Ilic v The City of Adelaide (No 2) - [2010] SASC 212

Supreme Court of South Australia
(Land and Valuation Division: Application for Judicial Review)
ILIC v THE CITY OF ADELAIDE & ANOR (NO 2)
[2010] SASC 212
Judgment of The Honourable Justice Kourakis (ex tempore)
12 July 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Plaintiff filed inter partes summons seeking judicial review of first defendant’s refusal of development approval – at trial preliminary issues answered adversely to plaintiff – plaintiff applies to amend proceedings to challenge validity of listing of his residence as local heritage place – residence was designated local heritage place by second defendant on basis of a heritage survey – plaintiff took no steps to lodge written objection – over 100 residences recommended by survey were objected to and, of those, only 5 were subsequently recommended by first defendant to second defendant for heritage listing – whether plaintiff has arguable case to challenge validity of heritage listing of his residence.
Held: Although most residences recommended by heritage survey which were objected to were not ultimately recommended to second defendant for heritage listing, that does not make second defendant’s heritage listing of plaintiff’s residence unreasonable – second defendant entitled to take heritage survey into account – second defendant entitled to take into account that no objection made by plaintiff to proposed heritage listing of residence – plaintiff’s proposed challenge to designation of residence as local heritage place not arguable – application dismissed – plaintiff’s inter partes summons dismissed.
Development Act 1993 s 23, s 24, s 25, referred to.

ILIC v THE CITY OF ADELAIDE & ANOR (NO 2)
[2010] SASC 212

KOURAKIS J: In Ilic v City of Adelaide,[1] I answered certain preliminary questions concerning the refusal of planning approval for Mr Ilic to demolish his residence in North Adelaide. Those preliminary questions were premised on the validity of the designation of his residence as a place of local heritage value pursuant to s 23(4) of the Development Act 1993 (the Act). The designation was made by an amendment effective on 30 March 2006. Mr Ilic now seeks leave to amend the proceedings so that the validity of that designation can be challenged.
[1] [2010] SASC 139.
I proceed on the basis that for permission to amend, Mr Ilic must show an arguable case for the invalidity of that designation. The relevant statutory provisions which govern this question begin with s 23 of the Act. That section provides that a place may only be designated as a place of local heritage value if it displays the characteristics set out in s 23(4) of the Act. A proposed amendment of a development plan must go through an extensive consultative process, in particular where an amendment proposes to designate a place, as a place of local heritage value, the owner must be informed: see s 25(12).
On receipt of a proposed amendment which designates a place as a place of local heritage value, the Minister must, if the owner of the land objects to the listing, seek the advice of the Local Heritage Advisory Committee: see s 25(15)(b). The owner must be given a reasonable opportunity to make submissions to the Advisory Committee in that event. On completion of the process including the steps to which I have just referred, the Minister may, pursuant to s 25(15)(c), approve the amendment.
When the Minister came to approve the amendment by which Mr Ilic’s residence was designated, he had before him a Plan Amendment Report. That Plan Amendment Report informed him that consultants with expertise in local heritage places had been engaged and had assessed the places that were suggested for listing. The Minister was informed that they had recommended the listing of Mr Ilic’s residence on the basis that it was a Inter-War Old English Revival style residence and that it satisfied the criteria in ss 23(4)(a) and (d) of the Act.
The Minister, in my view, was therefore entitled to proceed on the basis that there was an expert opinion to the effect that Mr Ilic’s residence met those criteria. Speaking generally, in my view, the structure of the Act and the subject matter of s 23 of the Act is such that it is not necessary for the Minister to be informed of the base facts upon which opinions, such as the heritage consultants’ opinion, are expressed. Amendments deal with a large number of matters which may depend on the assessment of many particular facts.
The very purpose of the processes envisaged by ss 23 to 25 of the Act is to enable the Minister to finally approve plans without having to be familiar with, and make his own assessments, of all of the matters that are involved. In short, the Minister is entitled to rely on the expert opinion of heritage consultants. In my view, the process would hardly be workable if it were otherwise.
However, in this case Mr Ilic relies on an added circumstance. In a sense, Mr Ilic contends that there is an exceptional reason which rendered reliance on the expert opinion unreasonable in this case. That reason is as follows. In addition to recommending Mr Ilic’s residence, the heritage consultants recommended the listing of a large number of other residences. Some of those like Mr Ilic’s, were not objected to; others were.
Of the residents who lodged an objection against the listing, very few (I think just five out of a hundred) eventually were recommended by the Adelaide City Council for listing. That is a disconcerting fact. It must be particularly worrying to residents or owners who for one reason or another did not lodge an objection. It, in my view, highlights the high level of subjectivity that must be involved in the designation of a place as a place of local heritage value.
However, the fact that ultimately after dealing with the objections, the Council only recommended designation of a small number of the residences subject to an objection (the challenged listings) does not lead to the conclusion that the Minister acted unreasonably in proceeding on the recommendations with respect to premises over which no objections were lodged. The fact that so many of the challenged listings were not ultimately recommended by the Council might suggest some problem with the way in which residences were recommended by the heritage consultants. On the other hand, it might illustrate a problem with the process by which the objections were dealt with.
Suffice to say, I can see no arguable basis upon which the mere fact of the Council’s decision not to recommend so many of the challenged listings necessarily denied the recommendation made by the heritage consultants any reasonable weight. In particular, in my view, the Minister was entitled to act on the basis that the lack of objection allowed him to more easily come to the conclusion based on the experts’ opinion. Indeed, that is the basis upon which courts regularly assess evidence and material put before them.
The grounds upon which the plaintiff sought to challenge the Minister’s decision were these. First, that the Minister failed to form any opinion or make any assessment that the plaintiff’s dwelling had the qualities set out in s 23(4) of the Act. In my view, the material, and the very making of the amendment, shows that the Minister formed an opinion. He formed that opinion on the basis of the heritage consultant’s expert assessment which was before him.
The second ground upon which the Minister’s decision is challenged is that the Minister either did not have any material to support his assessment or, alternatively, that he could not reasonably have formed the assessment on the materials before him. Plainly, for the reasons I have just given, the Minister did have some material before him. For the reasons I have just given, I conclude that it is unarguable that the Minister formed his assessment unreasonably. To put it in another way, it is unarguable that the Minister had no reasonable basis upon which he could be satisfied that Mr Ilic’s residence should be designated as a local heritage place.
The third ground is that the Minister failed to take into account relevant considerations, namely the considerations or some of the considerations at least in s 23(4). The material before the Minister informed him of the particular criteria under s 23(4) on which the heritage consultants had formed their assessment. The third ground is not arguable.
Finally, the plaintiff sought to challenge the Minister’s decision on the ground that he took into account an irrelevant consideration, namely the absence of a formal written objection. True it is that the absence of a written objection does not necessarily lead to the conclusion that the owner had made an informed decision accepting the heritage value of his or her dwelling. However, it remains material which enables the Minister to more readily act on the assessment of the expert that was put before him. This ground too is unarguable.
For those reasons, in my view the proposed challenge to the designation of the plaintiff’s residence is not arguable. I refuse permission.
As to the proceedings determined by my decision in [2010] SASC 139, I order that the plaintiff pay the first defendant’s costs. I do not make any order as between the plaintiff and the second defendant; that is, the second defendant is to bear its own costs. My reasons for departing from the ordinary rule as to costs are these.
First, both the first and second defendant appeared in support of the same position with respect to the answers to the preliminary questions. The first defendant, however, had the primary carriage of the position of the defendants. Wherever a plaintiff is met by several defendants who appear in the same interest, the Court is concerned that the plaintiff is not prejudiced by a duplicity of costs. Orders avoiding that are often made. None were made in this particular case, however, it is a legitimate concern of the courts in exercising the wide discretion on the question of costs. I mention that as a background consideration.
When the matter was argued, the written submissions made by both defendants on the preliminary questions, on the premise that the decision was an administrative one, were largely the same. Such oral submissions as were made by counsel for the second defendant, from recollection, were brief but were a repetition of the submissions of the first defendant.
However, the second defendant made written submissions and extensive oral submissions to the effect that the decision was a legislative one and was therefore necessarily dependent on the subjective satisfaction of the Minister. That submission was not supported by the first defendant. The second defendant was ultimately unsuccessful.
The second defendant’s submission involved the consideration of a significant number of authorities and took up a substantial amount of time in the hearing of the matter. It is probably because that argument was made that this matter went into a second day. If the ordinary rule as to costs were to be applied, then the result of the hearing extending into the second day would be that the plaintiff would have to pay the second defendant for two days counsel fees even though the hearing only went into the second day because of an argument on which the second defendant was unsuccessful. Moreover, the plaintiff would have to pay the first defendant an extra day’s counsel fees, although the first defendant, in all probability, only incurred the additional day’s hearing fees because of the unsuccessful argument made by the second defendant.
Those considerations, in my view, are sufficiently good reason to depart from the ordinary rule as to costs. The justice of the case is best met by simply making the order I proposed earlier, that is, that I will not order the plaintiff to pay the second defendant’s costs; the second defendant will bear its own costs. I reject the plaintiff’s application for payment by the second defendant of any costs either to it or to the first defendant. The effect of my orders are that the plaintiff will pay two sets of counsel fees in this matter. As it turns out, it will be to the first defendant’s counsel for the first and second day instead of being a counsel fee for the first defendant and a counsel fee for the second defendant for what would probably have been just a one-day hearing.
I have spoken of counsel fees. I do not mean to restrict the award to that. Plainly, there are associated solicitors’ attendances in addition to the counsel fees. I have referred to counsel fees only as a shorthand for the costs incurred for being in court on that day.
I order that the plaintiff pay the first defendant and second defendant costs of the hearing today on the application to amend the proceedings.
I dismiss the summons.