Hoff v City of Mitcham - [2016] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HOFF & ANOR v CITY OF MITCHAM & ORS
[2016] SASCFC 3
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
11 February 2016
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - OBJECTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF OBJECTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - GENERAL MATTERS - INFORMATION PROVIDED BY AUTHORITIES - GENERALLY
The proponents of a property lodged an application with the City of Mitcham for the construction of a two storey dwelling with an undercroft garage/store, cellar, privacy screen and front masonry fence. The development was assigned by the Council to Category 2.
The appellants home was adjacent to the land on which the development was proposed. Notice was given to the appellants of the development in accordance with s 38(4) of the Development Act 1993 (SA).
The appellants sought a declaration that the development was incorrectly categorised as a Category 2, and should have been declared a Category 3 development.
Section 86(4) of the Development Act 1993 (SA) prescribes a limit of two months to bring an application for review of a categorisation of a proposed development. The primary issue before the Judge, and on appeal, was whether time runs from when a categorisation decision is made or from the final determination of the planning application.
Held per Kourakis CJ (Bampton and Parker JJ agreeing), dismissing the appeal:
1. Time runs from when the categorisation decision is made.
2. The application for review was made out of time.
Development Act 1993 (SA) s 35, s 38, s 38(4), s 86(1), s 86(4), s 88; Development Regulations 2008 (SA) reg 16, reg 33, reg 42, referred to.
City of Marion v Paior (2013) 117 SASR 223, considered.

HOFF & ANOR v CITY OF MITCHAM & ORS
[2016] SASCFC 3
Full Court: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: This is an appeal against the decision of a Judge of the Environment, Resources and Development Court of South Australia (the ERD Court) dismissing an application for review brought by Mr and Mrs Hoff (the applicants) of the City of Mitcham’s (Mitcham) categorisation of a development proposal submitted by Ms Aitken and Mr Tredidga (the proponents) on the ground that the application was brought out of time. The applicants’ home was adjacent to the land on which the development is proposed.
Section 86(4) of the Development Act 1993 (SA) (the Development Act) prescribes a limit of two months to bring an application for review of a categorisation of a proposed development. The primary issue before the Judge, and on appeal, is whether that time runs from when a categorisation decision is made or from the final determination of the planning application.
I would hold that the time runs from when the categorisation decision, against which the review is…

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: [2016] SASCFC 3
Decision Date: 11 February 2016

CaseChat Overview and Summary

The applicants, Hoff and others, appealed to the Full Court of the Supreme Court of South Australia against a decision of the ERD Court concerning their right to seek a review of a development approval granted by the City of Mitcham. The dispute centred on whether the applicants had validly initiated an application for review within the prescribed time limits under the Development Act 1993 (SA).

The primary legal issue before the Full Court was the interpretation of section 86(4) of the Development Act 1993 (SA), specifically the meaning of "the decision to which an application is brought pursuant to s 86(1)(f) of the Development Act". The applicants argued that they were entitled to receive notice of their right to seek a review and the relevant time limits, and that the absence of such notice should not preclude their application.

Kourakis CJ, with whom Bampton and Parker JJ agreed, held that the phrase "the decision to which an application is brought" referred to the specific decision falling within the placita of section 86(1)(f) of the Act. The Court found no statutory right for potential applicants to receive information about their review rights or time limits, and that the language of the Act did not support an interpretation that would ameliorate the consequences of this parliamentary choice. The Court noted that the remedy for such situations, where appropriate, lay in the ERD Court's power to extend time under section 86(4), a remedy the applicants did not pursue.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the decision in Paior does not support the applicants.Conclusion The decision to which an application is brought pursuant to s 86(1)(f) of the Development Act “relates” for the purposes of s 86(4) of the Development Act is the decision which falls within either of the two placita of s 86(1)(f) of the Development Act. The phrase “to which the application relates” is employed to avoid repeating those placita. I accept that potential applicants pursuant to s 86(1)(f) of the Development Act do not receive, as a matter of statutory right, any information about their right to seek a review and the applicable time limit. However, the absence of any statutory notice reflects the choice of the Parliament and the Executive not to so provide. The language of the Development Act cannot be strained to ameliorate the consequences of that choice. Moreover, the remedy in the appropriate case lies in the power of the ERD Court to extend the time within which to review pursuant to s 86(4) of the Development Act. The applicants do not contend that they were entitled to an extension of time. It follows that the appeal must be dismissed. BAMPTON J: I agree with the Chief Justice that the appeal must be dismissed for the reasons he has given. PARKER J: I agree with the Chief Justice that the appeal must be dismissed for the reasons he has given.

Ratio Decidendi

Legal Principle Established

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