Linke v Development Assessment Commission & South Australian Housing Trust
[2008] SASC 121
•2 May 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
LINKE v DEVELOPMENT ASSESSMENT COMMISSION & SOUTH AUSTRALIAN HOUSING TRUST
[2008] SASC 121
Judgment of The Honourable Justice Bleby
2 May 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - VALIDITY
Provisional Development Plan consent granted to the second defendant to demolish existing buildings on, and to develop, land for low cost multiple housing units – land adjacent to land owned by the plaintiff – application for judicial review to quash consent – whether relevant authority took irrelevant matters into consideration – validity and effect of land management agreement relating to car parking on the land – whether properly taken into account by relevant authority – whether compliance with principles and objection of Development Plan relating to car parking – validity of consent upheld.
Application for extension of time to bring judicial review proceedings – significant delay – reasons inadequate – prejudice to defendant – extension refused.
Development Act 1993 (SA) ss 33, 34, 38, 57, 57A, 84, 85; Freedom of Information Act 1991 (SA) 13, 14A; Consumer Transactions Act 1972 (SA); Supreme Court Civil Rules 2006 r 200, referred to.
Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115, [2007] SASC 356; Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, [2006] SASC 283; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied.
Buck v Bavone (1976) 135 CLR 110, discussed.
McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539, [1999] SASC 386, considered.
LINKE v DEVELOPMENT ASSESSMENT COMMISSION & SOUTH AUSTRALIAN HOUSING TRUST
[2008] SASC 121Land and Valuation Division
BLEBY J.
Introduction
On 27 September 2007 the Adelaide City Council issued a final development approval under the Development Act 1993 (SA) (“the Act”) for the second defendant, South Australian Housing Trust (“SAHT”), to construct 16 two-storey townhouse-style apartments on land situated at 26-34 Logan Street, Adelaide (“the subject land”). In doing so, it was acting pursuant to s 34(2) of the Act. The assessment of the development in respect of the Building Rules had been referred to the Council by the first defendant, the Development Assessment Commission (“DAC”), which was the relevant authority in relation to the proposed development. Under that action the Council was authorised to determine whether the development should be granted final approval.
The DAC had granted provisional Development Plan consent for the development on 14 December 2006.
The plaintiff, Mr Linke, is the owner of warehouse premises in Logan Street on land adjacent to the subject land, and immediately north of it. He had opposed the application for provisional Development Plan consent. On 19 October 2007, by a summons issued in this Court, he applied for orders for judicial review in the nature of certiorari to set aside the provisional Development Plan consent and, as a consequence, the final development approval.
On 19 December 2007, I dismissed the application for reasons to be published. These are those reasons.
The relevant background
As Mr Linke’s challenge turns on the validity of the provisional Development Plan consent granted by the DAC on 14 December 2006, and as these proceedings were not commenced until 19 October 2007, Mr Linke also seeks an order extending the time within which to make the application. That is because r 200(2) of the Supreme Court Civil Rules 2006 requires that the action must be commenced “as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date”. It is therefore necessary to review the history of the application for development approval, and Mr Linke’s involvement in it, as well as relevant elements of that approval.
Mr Linke was born, was educated and resided in Adelaide for a substantial portion of his life. After then living for about four years in Sydney, he has spent the past 30 years living overseas. He has, however, continued to own investment properties in Adelaide and visits Adelaide several times a year. He remains an Australian citizen. He purchased the property in Logan Street in March 2001. The premises have been leased. A portion of the property is used as a mechanical repair business and the southern portion, immediately north of the subject land, was leased as a furniture storage warehouse. At the time of the hearing this southern portion was vacant. Until 2006 Mr Linke was unaware of certain encroachments of his building on the subject land which are mentioned below.
The subject land at that time had also been used principally as a warehouse. Two portions of the boundary between Mr Linke’s land and the subject land comprised party walls. Other portions of the boundary did not. Those portions comprised a corrugated iron panel and some barred windows on a timber frame. The roof of Mr Linke’s building relied for support on steel columns erected on the subject land against the northern boundary. They therefore encroached onto the subject land. The boundary ran generally in an east-west direction, but one of the party walls included a rectangular protrusion of the boundary of approximately two metres for a distance of about 4.5 metres into Mr Linke’s land. This protrusion comprised an ablutions block being part of the subject land. The roof of Mr Linke’s warehouse encroached over this area and that portion was supported by steel columns against the southern wall of the ablutions block and in line with the other roof supporting columns.
Mr Linke first became aware of a proposal by SAHT to develop the subject land in February 2006 when he saw a letter advising of a proposal to demolish the warehouse on the subject land. The letter pointed out the nature of the encroachment and invited discussions about resolving the problem.
There had, in fact, been lodged with the DAC, two development applications on behalf of SAHT. One concerned the demolition of the existing warehouse and other buildings on the subject land. The other proposed two three-storey residential flat buildings, being one of a number of affordable housing initiatives in the city of Adelaide sponsored and supported by the State Government’s Affordable Housing Innovation Unit, SAHT, the Adelaide Bank Charitable Foundation, the Corporation of the City of Adelaide, and the Multi-Agency Community Housing Association (“MACHA”). MACHA is an association which assists low-income and welfare-dependent persons to obtain adequate and affordable accommodation. In documents supporting the application, it was said that the units’ occupants would consist primarily of individuals, adult sharers or small two to three person households. They would not be occupied by “traditional” families. After development by SAHT the land was to be transferred to MACHA.
Documentation accompanying the proposal also indicated that it was intended that the existing ablutions block be excised, with a view to transferring that land to the adjoining owner in order to allow for the boundary wall to be reconstructed and “made regular”. This would presumably be accomplished by replacing it with a straight boundary wall entirely on the plaintiff’s land, in substantially different form, in order to address structural and fire isolation issues, which would require it to be rebuilt in concrete block-work.
The proposal incorporated only six car parking spaces. The City of Adelaide Development Plan generally required, for this type of development, at least one car parking space for each new dwelling, and visitor parking spaces at the rate of one space for each four dwellings. Material was placed before the DAC on behalf of SAHT with a view to demonstrating that the car parking spaces to be provided were adequate for the particular development.
Mr Linke was concerned at both the cost and disruption of replacing his southern boundary wall, and at the failure of the proposal to comply with the car parking requirements of the City of Adelaide Development Plan, in an area of the city which he considered was already inadequately provided with off-street parking facilities.
For the purpose of s 38 of the Act, the proposed development was a Category 3 development. This meant that Mr Linke, as an adjoining owner, was entitled to receive notice of the application, to make representations to the DAC, and to appeal to the Environment, Resources and Development Court against the decision of the DAC.
On 30 May 2006 Mr Linke lodged written objections to each of the development applications. The objection to the demolition application concerned principally the demolition of the party wall. His objection to the construction turned principally upon the lack of car parking facilities and the low level of amenity for occupants of the proposed apartments.
As a result of objections to the development proposal, and changes which, in the meantime, had been made to the City of Adelaide Development Plan, a further application for development was lodged. This application still involved 16 dwellings, but reduced to two levels, and with a reduction in car parking spaces to five. The proposed building demolition did not involve the party walls. It was indicated that the steel columns supporting the warehouse roof would, if necessary, remain as an encroachment if there were no agreement with Mr Linke over reconstruction of the boundary wall “as will be required given the present and future building fire separation deficiencies”. The new development application did not require demolition of the party walls, the remaining boundary wall or Mr Linke’s supporting roof columns. The application also indicated that negotiations would continue for the transfer of the ablutions block area, on the northern boundary of the subject land, to Mr Linke and for other mutually beneficial rectification works. Any construction work involving a new southern boundary to Mr Linke’s premises would be independent of SAHT’s development application and would be the subject of a separate application. Documentation in support of the application indicated that there was still a solution available to the applicant in the event that no agreement was reached, leaving the encroaching structural columns within the rear boundaries of the residential dwelling sites abutting the common boundary, and with no interference with the existing party walls.
The car parking requirements of the City of Adelaide Development Plan had changed but, for this type of development remained, in substance, the same. Council-wide Objective 20 provides:
Objection 20: Accessible on-site parking to meet the needs of residents and visitors. [Emphasis in italics added].
Council-wide principle 41 provided:
41On-site car parking should be provided for low scale residential development in accordance with the car parking requirements set out in Table Adel/2 (disregarding infrequent, high-visitation events, such as parties, garage sales or auctions), taking account of:
(a) the number and size of proposed dwellings;
(b) availability of employment and centre facilities within walking distance;
(c) the anticipated mobility characteristics of the likely occupants; and
(d) availability of public transport and on-street car parking in proximity to the development.
This development was a low scale residential development as defined in the Development Plan. Table Adel/2, for this type of development required a minimum of one car parking space for each dwelling and one visitor space for each four dwellings. Compliance with those requirements would have required 20 off-street car parking spaces rather than the five provided.
Council-wide principle 252 provided that in a Residential Zone (which this was):
(a)adequate car parking should be provided within the site area of the development to meet the demand generated by the development;
(b) car parking should be provided in accordance with Table Adel/2; and
(c)car parking rates lower than the minimum in Table Adel/2 may be appropriate where there is readily accessible and frequent public transport in the locality or it can be demonstrate that a lower provision is warranted, such as for the following reasons:
(i) the nature of development;
(ii) existing heritage places on or adjacent to the development site which dictates the development of the site in a manner which hampers the provision of on-site parking;
(iii) the opportunity to exploit shared car parking areas between uses based upon compatible hours of peak operation; or
(iv) suitable arrangements for any parking shortfall to be met elsewhere or by other means.
[Emphasis added].
In support of the application there was provided a survey by MACHA of car ownership by tenants of other MACHA properties. The survey showed that in 64 dwellings in the City of Adelaide with a total of 12 car parking spaces and 64 tenants, only three of the tenants, or 4.7%, had vehicles. In one development comprising three 2 bedroom dwellings, two car parks had been provided which had never been used in six years. Based on the survey the proposal was likely to attract a maximum of three households with vehicles.
One effect of the changes to the application was that, for the purposes of s 38 of the Act, the application was now for a Category 2 development. This still enabled Mr Linke to make representations to the DAC, but did not allow him to appeal against the decision of the DAC. He lodged a written objection on 10 October 2006. Once again, his objections were largely based on the amenity of the proposal, and what were said to be unacceptable car parking arrangements. On 23 November 2006, oral representations were made to the DAC by counsel on behalf of the plaintiff.
The DAC sought and obtained further information from SAHT. There were some minor amendments to the plan and, on 11 December 2006, SAHT entered into a land management agreement with the Adelaide City Council in accordance with Part 5 of the Act.
In the land management agreement, SAHT is described as “the Owner”, and Adelaide City Council is described as “the Council”. The operative part of the agreement provided as follows:
2. Undertakings of the Owner
2.1 The Owner shall not cause suffer or permit the Land to be used for any purpose other than the housing of people with low demand for on site car parking.
2.2 The Owner shall ensure that any resident who owns a car has a car parking space on the Land that is reserved and designated for the exclusive use of that resident.
2.3 The Owner shall not lease a residence to a person who owns a car and needs to park that car in the vicinity of the residence unless there is a car parking space available on the Land that can be reserved for that person’s exclusive use.
Clause 4 provided that the agreement should not come into operation until such time as the DAC had granted development approval of the application. Clause 9 required that the agreement be registered as a Deed and that a memorial thereof be entered on the certificate of title for the subject land. Clause 8 provided:
8. Variation and Waiver
8.1 This Deed may not be varied except by supplementary Deed signed by the Council and the Owner.
8.2 The Council may waive compliance by the Owner with the whole or any part of the obligations of the Owner herein contained provided that no such waiver shall be effective unless expressed in writing and signed by the Council.
It will be necessary to return to the terms of this agreement. Provisional Development Plan consent was given on 14 December 2006 and included the following condition:
2.That the Land management agreement executed on 11 December 2006 between the Corporation of the City of Adelaide and the South Australian Housing Trust to ensure that the residents in the dwellings proposed on the land who own motor vehicles are provided with onsite car parking spaces shall be registered on the certificate/s of title for the whole of the land in accordance with clause 9 of the Land management agreement as soon as practicable following the grant of this provisional development plan consent.
The plaintiff was notified of the DAC’s decision by letter dated 20 December 2006.
Prior to the issue of the provisional Development Plan consent there had been discussions between representatives of Mr Linke and SAHT concerning the effect that the project would have on the boundary wall between the properties. Those negotiations continued into 2007. It is apparent from a letter from Mr Linke’s solicitors to the solicitors for SAHT, dated 6 February 2007, that Mr Linke was proposing an application for judicial review proceedings in respect of the decision of the DAC. The letter stated that, if it became necessary, an application for interim injunctive relief would be sought to restrain SAHT from demolishing the party wall and from taking any action which might interfere with the columns which support the plaintiff’s roof, pending final determination of the proposed judicial review proceedings.
At a meeting on 5 February 2007 there had also been mention of car parking and other planning issues relating to the proposed development, but there had been, and thereafter there were, no negotiations as to how those issues might be resolved. Subsequent discussions and correspondence appear to have related solely to the question of the replacement of the boundary wall. For example, on 22 February, the solicitors for SAHT wrote to Mr Linke’s solicitors offering to contribute a certain sum towards replacement of the wall. That was entirely independent of, and was not contingent upon, settlement of any judicial review proceedings that Mr Linke might institute.
The next step in the Development Approval process was an application for Building Rules consent for both the demolition of the existing buildings and the construction of the new development. In the course of applying for Building Rules consent to the demolition of the existing buildings, SAHT made it clear that the demolition would not affect the integrity of the party walls, the existing boundary wall, or the structural support of the plaintiff’s warehouse roof. That was also confirmed in an email from SAHT’s solicitors to the plaintiff’s solicitors, dated 10 April 2007, attaching a copy of SAHT’s engineering advice. On 9 March 2007, development approval was given for demolition of the existing buildings. A copy of that approval was sent by SAHT’s solicitors to the plaintiff’s solicitors on 14 March 2007. The demolition commenced on 28 March 2007.
Building Rules consent was given to the proposed development on 19 April 2007. There were further negotiations between the parties and, on 24 April 2007, officers of SAHT believed that agreement had been reached with Mr Linke in respect of the replacement wall. However, that appears not to have been so.
Nothing further seems to have happened between the parties until 13 June when the solicitors for SAHT wrote to Mr Linke’s solicitors enquiring whether they were still engaged by him, pointing out their client’s understanding as to the agreement they thought had been reached in April, and stating that if there were no agreement, SAHT would proceed with the development and would leave Mr Linke to attend to the construction of a fire wall, without any assistance from SAHT. They requested Mr Linke to remove the encroachment over the ablutions block, pointing out that this would require an alteration to the roof structure of the building. The letter concluded:
If we do not receive an indication in writing from Mr Linke within 14 days of the date of this letter as to what measures Mr Linke intends to undertake to remove the encroachment, our client will put in train the necessary steps towards enforcing the removal of the encroachment.
The time limited by r 200(2) of the Supreme Court Civil Rules, within which an application for judicial review could be brought in respect of the provisional Development Plan consent, expired on 14 June 2007.
There was a further meeting on 25 June at which the plaintiff apparently accepted SAHT’s offer to contribute to a new fire rated dividing wall between the two premises. No planning issues relating to the proposed development were discussed.
On 27 June 2007, SAHT’s solicitors sent a letter to Mr Linke’s letting agent, who had been party to the negotiations, setting out their understanding as to the terms of the agreement. However, it seems from subsequent email correspondence over the next couple of months that no agreement could be reached as to the detailed terms of a contract to build the wall, or how and when payment by the plaintiff was to be made. During this time, Mr Linke was out of Australia and was in the process of changing solicitors.
There seems to have been no immediate contact between Mr Linke’s new solicitors and SAHT, or its solicitors. On 7 September 2007 Mr Linke’s solicitors made an application, pursuant to s 13 of the Freedom of Information Act 1991 (SA), to both the Adelaide City Council and the DAC for access to documents held by them relating to SAHT’s development application. The DAC was unable to comply with the request and extended the time to apply, under s 14A of that Act, to 9 November 2007.
On 27 September 2007, final development approval was given for the construction of SAHT’s development. Mr Linke’s solicitors were plainly aware of that approval when they wrote a letter, dated 15 October 2007, to SAHT’s solicitors, giving notice that they were instructed to institute proceedings, “to inter alia, challenge the validity of the development approval and the provisional Building Rules consent and to seek a declaration regarding the common wall on the boundary with our client’s property”. That was the first mention of any challenge to the development approval since the letter of 6 February 2007 from Mr Linke’s former solicitors. As mentioned above, these proceedings were commenced on 19 October 2007.
In the meantime, construction work on the subject land had commenced. By the time of the hearing the footings and concrete slabs had been poured for the buildings. The ground floor block work was almost complete for the southern building and had commenced on the northern building. SAHT estimated that by the end of December 2007 the value of work completed on the site would be of the order of $670,000 (excluding GST) of an expected total design and construction cost of $2.3m (excluding GST). Approximately $300,000 in construction costs had been incurred after June 2007. SAHT was also concerned that interrupted and delayed construction would discourage those bodies financing the project from further participation, thereby threatening the viability of the project.
SAHT sought to tender an affidavit of Thomas Matthew Woodard sworn on 13 December 2007 as to matters of prejudice to those seeking affordable housing if the project were disrupted or delayed. I admitted the affidavit de bene esse. I now reject the tender of the affidavit as it is not relevant to any prejudice to SAHT or to any other aspect of the litigation. I have not relied on it.
The grounds of the application
In his inter partes summons Mr Linke sought a number of orders relating to the maintenance of the structural supports for his building and upkeep of common and party walls on the boundary. At the hearing those matters were abandoned. Effectively, the relief claimed was limited to setting aside the provisional Development Plan consent and, as a consequence, the final development approval, with a consequent declaration that the development approval was invalid and of no effect, an injunction restraining SAHT from undertaking unauthorised development and an order extending the time within which to make the application.
The grounds on which Mr Linke sought to have the provisional Development Plan consent set aside, as stated in his affidavit, were as follows:
1.In granting the development approval issued for the construction of the apartments the Commission erred in law, took into account irrelevant considerations and failed to address the correct planning question by purporting to address the inadequate car parking by the condition relating to the Land management agreement.
2.That the Land management agreement is invalid.
3.That insofar as the Trust has intimated to me that it proposes to construct the apartments entirely set back from the common wall on our boundaries, the proposal differs from the proposal that was notified to me and upon which I made Representations. Accordingly I contend that the Provisional Development Plan Consent, and/or the Building Rules Approval and the Development Approval in respect of the Second Apartment Application was invalid, or alternatively that the Trust is threatening to undertake development in a way which is inconsistent with the approvals obtained by it.
4.That the DAC erred in granting the approval without taking into account or ensuring that adequate provision was made for the structural soundness and compliance with legislative requirements of the remainder of the building.
Grounds 3 and 4 can be disposed of quite shortly. They were not argued at the trial. The documentation associated with SAHT’s revised application accords with the proposals to which consent was given and on which Mr Linke, by his counsel, made representations to the DAC. There is no substance in ground 3.
There is no substance in ground 4, as it was made clear throughout the process that SAHT’s proposed development was quite independent of and did not rely in any way upon resolution of any dispute that Mr Linke may have had with SAHT about the party walls, the remaining parts of the boundary or the structural support for his roof.
The substance of Mr Linke’s complaint and of his argument as to the validity of the provisional Development Plan consent turned solely on the question of inadequate car parking and the alleged invalidity of the land management agreement.
Validity of the provisional Development Plan consent
It is convenient to consider the plaintiff’s argument as to the validity of the provisional Development Plan consent before addressing the question of extension of time.
At the core of the plaintiff’s submissions was an attack on the validity of the land management agreement and the DAC’s apparent reliance on it. Land management agreements are the subject of Part 5 of the Act. So far as is relevant, a council may enter into an agreement with the owner of land within the area of the council, such agreement “relating to the development, management, preservation or conservation” of the land.[1] The council, in considering whether to enter into an agreement and in considering the terms of the agreement, must have regard to the provisions of the appropriate Development Plan.[2]
[1] Development Act 1993 s 57(2).
[2] Ibid s 57(2a).
A land management agreement must be registered in accordance with the regulations if it is to have any force or effect.[3] This is not the same as registration on the relevant instrument of title. However, in order to be effective, an agreement must be “noted” on the relevant instrument of title,[4] and when noted, the agreement is binding on the current owner of the land from time to time.[5]
[3] Ibid s 57(2b).
[4] Ibid s 57(6).
[5] Ibid s 57(7).
The existence of an agreement “may be taken into account when assessing an application for a development authorisation” under the Act.[6]
[6] Ibid s 57(12).
Section 57A of the Act provides that a council may enter into an agreement with a person who is applying for a development authorisation that will, in the event that the relevant development is approved, bind the applicant, and any other person who has the benefit of the development authorisation and the owner of the land. Section 57A(3) requires that parties proposing to enter into an agreement must have regard, among other things, to the provisions of the appropriate Development Plan. Such an agreement must also be noted on the relevant instrument of title,[7] and when noted the agreement is binding on subsequent owners of the land.[8]
[7] Ibid s 57A(10).
[8] Ibid s 57A(15).
A land management agreement may be enforced in the same manner as a breach of the Act by the various processes referred to in ss 84 and 85 of the Act. It is not necessary to elaborate on such provisions for present purposes.
I have already made reference to the relevant parts of the land management agreement entered into by SAHT and the Adelaide City Council in this case. The criticisms of the agreement by Mr Roder, counsel for Mr Linke, are well justified. The key phrase in clause 2.1, “people with low demand for onsite car parking” is almost incapable of adequate definition. Any tenant who owns a car is likely to provide a demand for onsite car parking. Taken literally clause 2.1 may mean that no dwelling can be occupied by any person who owns a car. If that is not correct, the phrase is still uncertain, vague and difficult, if not impossible, to enforce.
Clauses 2.2 and 2.3 refer to a person “who owns a car”. Taken literally, it would exclude any other means by which a person may have access to a car. One may well ask what the word “owns” in this context means given rights to possession of a car which may arise under various types of consumer contracts, including consumer leases, recognised by the Consumer Transactions Act 1972 (SA).
While clause 2.3 may impose some obligation on the building owner at the time of letting a residence, there is nothing to prevent a lessee from subsequently acquiring a vehicle in circumstances where all existing parking places are reserved for the exclusive use of other residents. The building owner would be unable to comply with clause 2.2 in circumstances over which it has no control.
However, it was self-evident that, in any event, little weight could be placed by a planning authority on the terms of the agreement, even if they were enforceable, because clause 8 of the agreement provided that it could be varied at any time by supplementary deed between the Council and the owner, and that the Council could, in any event, waive compliance by the owner with the whole or any part of the obligations of the owner contained in the agreement.
As an agreement which was apparently supposed to create enforceable rights between two parties, it does no credit to those responsible for its compilation and drafting.
Nevertheless, it purported to be a land management agreement, the existence of which could be taken into account by the DAC when assessing SAHT’s application.[9] It had its obvious weaknesses. Notwithstanding those weaknesses, the DAC could properly have regard to the fact that it was an expression of intention on the part of SAHT, which would become binding on MACHA upon transfer of the land, to endeavour to give effect to its apparent intent, namely to limit the number of occupants of the dwellings who had access to motor vehicles. The genuineness of that intention could be seen from the experience of MACHA in relation to other similar properties in the city of Adelaide. It was also relevant that the Adelaide City Council was a party to the agreement. That Council was responsible for the implementation of the City of Adelaide Development Plan and was also responsible for the provision and regulation of on-street parking. It could be assumed, perhaps, that the Council would be slow to waive or consent to vary the agreement by way of relaxation of its provisions.
[9] Development Act 1993, s 57(12).
It cannot be said that the DAC erred in taking the agreement into account and in giving whatever weight to it that it might or might not carry. There was other, and perhaps more significant, information before the DAC as to the nature of the intended owner of the development, its intended tenants and the likelihood of them owning or having access to a motor vehicle which would justify a departure from the requirements of Table Adel/2 of the Development Plan.
The obligation of the DAC was to assess the development against the provisions of the City of Adelaide Development Plan.[10] I refer to but do not here repeat what I said about the role of a Development Plan and the application of its principles in Town of Gawler v Impact Investment Corporation Pty Ltd.[11] In short, the provisions of a Development Plan are, generally speaking, directory and persuasive, and particular principles may, but should only, be departed from for good reason.
[10] Development Act 1993, s 33(1).
[11] (2007) 99 SASR 115, 130-134, [2007] SASC 356 at [70]-[82].
Even if Table Adel/2 was unqualified as to its car parking requirements, council-wide principles 41 and 252 were not cast in mandatory terms. Indeed, within both principles, in the passages which I have emphasised, there was substantial room for the exercise of a discretion by the DAC having regard to the needs of residents and of visitors to the premises, the car parking demand generated by the development, the other matters listed in principle 41, the availability of public transport, the nature of the development and its occupants and other matters, of which the matters listed in principle 252(c) were examples but were not exhaustive. The MACHA survey to which reference has already been made was, no doubt, a significant factor.
It is difficult to see what additional weight the land management agreement could have added other than as a statement of intention binding on SAHT and, upon noting on the instrument of title, on its successors in title. Condition 2 of the provisional Development Plan consent did not give any added force or effect to the land management agreement. Neither did it indicate that the DAC placed any greater weight on it than its terms would suggest. The agreement was a matter which the DAC could take into account even with all its defects. Condition 2 merely ensured that the existing obligation under s 57A of the Act to have the agreement noted on the relevant instrument of title would take place as soon as possible after the grant of provisional Development Plan consent. It did not alter in any way the nature of the development so as to offend any of the principles discussed in McKenzie Constructions Pty Ltd v Development Assessment Commission.[12]
[12] (1999) 74 SASR 539, 546-551, [1999] SASC 386 at [34]-[60].
It is not possible to say how much weight the DAC gave to the land management agreement. However, the giving of inadequate weight to certain matters and undue weight to others does not establish an error of law which will justify this Court to interfere by way of judicial review.[13] In Buck v Bavone[14] Gibbs J discussed the situation of a statutory authority being entitled to take action if satisfied of the existence of certain matters specified in the statute. He said:
Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.[15]
[13] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [1999] HCS 21.
[14] (1976) 135 CLR 110.
[15] Ibid, 188-199.
There was no suggestion of the DAC acting other than in good faith or of it acting arbitrarily or capriciously. The real complaint of Mr Linke was that it took an irrelevant matter into account, namely what was claimed to be an unenforceable land management agreement. Even with its limitations, the DAC was entitled to take the agreement into account. Whether the parking space requirements of the Development Plan were complied with was largely a matter of opinion and of weight to be given to a number of relevant factors. As Gibbs J observed, in those circumstances it is difficult to show that the DAC has erred by taking an irrelevant matter into account. It cannot be said that it was a decision which could not reasonably have been reached by the DAC. It cannot be said that the DAC relied solely on the land management agreement to the exclusion of other relevant material. In those circumstances Mr Linke’s attack on the validity of the decision of the DAC must fail.
Application for extension of time
At the time when Mr Linke lodged his objections to the revised applications for provisional Development Plan consent, he was or should have been aware that the development, if approved, was capable of going ahead quite independently of any agreement that might or might not be reached between him and SAHT as to a new boundary wall or support for the roof of his warehouse. That position is confirmed by advice received by his solicitors during the course of the application for Building Rules consent.
The negotiation that he or his agents undertook with SAHT and its representatives concerned almost exclusively matters concerning the boundary wall and the support of his roof and their replacement. The only threat of judicial review proceedings was contained in the letter from his then solicitors of 6 February 2007. There was no attempt by Mr Linke or his representatives to negotiate any solution to Mr Linke’s alleged concerns over parking spaces or any other aspects of alleged non-compliance with the Development Plan. Following the letter of 6 February there were in fact further negotiations and correspondence, not as to any planning merits of the proposal, but solely related to the boundary wall and associated matters. In retrospect, the threat in the letter of 6 February can be seen as no more than a negotiating tactic to try and improve Mr Linke’s bargaining position with respect to the boundary wall.
During this time Mr Linke was or ought to have been aware that Building Rules consent and final development approval had been granted for demolition of buildings on the subject land in a manner not affecting the existing boundary structures or roof support of his warehouse. After 6 February the only other threat of litigation came from SAHT in the letter from its solicitors dated 13 June concerning removal of the encroachments of Mr Linke’s building on the subject land.
The six month time limit having expired on 14 June, the first indication since 6 February 2007 of any judicial review proceedings came from Mr Linke’s new solicitors by their letter dated 15 October 2007, followed four days later by the inter partes summons.
SAHT might, in all the circumstances, be pardoned for thinking that the only real concern of Mr Linke was over the boundary wall arrangements, and that any concerns he may have had about the nature of the development had disappeared. SAHT had been aware of Mr Linke’s threat of litigation in February 2007 followed by complete silence on the issue thereafter. Officers of SAHT were aware of the time limitation imposed by r 200(2). By then, it was entitled to and did assume that no further attempt would be made to prevent the development from going ahead. It continued to obtain further architectural, engineering and building advice and in fact commenced construction on the faith of what was apparently an unchallenged development approval. In doing so it has suffered substantial prejudice by the expenditure of significant amounts of money in construction which, if Mr Linke were to be successful in his action, would have been entirely wasted. There is also the prospect that significant interruption or delay by legal proceedings or by a declaration of invalidity, even if curable, might well dissuade sponsors from further support of the project.
Given the terms of r 200(2) of the Supreme Court Civil Rules, the delay was significant. Mr Linke relies on his participation in extensive negotiations to see whether a consensual resolution could be reached on other issues concerning the common boundary and roof support. Had they been resolved, they would not have overcome Mr Linke’s objection to the development based on the number of car parking spaces. His challenge to the validity of the provisional Development Plan consent could have proceeded while negotiations on the other issues also proceeded. They were not interrelated. Other than his desire to extend negotiations on those other issues, Mr Linke has offered no explanation as to why the proceedings were not commenced before the time limit expired. If I am right about the threat being no more than a negotiating tactic, it cannot be used as a reason to extend the time. The time limit is there for a reason. Mr Linke was aware of the grounds available to him to mount the challenge. If he intended to do so, it behoved him to act expeditiously.
In Hall & Ors v City of Burnside & Ors[16] this Court had the opportunity to consider the effect of the predecessor to r 200(2) which, in substance, was in the same terms. Doyle CJ said:
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that quite apart from the six month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
I do not suggest that the Judge overlooked this point. I merely emphasise that when considering whether the interests of justice require that an extension be granted (as the plaintiffs had to demonstrate), substantial weight should be given to the fact that the time limit has been imposed, and to the public interest and any relevant private interest (here, the interests of City Apartments) in the validity of the decision after the expiry of the limitation period.[17]
[16] (2006) 245 LSJS 440, [2006] SASC 283.
[17] Ibid at 445, [47]-[51].
In this case there was a substantial public interest in an early assurance that the decision of the DAC could no longer be subject to legal challenge. There was no countervailing public interest based on the importance or significance of the questions that Mr Linke wanted resolved in this litigation. The decision on the parking spaces question was one the possibility of which was contemplated by the Development Plan, and depended upon the specific circumstances being considered by the DAC. The land management agreement had its defects. They were not defects which went to the core of the DAC’s decision.
In short, the length of the delay was significant; the reasons for the delay were inadequate; the prejudice to SAHT as a result of extending the time is significant; and the plaintiff had no real prospect of success. Accordingly, I would, in any event, have refused the application for an extension of time within which to commence the proceedings.
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