Hutchison 3G Australia Pty Ltd v City of Mitcham

Hutchison 3G Australia Pty Ltd (Hutchison) appealed to the High Court of Australia against a decision of the Full Court of the Supreme Court of South Australia, which had affirmed a decision of a single judge of that court. The dispute concerned the validity of a development approval granted by the City of Mitcham (the Council) to Hutchison for the erection of a mobile phone base station. The Council had granted the approval subject to a condition that Hutchison enter into a section 293 agreement with the Council under the *Development Act 1993* (SA). Hutchison contended that this condition was invalid and sought a declaration to that effect.

The High Court was required to determine whether the Council had the power to impose a condition requiring Hutchison to enter into a section 293 agreement as a prerequisite for development approval, and if so, whether the condition imposed was valid. The central legal issue revolved around the interpretation of section 293 of the *Development Act 1993* (SA) and its relationship with the Council's general power to impose conditions on development approvals under section 65 of the same Act.

The High Court held that section 293 of the *Development Act 1993* (SA) did not confer power on a planning authority to require a developer to enter into a section 293 agreement as a condition precedent to the grant of development approval. The Court reasoned that section 293 provided a mechanism for the *voluntary* entering into of agreements concerning matters that might otherwise be the subject of conditions, but it did not create a power to compel such an agreement. Therefore, the condition imposed by the Council was beyond its statutory power and was invalid. The Court allowed the appeal.