to them at this time it seems that there may well have been a procedural irregularity affecting the validity of the planning approval.
I turn to the question of prejudice to the defendants. Work on the proposed development has been effectively prevented by action of the Council. Whatever outlays the developer may have incurred in years gone by, there is relatively little expense that has been incurred by the developer since the granting of the development approval and which might be thrown away by reason of delay in commencing these proceedings. While any immediate activity in relation to the development appears to have been halted by action of the Council, I cannot overlook the fact that, if such an order were not in place, at least Dr Halcrow might well be entitled to an interlocutory injunction restraining development of the land in the interest of his own safety and that of his own property immediately below the present embankment.
It was held by the Full Court in Hall v City of Burnside[9] that the provisional Development Plan consent granted in this case would lapse, in accordance with reg 48 of the Development Regulations 1993, on 22 September 2005. City Apartments complains that, if the provisional Building Rules consent and the final development approval are set aside, it would not then be possible to make a renewed application based on the original provisional Development Plan consent because that would have lapsed. It would thereby be prejudiced by the extension of time.
[9] (2005) 92 SASR 579.
There are two answers to this submission. In the first place, that is likely to have been the position even if the proceedings for judicial review were commenced within time. It is most unlikely that they would have been completed before 22 September 2005. Secondly, in Hall v City of Burnside[10] I expressed the view, obiter dictum, but concurring with the view of the trial Judge,[11] that application could be made to extend the relevant period prescribed under s 40(2) Development Act after the period has expired. Doyle CJ and Perry J did not disagree with that view. If that is so, then City Apartments will be entitled to have all relevant considerations brought to bear on any decision to extend the time, and that decision itself would appear to be subject to appeal under s 86(1)(a) Development Act. No doubt one of the relevant considerations on such an application would be the effect on obtaining a valid approval within time of actions taken in this Court.
[10] Ibid at 597-600.
[11] Hall v City of Burnside (2005) 91 SASR 532; [2005] SASC 199.
To the extent that there may be some prejudice to the defendants, I consider that that is minimal and is outweighed by other factors in favour of granting an extension.
Finally, although it is not one of the four criteria mentioned above, there is, in this case, a substantial question of public safety and the stability of the embankment even without further development which justifies a proper inquiry into that question and whether due process was observed in granting the development approval to City Apartments.
In my opinion the delay in all the circumstances is not excessive, the reasons for delay are explicable, it is not a case without merit and the respondents are likely to suffer little or no prejudice by the delay. There are also issues of public safety at stake which require investigation. The extent and seriousness of those issues will only be properly revealed if the case proceeds. In those circumstances the plaintiffs would be entitled to an extension. However, given that there are also other remedies available against at least one of the parties based on similar grounds, and those remedies are not subject to an initiating time limit, the case for an extension of time becomes compelling, and any ground for opposing leave to serve based on delay falls away.
It was for these reasons that, on 2 March, I extended the time within which the plaintiffs could issue their inter partes summons to 31 January 2006 and I made an order granting leave to the plaintiffs to serve the proceedings subject to the first and second plaintiffs making an application pursuant to Supreme Court rule 84.12 to the Full Court in action number 494/2005 to vary the order of that court made on 9 September 2005 in such a way as would not prevent the granting of the relief sought by the plaintiffs in these proceedings.