McKay v Alexandrina Council - [2003] SASC 167

IAN ROSS McKAY & ORS v ALEXANDRINA COUNCIL & ANOR
[2003] SASC 167
Land and Valuation Division

DEBELLE J In this application for judicial review the plaintiffs seek orders quashing a decision of the Alexandrina Council granting development consent to carry out development associated with the construction of a dwelling by a neighbour.
The grant of development consent was made on 23 January 2001. The application for judicial review was not made until 20 September 2002. As the application was made more than six months after the decision granting development consent, the plaintiffs have applied pursuant to Rule 98.06 for an extension of time within which to make the application. It is necessary to note the events leading to the application in order to determine both the application for extension of time and the issues on the application for judicial review.
The Events Leading to the Application
The first and second plaintiffs, Mr and Mrs McKay, own a house property at 24 Ocean Parade, Middleton. The third and fourth plaintiffs, Mr and Mrs Goudie, own a house property at 28 Ocean Parade, Middleton. The second defendant, Mr Chrisp, owns an allotment of vacant land between the two sets of plaintiffs at 26 Ocean Parade. Mr Chrisp seeks to erect a dwelling on his land. The plaintiffs allege that the location of the proposed dwelling and its method of construction will substantially reduce the coastal views they currently enjoy from their respective properties. In addition, the plaintiffs, and in particular the McKays, have concerns about other aspects of the proposed development.
Middleton is within the area of the first defendant, the Alexandrina Council (“the Council”). The second defendant, Mr Chrisp, purchased his land in 1999. It is an allotment within a Residential Zone prescribed by the Council’s Development Plan. Provided that it complies with certain conditions, a dwelling is a complying development in this zone. Mr Chrisp’s land slopes relatively steeply up from the Ocean Parade frontage to the rear. It also slopes from west to east across the allotment. As will be seen, Mr Chrisp proposes to construct a retaining wall on the eastern side of his land and will bring filling to the site in order to create a level site on which to construct the dwelling for which he has development consent.
I set out the main events leading to the present applications.

7 September 1999

Mr Chrisp lodged an application for provisional development plan consent to erect a dwelling. The proposal included the erection of a garage at the rear of the property to which access would be gained via a right of way at the rear of the property.

9 September 1999

The Council granted provisional development plan consent to construct the dwelling and garage.

11 April 2000

Mr Chrisp informed the Council that he intended to construct a retaining wall on the eastern boundary of his land and to introduce filling. The application for development consent in September 1999 did not disclose an intention to…

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: [2003] SASC 167
Decision Date: 4 June 2003

CaseChat Overview and Summary

The case of McKay v Alexandrina Council involved the McKays, who sought judicial review of a decision made by the Alexandrina Council regarding a development application. The dispute centred on the classification of a proposed retaining wall and filling as a Category 1 development, which the McKays argued was incorrect and should have been classified as a Category 3 development. The Council had granted development consent on 23 January 2001, which the McKays sought to have set aside on the basis of procedural and substantive errors.

The central legal issues the court had to address were whether the Council had followed the correct procedures under Section 38 of the Development Act 1993 in classifying the development, whether it had considered irrelevant factors, and whether the classification of the development was reasonable. The court also needed to determine whether the plaintiffs had reasonable prospects of success and if an extension of time to apply for judicial review was warranted.

The court found that the Council had failed to adhere to the prescribed procedures, as it had not determined the correct category for the proposed development. Additionally, the Council had considered an irrelevant factor in its decision-making process. The classification of the proposed retaining wall and filling as a Category 1 development was deemed unreasonable, and thus, the grant of development consent made on 23 January 2001 should be set aside. The court also noted that the plaintiffs had reasonable prospects of success and granted an extension of time for the application for judicial review, setting the deadline as 20 September 2002. Consequently, the court set aside the grant of development consent and highlighted the importance of planning authorities requiring detailed plans and conducting site inspections to avoid similar issues in the future.

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

DEBELLE J

In addition, before 23 January 2001, Mr Commerford knew that the McKays had a number of concerns about the retaining wall. A number of those concerns are reasonable. If the opportunity had presented itself, it was highly likely that, at least, the McKays would have lodged an objection. The decision that the retaining wall would be unlikely to be the subject of reasonable objection is, in my view, wholly unreasonable in the Wednesbury sense. For that reason too, the decision of the Council classifying the development as Category 1 must be set aside.Conclusion For these reasons,• the Council has failed to act in accordance with the procedures prescribed by s 38 of the Development Act 1993 in that it failed to determine to which category of development the proposed filling should be assigned;• the Council has had regard to an irrelevant factor and has acted unreasonably in determining that the proposed retaining wall should be classified as Category 1;• the proposed retaining wall and filling should have been classified as Category 3 developments.These grounds require that the grant of development consent made on 23 January 2001 be set aside. The examination of the question whether the plaintiffs have reasonable prospects of success leads to the conclusion that they will succeed on the application. Having regard to all of the other factors discussed earlier in these reasons, I am satisfied that the plaintiff should be granted an extension of time in which to make the application. Mr Chrisp is a party to this action. As already mentioned, he informed the Court through his counsel that he would abide the order of the Court. He took no part in the argument. For all of these reasons, I will make an order extending the time within which to make the application for judicial review to 20 September 2002. I will also make an order setting aside the grant of development consent made on 23 January 2001.Notice to Planning Authorities The facts of this application draw attention to the need for planning authorities to require reasonably detailed plans before +they consider whether to grant provisional development plan consent. Reasonably detailed plans may be necessary even for what, on its face, might be a Category 1 development. In addition, an inspection of the site is desirable. Such an inspection may disclose issues which have not been addressed in the application for development consent. In this case, the plans initially submitted in September 1999 were extremely sketchy. They did not address all of the problems of the building site. The proposed dwelling clearly required a level building site. The site has quite a significant slope and it would have been readily apparent on inspection that either excavation or filling or both was necessary to produce a level building site for the proposed dwelling. After an inspection, the Council could have required Mr Chrisp to submit more detailed drawings and ask him how he proposed to achieve a level building site. This would have enabled the Council to address all issues at once and would have avoided much of the present difficulty.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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7 September 1999	Mr Chrisp lodged an application for provisional development plan consent to erect a dwelling. The proposal included the erection of a garage at the rear of the property to which access would be gained via a right of way at the rear of the property.
9 September 1999	The Council granted provisional development plan consent to construct the dwelling and garage.
11 April 2000	Mr Chrisp informed the Council that he intended to construct a retaining wall on the eastern boundary of his land and to introduce filling. The application for development consent in September 1999 did not disclose an intention to…