Heath v Adelaide Hills Council

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 473/98/99. The effect of the application, as it eventually proceeded, was to remove the restriction contained in condition (21) and to vary that condition so that construction of the Stage 2 greenhouse could commence prior to 26 November 1999.
The Council treated this application as a Category 1 development for the purposes of s 38 of the Act. The basis of this determination was a resolution of the Council that the application was “minor in nature”. By treating the application as a Category 1 development, the Council was able to determine the application forthwith, without advertisement and without notice to the plaintiffs. It proceeded to do so.
On 27 July 1999 the Council approved the application. It subsequently issued a decision notification form which described the nature of the proposed development as “Modification of condition 22 (sic) of approval 473/441/97 to permit the early commencement of Stage 2 greenhouse”. The reference to condition 22 was a mistake, and was intended to refer to condition 21. It described the nature of the decision as “Provisional Development Plan consent subject to 23 conditions”. In fact the resolution of the Council was to “approve development application 473/98/99 by Jong’s Flowers for early commencement of Stage 2 greenhouse subject to the following conditions”. There followed the 23 conditions, most of which were identical with those forming part of the ERD Court order, apart from the fact that condition 21 read:
“21... Construction of the approved Stage 2 greenhouse shall be substantially commenced within three years and substantially completed within five years of approval.”
One other variation was that the Council deleted a condition relating to the commencement and completion of Stage 1 of the greenhouse which, by then, had been fulfilled.
The other variation related to the timing of the implementation of the landscaping conditions. The original condition (12) forming part of the ERD Court order provided:
“(12)......... The landscape buffer strips shall be planted during the 1998 planting season and commenced forthwith upon the issuing of development approval”.

The 1998 planting season had passed, without the landscaping conditions having been implemented as required by that condition.

The Council was informed by its planning officer that the original landscaping conditions had not been complied with. It was said that this was because the application then before the Council had originally sought to vary the substance of the landscaping conditions, and for that reason they had not been enforced in the meantime. It is not clear to me when the application was made to the Council and why the conditions had not been complied with in the meantime. As the applicants were no longer seeking a variation to the substance of the landscaping conditions, the recommendation, accepted by the Council, was that the original condition (12) be varied to read:
“13... The landscape buffer strips shall be commenced forthwith upon the issuing of development approval.”

The different numbering was brought about by a splitting of one of the original conditions and consequent re‑numbering by the Council.

Apart from what I have just described, there was no other variation of substance to the conditions.
On 8 May 2000 these proceedings were commenced. The plaintiffs seek an order in the nature of certiorari to quash the decision of the Council made on 27 July 1999. They claim that the decision is invalid, as the Council was wrong in treating the application as a Category 1 application, which meant that the plaintiffs were unable to be heard on the application and were denied any rights of appeal.
Schedule 9 of the Development Regulations 1993 defines what comprises a “complying development” for the purposes of s 38 of the Act. The only paragraph which could be applicable to this application was paragraph 2(1)(f), which defines a complying development as including:
“....any development which comprises -
....
(f).... A kind of development which, in the opinion of the relevant authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development.”
The Council expressed the opinion that the development was “minor in nature”, thus expressing the opinion that the first limb of paragraph (f) was complied with. However, there is no evidence to suggest that it even addressed the question whether the development was unlikely to be the subject of reasonable objection from owners or occupiers of land in the locality.
Therefore, in determining that the application was for a Category 1 development, the Council failed to address its mind to a material consideration. Had it done so, given the history of the matter, the Council would probably have been unable to conclude that the development was unlikely to be the subject of reasonable objection from the plaintiffs. 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.
If that were the only consideration, the plaintiffs would be entitled to the orders that they seek.
As I have said, the Council approved the application on 27 July 1999, and these proceedings, which challenge the validity of that decision, were commenced on 8 May 2000. Rule 98.06 of the Supreme Court Rules requires that a summons for judicial review must be issued within six months of the date when grounds for the review first arose. The application is therefore out of time, unless an order is made extending the time within which to bring the application. Quite apart from that, however, the rule also requires that the application be made promptly. Furthermore, the grant of certiorari is discretionary, and will not be ordered if delay is unreasonable: Ex parte Walker; Re Goodfellow (1944) 45 SR (NSW) 103 at 109, or if the making of the order is of no practical significance: La Roche v Cormack (1991) 33 FCR 414.
The more important questions in this case are therefore whether an extension of time should be granted and whether, in the exercise of the Court’s discretion, it should now grant the relief to which the plaintiffs would otherwise be entitled.
It appears that the plaintiffs became aware of the Council’s decision, at least by 30 July 1999. They wrote to the Council on that day complaining about the decision and the fact that Mr and Mrs Jong were in breach of the earlier conditions relating to landscaping. The Council replied by letter dated 9 August 1999, enclosing a copy of the report of its planning officer and a copy of the conditions approved. The plaintiffs were therefore fully aware of what the Council had done within a short time of the Council’s decision.
On 6 September 1999 the plaintiffs commenced proceedings in the ERD Court. According to an affidavit of the plaintiffs’ solicitor, the summons sought orders for an interim injunction to be granted pursuant to s 34 of the Environment Resources and Development Court Act 1993 to prevent development in breach of the earlier order of the ERD Court, and also seeking an order for contempt against the Council and the second respondents for breach of the order. The application for leave to serve the summons pursuant to s 85 of the Development Act 1993 sought an order requiring compliance with a number of the conditions of the original order of Commissioner Hodgson, but not condition (21). An affidavit of the female plaintiff in support of the summons sought “an interim injunction for the work in Stage 2 to cease forthwith” unless a number of landscaping conditions were complied with.
The summons and supporting affidavits, although complaining of the failure to comply with the landscaping conditions, did not call in question either directly or indirectly the validity of the Council’s decision of 27 July 1999. The fact of the application and the decision were referred to in the affidavit, but only as part of the narrative of events.
The plaintiffs encountered a number of procedural difficulties in the ERD Court, and in some respects the application appears to have been ill‑advised. Nevertheless, on 8 September 1999 a judge of the ERD Court made an order which included the following:
“3..... G E Hughes Construction Co (the second defendant in these proceedings) be restrained from undertaking any further work or development pursuant to the said order made by Commissioner Hodgson other than in accord with the terms of that order.”
Taken literally, that would have prevented any further construction of Stage 2, at least until 26 November 1999, but not thereafter. It would also have required compliance with the original condition (12) which, by then, was quite incapable of being complied with. I can only assume that those were unintended effects of the order, which was made ex parte, as the validity of the determination of the Council on 27 July 1999 had not been called in question before the ERD Court. Indeed, there might have been some difficulty in attempting to do so: Smith v Mt Barker Products Pty Ltd [2000] SASC 164.
Over the next few months the ERD Court dealt with a number of procedural and interlocutory issues resulting in the filing, on 8 March 2000, of an application to amend the summons seeking relief under s 85 of the Development Act, including an order cancelling the Development Authorisation granted on 26 May 1998 on the ground of a failure to comply with the conditions of which Mr and Mrs Jong were said to be in breach. In the alternative they sought compensation or exemplary damages. Leave to amend was given by a judge of the ERD Court on 15 March 2000. In a supporting affidavit of the male plaintiff sworn on 8 March 2000, he deposed to breaches of additional conditions in respect of which orders were also sought in the amended application. Among the complaints listed was:
“13... Order 21 was completely ignored as the construction of approved Stage 2 greenhouses was all but completed on the 26th November 1999 which was to be the earliest starting date for the construction.”
There was no complaint of a breach of paragraph 3 of the order made by the ERD Court on 8 September 1999. This affidavit did not refer to the Council’s decision of 27 July 1999, but one of the fresh breaches complained of was that Stage 2 greenhouse, construction then having been completed, was closer to a creek bank than permitted by the original condition number (22).
Thus, in the ERD Court proceedings, as amended in March 2000, the plaintiffs did not allege a breach of the original condition (21) in respect of the commencement of Stage 2, but they did allege continuing breaches of the original landscaping conditions both before and after the change to condition (12). They also alleged a breach of a condition relating to the construction of Stage 2 and continuing breaches of other conditions. The implication to be drawn from the course of the ERD Court proceedings thus far is that, although they complained about it, the plaintiffs accepted the fact of the Council’s decision of 27 July 1999, whilst complaining about the breaches of a number of other conditions by the developers.
That application in the ERD Court has not yet been resolved.
It was against that background that these proceedings were commenced on 8 May 2000.
It appears that in the meantime Mr Jong has filed a further development application with the Council (No 473/1264/99) to vary yet further the conditions of approval attached to the ERD Court order made on 26 May 1998. The application apparently sought variation to conditions (9), (10), (11), (12), (13), (14), (15), (23) and (24) of those conditions, a number of which the applicants had apparently failed to comply with. By Decision Notification dated 6 October 2000 the Council approved the variations to the conditions being sought and deleted original condition (21) as varied in July 1999 as no longer being relevant, having been fulfilled.
That application was treated as a Category 3 application by the Council, and a number of representations (including representations from the plaintiffs) were made both for and against the application. The plaintiffs have lodged an appeal in the ERD Court against that decision. Thus, by an apparently valid decision of the Council, or at least a decision which is apparently not subject to challenge as to its validity, the original condition (21), which the plaintiffs seek to have restored by this application, has now been deleted in toto as being of no further relevance. Likewise, a number of the original landscaping conditions have now been varied or deleted, and it was those original landscaping conditions which were the subject of original condition (12) as to timing, being the condition which the plaintiffs, by this application, now effectively seek to have restored.
If the plaintiffs were to succeed on this application, the variations to the conditions made by the Council on 27 July 1999 would be quashed, and the original conditions, including condition No (12) and (21), would be restored. Stage 2 has been constructed. Under the original condition (21), leaving aside questions of the correct placement of the greenhouse, about which I am not presently concerned, the Stage 2 greenhouse is now lawfully in place in accordance with the development approval given by the original order of Commissioner Hodgson. That is not to say that there have not been breaches of the landscaping and other conditions associated with that development. That is also a matter about which I am not presently concerned.
At this late stage, to grant the order sought by the plaintiffs will be to achieve and prevent nothing. At best, it could be used to establish a breach of the original condition (21) to the extent that construction of the Stage 2 greenhouse took place between 27 July 1999 and 26 November 1999. Under the original condition (21), any construction that took place after 26 November 1999 was or would have been lawful. Furthermore, the plaintiffs now effectively seek restoration of a condition which, on the information presently before me, has now been lawfully deleted by the Council. To accede to the plaintiffs’ application would be futile and would be devoid of any practical utility.
Similarly, in relation to landscaping, the plaintiffs effectively seek a restoration of the original condition (12), which cannot now be complied with, and which has now been further varied to apply to a different landscaping regime.
If the plaintiffs were genuinely concerned about the invalid alteration of conditions (12) and (21) by the Council on 27 July 1999, and if they wanted genuinely to prevent the early construction of the Stage 2 greenhouse, it behoved them to act immediately to take judicial review proceedings and to seek an interim order from this Court to prevent construction from proceeding. The prejudice to the respondents in making an order now is obvious. They proceeded with the earlier construction of the Stage 2 greenhouse in reliance of the purported but unchallenged variation of condition (21) by the Council. To make the order sought by the plaintiffs is to place the respondents retrospectively in possible breach of that original condition.
Mr Hayes QC, for the plaintiffs, complains that failure to make the order to which the plaintiffs are entitled is to provide the defendants with a defence to the proceedings in the ERD Court to which they are not entitled. He argues that the defendants, by way of defence to the proceedings in the ERD Court, will be able to rely on the most recent development consent approval of the Council. He says that if the 27 July 1999 determination is quashed, the most recent variation, being based on an invalid one, must also fall. There cannot be a valid variation to an invalidly obtained approval.
It is not appropriate to resolve such an argument in these proceedings. However, there must be considerable doubt about its correctness in any event, as the recommendation to the Council, apparently accepted by it, was to vary a number of identified conditions attached to the original consent. It did not purport to vary the determination made by the Council on 27 July 1999. The deletion of original condition (21), of the Council’s own motion, was because it could have had no further application.
The ability of the plaintiffs to obtain an order from the ERD Court to restrain a breach of some conditions may now be curtailed by the variation to the conditions which the Council has now made. It is not my present function to determine the merit of any variation made by the Council. The ERD Court will determine whether the most recent variations were justified or not. However, even those variations, if they remain, will not excuse any previous breach of conditions by the developers. Nor will they preclude granting other remedies available under s 85 of the Act for such breaches, if they have occurred.

There may well have been breaches of the landscaping conditions. There may well have been a breach of conditions concerning the location of the Stage 2 greenhouse and of other conditions. Whether there have been such breaches and whether they are such as to require removal or reconstruction of the Stage 2 greenhouse, is a matter for the ERD Court to determine in the light of the facts and circumstances placed before that Court.
The argument of Mr Hayes QC, if accepted, also has the strange consequence that, at the time this application was commenced, there was no justification to extend the time and, because of the delay, no entitlement to the order. The entitlement to the order only arose after a further delay, and after the taking of other action by Mr Jong in submitting his further application to the Council.
In my opinion, there is no justification for extension of the time prescribed in Rule 98.06 for the bringing of these proceedings. Even if the time were extended, the Court, in the exercise of its discretion, would be bound to refuse the application.
I should add that this decision is no reflection on the merit or otherwise of the actions of the second defendant or of Mr and Mrs Jong, nor is it any reflection on the merit of or justification in planning terms for the decision of the Council. There is reason for concern if the decisions of the ERD Court on appeal from a planning authority can be undermined within a short time by subsequent decisions of that same planning authority. However this is not the occasion to enter that field.
The application for judicial review is dismissed.

[2000] SASC 406

24 November 2000