Heath v Adelaide Hills Council - [2000] SASC 406

HEATH and ANOR v ADELAIDE HILLS COUNCIL and ANOR
[2000] SASC 406

Land and Valuation Division

1................ BLEBY J.......................... The plaintiffs, Mr and Mrs Heath, reside at Forreston Road, Forreston within the municipality of the Adelaide Hills Council, the first defendant (“the Council”). Their property is diagonally opposite that of Mr and Mrs Jong, and overlooks the property of Mr and Mrs Jong. Mr and Mrs Jong undertake commercial horticultural activities on their land. They are not parties to these proceedings but have been served with the application. They did not appear at the hearing.

By Development Application dated 14 November 1997 (No 473/441/97), the second defendant, a construction company retained by Mr and Mrs Jong, sought provisional Development Plan consent to undertake what was described as “Extension of existing horticulture activity incorporating two greenhouses and incidental buildings” on Mr and Mrs Jong’s land. The Council treated this proposed development as a Category 3 development for the purposes of s 38 of the Development Act 1993 (“the Act”). Accordingly, it gave notice of the application pursuant to the requirements of the Act and the Development Regulations 1993.
The plaintiffs made written representations to the Council in respect of the application, and later made oral representations to the Council in support of their written representation. They opposed the proposed development.
By Decision Notification Form dated 28 January 1998, the Council granted provisional Development Plan consent for the proposal, subject to 11 conditions.
Being persons who had made representations pursuant to s 38 of the Act in relation to the application, the plaintiffs were entitled to and did appeal against the Council’s decision to the Environment, Resources and Development Court (“the ERD Court”). The appeal proceeded to a conference in the ERD Court before Commissioner Hodgson. A revised plan was prepared, and all parties to the appeal eventually agreed that provisional Development Plan consent should be granted, and an order of the ERD Court to that effect was made on 26 May 1998, incorporating 23 conditions of approval. A number of the conditions related to landscaping. If complied with, they would ensure that what was described as the Stage 2 greenhouse would, when constructed, be shielded from view by the landscaping. Condition 21 of that approval provided:
“(21)......... Construction of the approved Stage 2 greenhouse shall not commence until at least 18 months have elapsed from the time of approval, but shall be substantially commenced within 3 years and substantially completed within 5 years of approval.”
Given the date of the order, the effect of that condition was to impose a restriction preventing commencement of construction of the Stage 2 greenhouse until at least 26 November 1999.
On 4 February 1999 the second defendant lodged with the Council a further development application, the effect of which was to seek a variation to the conditions which were attached to and formed part of the order of the ERD Court. This application was treated by the Council as a new application and was numbered…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2000] SASC 406
Decision Date: 24 November 2000

CaseChat Overview and Summary

The plaintiffs, Mr and Mrs Heath, sought to challenge the decision of the Adelaide Hills Council to approve a development application by the second defendant, a construction company retained by Mr and Mrs Jong. The Council approved the application, which sought to modify the conditions of a previous approval given by the Environment, Resources and Development Court. The plaintiffs claimed that the Council's decision was invalid because it treated the application as a Category 1 development, which meant that the plaintiffs were unable to be heard on the application and were denied any rights of appeal. The plaintiffs sought an order in the nature of certiorari to quash the decision of the Council. The court had to decide whether the plaintiffs' application was made within the time limit set out in the Supreme Court Rules and whether the court should exercise its discretion to grant the relief sought by the plaintiffs. The court found that the plaintiffs' application was out of time and that there was no justification for extending the time limit. Even if the time had been extended, the court would have been bound to refuse the application. The court also found that granting the relief sought by the plaintiffs would be futile and would be devoid of any practical utility. The court dismissed the application for judicial review.

The court found that the Council had failed to address its mind to a material consideration in determining that the application was for a Category 1 development. However, the court found that the plaintiffs were probably denied the right to be heard by the Council, and were probably denied the right of appeal to the ERD Court against a decision of the Council adverse to their interests. The court found that the failure to address that question meant that the plaintiffs were probably denied the right to be heard by the Council, and were probably denied the right of appeal to the ERD Court against a decision of the Council adverse to their interests. However, the court found that the plaintiffs' application was out of time and that there was no justification for extending the time limit. Even if the time had been extended, the court would have been bound to refuse the application. The court also found that granting the relief sought by the plaintiffs would be futile and would be devoid of any practical utility. The court dismissed the application for judicial review.

Orders