Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside (No 2)

HARROW TRUST v ADELAIDE HEBREW CONGREGATION INC & CITY OF BURNSIDE (No. 2)
[2002] SASC 30
Land and Valuation Division
BLEBY J:
Introduction

Harrow Trust (“the appellant”) was the applicant for provisional development plan consent for a development which was described in the application as a “supported residential facility”. The first respondent (“the Council”) was the relevant planning authority. The application was opposed by the Adelaide Hebrew Congregation Inc (“the second respondent”).
The Council approved the application subject to certain conditions. The second respondent appealed against that decision to the Environment Resources and Development Court (“the Environment Court”), seeking to have the decision quashed. The Court was constituted by a single Commissioner. That appeal was allowed, but only for the purpose of substituting a plan with some minor changes of detail and for making some relatively minor changes to the conditions of approval. Those changes had been suggested by the planning consultant retained by the Council. They were agreed to by the appellant. The appellant therefore effectively succeeded on the second respondent’s appeal.
In the course of the hearing the appellant had applied to the Environment Court to dismiss or determine the proceeding as having been instituted or prosecuted for the purpose of delay or obstruction or for some other improper purpose.[1] It also applied for an order for costs against the second respondent.[2] Both applications were refused by the Environment Court.[3] The appellant now appeals against that refusal as of right on a question of law.
[1] Section 17(4)(a)(ii), Environment, Resources and Development Court Act 1993
[2] Section 17(4a) Environment, Resources and Development Court Act 1993
[3] Adelaide Hebrew Congregation Inc v City of Burnside and Harrow Trust [2002] SAERDC 19
The second respondent sought leave to cross-appeal. I refused leave on 30 August 2002 for reasons which I subsequently published.[4]
[4] Harrow Trust v Adelaide Hebrew Congregation Inc and City of Burnside [2002] SASC 308
Nature of the planning issues raised
The description of the development adopted by the Environment Court was as follows:
“The facility will provide semi-independent living accommodation for 12 people with mild to medium intellectual disability, who possess reasonable independent living skills. They require day supervision/leadership and limited-time presence by supervisors. Most residents will be capable of being gainfully employed in sheltered workshops or by taking up community activities/contracts under the direction of a supervisor/coordinator. The project will start out with 12 male clients, mainly in the 17 to 25 age group. This artificial age grouping at start up will gradually erode over time as the Harrow Group widen their client base on this and other sites, as clients exit the system and new clients take up residency. However, for the inaugural intake at Flemington Street, hopefully this will be their long-term home for many years.
The facility is modelled on smaller supported aged accommodation facilities … Each client will have their own separate living quarter where they can relax and sleep and in some cases prepare light meals. Communal dining and recreation facilities are also provided, as a number of clients will find it easier and more convenient to have support in day-to-day activities. Laundry and other housekeeping issues will be managed/completed by parents/guardians/paid carers. Recreational support facilities are also to be provided through an extended garden including a vegetable patch and a workshop area. The workshop will allow low-level recreational opportunities as well as providing an exercise/activity area for the wetter months of the year.”
Subject to one matter which I am about to mention, there was little or no argument that the development was generally consistent with the relevant provisions of the appropriate development plan, and the Environment Court so found. It was also readily satisfied that the development complied with all relevant requirements concerning traffic, access and vehicle parking.
The principal ground of opposition to the development by the second respondent in the Environment Court related to the safety of children attending the nearby Massada College or the synagogue conducted by the respondent. The case was based on the alleged increased likelihood of sexual abuse of such children by occupants of the facility.
Having considered all the evidence, the Environment Court was satisfied that there was “no basis upon which to conclude that the development as proposed represents a risk to the children attending Massada College or the associated synagogue and community centre any greater than that represented by any other residential development of a comparable scale”.
Application under section 17(4) and 17(4a)
Section 17 of the Environment, Resources and Development Court Act 1993 (“the Act”) so far as is relevant for present purposes, provides:
“(4)Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings –
(a)    dismiss or determine any proceedings that appear –
(i)to be frivolous or vexatious; or
(ii)to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;
(b)    after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
(c)    give summary judgement against a party –
(i)who obstructs or unnecessarily delays the proceedings; or
(ii)who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or
(iii)who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.
(4a)If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case.
(4b)The Court may, in making an order under subsection (4a), determine that the costs will be determined or settled –
(a)    as between party and party in accordance with the scale prescribed for the purpose; or
(b)    as between solicitor and client.”
The appellant’s application under subsection (4)(a)(ii) was founded on an allegation that the second respondent’s appeal was for the purpose of delay or obstruction and in order to maintain its own prospects and hope of obtaining the land for its own use. That allegation was based on the following:
1.A letter obtained by the appellant on subpoena in which the president of the second respondent expressed his disappointment to the Chief Executive Officer of the Department of Industry and Trade (being the Department responsible for the sale of the land for development) that the land in question had been agreed to be sold to the appellant. He also expressed the expectation of the second respondent that the land would be offered to it, and his dismay that the land had been sold to the appellant without consultation. He claimed that the second respondent had been “treated unjustly, both morally and administratively”.
2.     A circular sent to members of the Adelaide Hebrew Community during an      adjournment of the appeal proceedings in the Environment Court reporting progress on the appeal. That circular reported in some detail on the child      safety issue but also noted the alleged unfair treatment by the Government      in refusing to sell the land, and that the planning objections had delayed the         development for two years, that in itself being “a justification of our     position”.
3.     Oral evidence of the Chief Executive Officer of the second respondent in       which he admitted that the second respondent saw the subject land as    affording the opportunity for an extension of its existing activities and that       it had had an expectation for some years that the land eventually would be       offered to it.
4.     Several features of the way in which the second respondent had conducted     itself on the original objection to the proposal and in the hearing of the         appeal.
The appellant argued that the combination of these features led to an inference that the second respondent, in instituting the appeal, was motivated substantially by a desire to enhance or maintain its chances of obtaining the land for itself.
The Environment Court’s conclusion as to the factual issues raised by the appellant was as follows:
“Having regard to all the evidence, but, in particular, that of Mr Rich and Exhibits G and I, I have concluded that, on the balance of probabilities, a substantial motivating purpose for these proceedings, albeit not the sole purpose, was the appellant’s desire to delay or prevent the proposed development proceeding, in order to keep alive the possibility of obtaining the subject land for its own purposes, that desire being based on a perception that it had been treated unjustly by the government when the land was made available to the second respondent. Such a purpose, in my view, falls squarely within the scope of Subsection 17(4)(a)(ii).”
However, the Court considered that it nevertheless had a discretion in granting or refusing an application under s 17(4).
I have already noted that the appeal was allowed for the purpose of substituting a slightly modified plan and of changing some conditions in a minor way. The Council, being the relevant planning authority, was the first respondent to the appeal. Mr Burns was a qualified planning consultant who had been retained by the Council. He had provided a report for the purposes of the appeal in which these changes were suggested. The appellant had indicated at the outset that it accepted those suggestions and would consent to an order reflecting those variations. The proposed variations were not the subject of any evidence or submissions initiated by the second respondent.
Having concluded that a substantial motivating purpose for the proceedings was to delay or prevent the proposed development from proceeding in order to keep alive the possibility of the second respondent obtaining the land for its own purposes, the Court nevertheless exercised its discretion against the appellant’s application because it considered that if it granted the application, the opportunity to vary the proposal and the conditions of consent in the manner suggested by Mr Burns would be removed. It would therefore be inappropriate, so the Court held, to dismiss the appeal under s 17(4)(a)(ii).
The Court decided that the appeal should be allowed, but only to the extent necessary to afford the parties the opportunity to discuss and address the Court on the amendments and revised conditions. Accordingly, the Environment Court heard the parties on those matters, but also heard further argument on the conclusion previously intimated that the appeal would not be dismissed under s 17(4).
The appellant submitted that if it was not possible to dismiss the appeal in those circumstances, the Environment Court should nevertheless “determine” the appeal under s 17(4)(a)(ii), the changes only having arisen as a result of a suggestion by the Council’s consultant planner. The appellant also submitted that the Environment Court should make an order for costs in its favour under s 17(4a).
The Court’s final conclusion was expressed in the following terms:
“Read together, the provisions of Subsection 17(4) appear to be directed primarily towards circumstances in which proceedings should be terminated at an early stage, rather than being allowed to run their course. In this matter, however, Mr Henry’s application, pursuant to Subsection 17(4)(a)(ii), was made in the course of his final address. I am not suggesting that application should or could have been made at the commencement of the hearing, as much of the evidence on which it was based emerged as the case proceeded. However, coming at the time it did, it placed the Court in a position where it was ready to consider both the merits of the proposal and the Subsection 17(4)(a)(ii) application contemporaneously. In those circumstances, and having regard to the need for conditions of consent to be the subject of submissions by the parties, I considered it inappropriate to dismiss or determine the proceedings at that point. Is it appropriate now to do so? After much reflection I have decided that it is not, for several reasons:
(a)the intention of Subsection 17(4)(a)(ii) is to protect the beneficiary of a consent against the continuance of appeal proceedings which have been instituted predominantly to delay or obstruct that beneficiary, or for some other improper purpose, that is, a purpose other than that for which the Court process is intended. The underlying rationale must be that it would be unfair to put the beneficiary to the expense, delay and inconvenience that would result from the continuation through to conclusion, of the hearing of an appeal that had been instituted for an improper purpose. On the basis of that interpretation, I do not think it is open to me, at the conclusion of these proceedings, to base a decision in favour of the second respondent wholly or partly on any finding that the appellant’s case was founded, in part, on an improper purpose;
(b)the conditions ultimately agreed between the parties, albeit deriving primarily from the evidence of a witness called by the second respondent,[5] vary the consent issued by the Council. They do so as a direct consequence of these proceedings having been instituted, and would not have been imposed had the original approval stood. To the extent that the appeal has resulted in variations to the original consent, it is not, in my view, appropriate to determine these proceedings wholly against the appellant, as would be required were I to apply Subsection 17(4)(a)(ii).
It follows that an order for costs will not be made against the appellant.”
[5] In fact the witness was called by the Council
The stage at which Section 17(4) can be invoked
In my opinion the Environment Court erred in holding that paragraph (4)(a) is restricted in its application to an early stage of the proceedings or before final addresses. A proceeding that is frivolous or vexatious[6] will usually be identified as such either from the nature of the originating document or from evidence surrounding the institution of the proceedings. It can usually, although not always, be detected at an early stage and before any evidence is led or argument put on the merits of the proceedings.
[6] Subsection (4)(a)(i)
A proceeding instituted for the purpose of delay, obstruction or for some other improper purpose[7] is less likely to be identified as such at the outset. Those features may well not become apparent until well into the evidence led in the proceedings. They may be hinted at in cross-examination of the witnesses called by the party instituting the proceeding, but the real purpose may not become apparent until the applicant’s evidence is considered against the background of evidence led for the respondent.
[7] Subsection (4)(a)(ii)
More significantly, however, the sub-section itself does not merely require that the proceeding was instituted for an improper purpose. It contemplates that it may have been prosecuted for the purpose of delay or obstruction or for some other improper purpose. The purpose in prosecuting an appeal may not become fully apparent, as was the case here, until late in the proceedings. That must mean that an applicant under s 17(4) must be able to make an application under paragraph (a)(ii) at or close to the end of the proceedings.
Before it was amended in 2000 s 17(4) of the Act provided:
“(4)Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings –
(a)    dismiss or determine any proceedings (with costs) that appear to be frivolous or vexatious, or to have been instituted or prosecuted for the purpose of delay or obstruction;
(b)    after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
(c)    give summary judgment (with costs) against any party who obstructs or delays the proceedings, fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.”
The amendment added “other improper purpose” to the grounds on which the power to dismiss or determine could be invoked. It added, by the enactment of subsection (4a), a prima facie entitlement to costs, if action was taken under subsection (4), unless there was some good reason not to award costs. It also added, by subsection (4b) the power to award solicitor and client costs. At the same time, what appears to have been a duplication in the Act, contained in s 29(1), of a power to award costs in the circumstances mentioned in the previous s 17(4) was repealed.
With the amendment there was, nevertheless, a broadening of the circumstances and manner in which costs could be awarded. It would be unusual if, at the same time, the power to award costs on taking action under paragraph (4)(a) was effectively limited to an order for dismissal or determination of the proceedings made at the outset or in the early stage of the proceedings.
It follows that the Environment Court was wrong in concluding that the purpose of the subsection was to prevent the continuance of the hearing because it would be “unfair to put the beneficiary to the expense, delay and inconvenience that would result from the continuation through to conclusion, of the hearing of an appeal that had been instituted for an improper purpose”. The object of compensating a party put to the trouble and inconvenience of a hearing by an application to which subsection (4)(a)(ii) applies will be achieved either by dismissing or determining the proceeding at an early stage or, when the improper purpose is not apparent until near the close of the proceedings, by dismissing or determining the proceedings later and by applying the cost sanctions available under the subsections (4a) and (4b). That object may also be achieved by a combination of those powers.
The power to determine proceedings
The Environment Court seems to have taken the view that to “determine” proceedings under subsection (4)(a) has the same effect as to “dismiss” the proceedings in their entirety. This requires a consideration of what is meant by the power to “determine” the proceedings where that word is used in subsection (4)(a).
The Environment Court has a wide ranging jurisdiction. It has jurisdiction (including jurisdiction to try a charge for an offence) conferred on it by or under the Act or any other Act.[8] That jurisdiction includes jurisdiction to determine questions under the Native Title (SA) Act 1994.[9] The jurisdiction conferred by the Development Act 1993 alone includes restraining and awarding damages for breaches of that Act,[10] hearing appeals against decisions on development applications,[11] acting as a building referee[12] and the exercise of a criminal jurisdiction.[13]
[8] Section 7(1) Environment Resources & Development Court Act 1993
[9] Section 5(1) Native Title (SA) Act 1994
[10] Section 85 Development Act 1993
[11] Section 86 Development Act 1993
[12] Section 87 Development Act 1993
[13] Section 105(4) Development Act 1993; Section 7(1) Environment Resources & Development Court Act 1993
In this case the Environment Court was exercising the jurisdiction conferred by s 86(1)(b) of the Development Act 1993. Some of the powers of the Court are contained in s 88 of the Development Act. So far as is relevant that section provides:
“88. The Court may, on hearing any proceedings under this Act –
(a)confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate;
(b)affirm, vary or quash any order, notice or other authority that has been issued;
……..
(e)make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

Given the breadth of the Environment Court’s jurisdiction, it is not surprising that the Act should describe the Court’s function in very broad terms. Section 15 of the Act provides for the constitution of the Court in different circumstances and for particular purposes. It speaks of questions being “determined” by a full bench of the Court.[14] On numerous occasions it speaks of “the hearing and determination” of proceedings.[15] Section 16, dealing with pre-hearing conferences, speaks of a member of the Court making a “determination or order" in order to give effect to a settlement reached at a conference. The Act therefore uses the expression “determine” or “determination” in the sense of resolving by an appropriate means the issues or questions arising in the proceedings.
[14] Subsection (2)(b)
[15] Subsections (3)(a), (4) and (11). See also section 16(11)
Section 17(4) refers to a power to dismiss. That may include bringing the proceedings to an end with or without resolving the substance of the proceedings. That expression necessarily suggests some action detrimental to the applicant. The paragraph also refers to the power to “determine” a proceeding. However, that does not mean terminating the hearing or refraining from hearing the proceeding. It means determining the proceeding in the sense in which it is used elsewhere in the Act, namely the making of a determination that may properly be made in the exercise of the particular jurisdiction. It enables the Court to do what it does when it hears and determines a proceeding. That may include, in the case of an appeal in respect of a development application, varying the decision of the planning authority by, for example, substituting some varied conditions of approval. It does not mean, as the Environment Court seems to have held, that the proceeding must be determined solely against (in this case) the second respondent.
It follows that it is possible to determine an appeal under s 17(4)(a) in a manner that includes a variation to the original proposal and to the conditions of its approval, but to do so by reason of the fact that the appeal was instituted or prosecuted for an improper purpose. The appeal would be determined but not dismissed, not because of any merit in the appeal, but because it was instituted or prosecuted for a purpose mentioned in sub-paragraph (ii). If an appeal can properly be determined, incidentally, in a manner which makes the development a better one, there is nothing to prevent that by invoking the powers contained in s 17(4).
It follows that in my opinion the Environment Court erred in two respects in the reasons that it gave for refusing the appellant’s applications under s 17(4) and under s 17(4a). It refused the applications for reasons which were not open to it.
However, that is not the end of the matter. It still requires to be considered whether the Environment Court was satisfied to the necessary degree that the appeal had been brought for an improper purpose.
The level of influence of the improper purpose
The Environment Court was satisfied that “a substantial motivating purpose” for the proceedings, “albeit not the sole purpose” was the second respondent’s desire to delay the development or prevent it from proceeding in the hope of still acquiring the land for its own purposes. It held that such a purpose fell squarely within the scope of subsection (4)(a)(ii).
I accept, for present purposes, that such a purpose is a purpose falling within the grounds stated in subsection (4)(a)(ii). The question is whether it merely needs to be a substantial motivating purpose or whether it needs to be something more.
Mr Henry, counsel for the appellant, relied upon a line of cases beginning with Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617. That was a case which arose under the Trade Practices Act 1965–1971 (Cth), the predecessor to the Trade Practices Act 1974. Section 66B(2) provided, among other things, that a person engaged in the practice of resale price maintenance if, being a supplier of goods, they withheld supply to a person “for the reason that” the person had engaged in price cutting. The Court held that the phrase “for the reason that” in the context of that section did not mean “for the sole reason that”. Barwick CJ, with whom McTiernan J agreed, said at 634-635:
“In my opinion it is not correct to so emphasize the participle in the phrase ‘for the reason that’ as to interpret the paragraph as requiring the withholding of the supply to be for one reason only. In my opinion, if the likelihood that the would-be purchaser would sell at less than the specified price is an operative reason for withholding that supply, the supplier engages in the practice of resale price maintenance, however many other reasons the supplier may in fact have for not supplying the goods to the would-be purchaser.
The likelihood of price cutting is not required, in my opinion, to be the predominant reason; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of the supply.”
Walsh J made similar observations at 646, as did Stephen J at 658.
That was a case involving the definition of resale price maintenance, a practice outlawed by the Trade Practices Act. There may well be good policy reasons for setting the bar reasonably low where it comes to assessing a person’s reason for undertaking a particular action where the reason for the action is a key element in defining the practice to be outlawed. The policy enunciated by the High Court in Mikasa now finds expression in s 4F of the Trade Practices Act 1974.
A similar approach was taken in relation to s 5 of the Conciliation and Arbitration Act 1904 (Cth) which provided that an employer should not dismiss an employee by reason of various specified circumstances. In Roberts v General Motors – Holden’s Employees’ Canteen Society Inc (1975) 25 FLR 415 the Full Court of the Australian Industrial Court, relying on Mikasa, said, at 424:
“Whether a particular action taken by a person may be said to be so taken by reason of some particular circumstance, appears to depend upon whether it may be said that the circumstance was a substantial and operative factor influencing him to take such action.”
A similar approach can be detected in determining, in worker’s compensation legislation, whether an action arose in the course of employment by reference to the action’s then relevant purpose. In Hook v Rolfe (1986) 7 NSWLR 40 Glass JA said at 44:
“The existence of conduct inspired by multiple purposes is a common phenomenon. It raises the problem of classification in connection with a legal standard defined in terms of purpose. The solution normally adopted is to act upon the relevant purpose, to disregard others and not to inquire which of them is dominant or earlier: Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 (withhold supply for the reason that); National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation (1970) 122 CLR 13 (land used for the purpose of producing assessable income). The same approach has been adopted in relation to the question whether conduct motivated by several purposes can fall within the course of employment (Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 (at 134), ….. Whiting v Brambles Industries Ltd [1976] (NSW) WCR 213 at 220: ….)”.
Notwithstanding those authorities, I consider that s 17(4)(a)(ii) requires a more stringent approach. Many persons or organizations will oppose applications for provisional development plan consent and will initiate or join in subsequent appeal processes for reasons not necessarily related to sound planning reasons and will marshal, in favour of their position, as many planning reasons as they can to support their position. The motives for opposing a development may be very strong and varied. In one case, it may be because of the loss, through the proposed development, of an attractive view. In another case, the opposition may be motivated by fear of commercial competition. In yet others it may be based on a fear of property devaluation as a result of the proposed development. There are many reasons why opposition is mounted to particular developments. In many cases they are quite plainly a substantial and operative purpose or reason for opposing the development, which might also be opposed on sound planning grounds.
If all that a developer had to show was that proceedings before the Environment Court were instituted or prosecuted for a purpose which was a substantial or operative purpose, then many litigants would be exposed to dismissal of the proceedings under s 17(4) of the Act and to costs orders under subsection (4a) and (4b). It would only be those applications or appeals that were mounted solely for altruistic planning reasons that would be immune from such orders. I do not think that that was the intention of Parliament in amending subsection (4) and in enacting the two additional subsections (4a) and (4b).
The Environment Court, particularly in its planning jurisdiction, has always been essentially a no cost jurisdiction, but with a reserve power to award costs in what might be regarded as exceptional circumstances. To enable proceedings to be effectively struck out and costs to be awarded because a particular self-interested motive might be shown to be a substantial and operative and improper purpose would be to open the flood gates to such applications to the point of discouraging what might well be justified opposition to a development for sound planning reasons. To adopt the approach taken in Mikasa and the other cases to which I have referred would be to place the bar too low for successful applications under s 17(4)(a)(ii).
There is justification for setting the bar at a higher level, particularly in relation to actions which might properly be said to constitute an abuse of process, which I consider to be the thrust behind subsection (4)(a). In Williams v Spautz (1991) 174 CLR 509 a lecturer commenced an action against a University for wrongful dismissal. He later laid informations against officers of the University alleging a number of criminal offences. The defendants in the prosecutions alleged that the prosecutions were an abuse of process, their predominant purpose being to exert pressure upon the University to reinstate the lecturer or to agree to a favourable settlement in his wrongful dismissal case. By a majority, the prosecutions were held to be an abuse of process and were properly stayed. In their joint judgment Mason CJ, Dawson, Toohey and McHugh JJ said, at 529:
“It has been suggested that the criterion for abuse of process is whether the improper purpose is the sole purpose of the moving party. However, in more recent times it has been said, in our view correctly, that the predominant purpose is the criterion. That was the test applied by Lord Denning in Goldsmith v Sperrings Ltd and by the English Court of Appeal in Metall & Rohstoff v Donaldson Inc. In giving the judgment of the Court in the latter case, Slade LJ observed:
‘[A] person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed’
It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is ‘a heavy one’, to use the words of Scarman LJ in Goldsmith v Sperrings Ltd and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.” (Footnotes omitted)
Just as there must be a predominant purpose to constitute an abuse of process, so I consider there must be a predominant purpose to justify dismissing or determining proceedings under s 17(4)(a)(ii). A substantial and operative purpose will not, in itself, be enough.
I consider that there is some support for that view which is derived from a consideration of legislation which brought about the amendment to s 17(4) and the addition of subsections (4a) and (4b). Those amendments were contained in a schedule to the Development (System Improvement Program) Amendment Act 2000. The principal purpose of that Act was to make amendments to the Development Act. Section 34 of the Amendment Act inserted a new Div 3 in the Development Act entitled – “Initiation of Proceedings to Gain a Commercial Competitive Advantage”. Section 88C of the Development Act, inserted as part of that amendment, provides that where a person is party to relevant proceedings (which would include an appeal in the Environment Court) related to a development and the person has what the Act describes as a “commercial competitive interest” in the proceedings, and where the outcome of the proceedings is that the development in substantially the same form may proceed, then the proponent of the development may recover from the person any loss (including economic loss) that can be reasonably assessed as having been suffered by the proponent as a result of delays to the development on account of the proceedings “if the Court is satisfied that the (person’s) sole or predominant purpose in pursuing the proceedings …..” was to delay or prevent the development in order to obtain commercial benefit for the person. The loss would no doubt include the costs of the proceedings themselves. It would be strange if Parliament intended to lower the bar to prescribe that whenever the purpose of delay or prevention of the development was merely a substantial and operative purpose, the proponent could recover legal costs under s 17(4a) of the Act, but that any additional loss could be recovered under s 88C of the Development Act only if the purpose was the sole or predominant purpose. Consistency requires that the same test be applied under s 17(4)(a).
I therefore consider that, by adopting the “substantial motivating purpose” test for the application of s 17(4)(a)(ii) the Environment Court also erred. However, that is not the end of the matter.
Whether the second respondent’s improper purpose was the dominant purpose
The Environment Court specifically found that the second respondent’s desire to delay or prevent the appellant’s development from proceeding was not the sole motivating purpose in mounting the appeal. However, it did not find that it was the predominant purpose, but merely a substantial motivating purpose. The attack on the development based on child safety was found by the Environment Court to lack substance in that the expert evidence called did not support any conclusion that there was an increased likelihood of child sexual abuse as a result of the development proceeding. The finding was made after hearing opposing expert evidence led by the appellant. However, there is nothing in the evidence to suggest that that was not a matter of genuine concern to the second respondent and its officers, and that that too was not a motivating purpose in mounting the appeal.
The Environment Court did not find that the purpose of delay and obstruction was the predominant purpose. In the circumstances, that is not surprising. I would not be prepared to find, on the evidence relied on by the appellant, that the purpose of delay and obstruction, although a substantial motivating purpose, was the predominant or sole purpose in instituting and prosecuting the appeal. Had it been transparently obvious that there was no substance in the second respondent’s appeal based on fears of child abuse, the position might have been different. But it was not. The second respondent’s case was based on the research of a respected academic. The appellant took the appeal seriously. The material distributed by the second respondent to the community suggested that the second respondent, perhaps misguidedly, considered it to be a serious issue.
The improper purpose found by the Environment Court could not be said to have been the sole or predominant purpose.
It follows that the Environment Court’s decision to reject the appellant’s application under s 17 of the Act was correct, but not for the reasons given by the Court. The appeal must therefore be dismissed.

[2003] SASC 30

7 February 2003