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Moyes & Anor v J & L Developments & Anor

Moyes & Anor v J & L Developments & Anor

Case [2004] SASC 319 7 October 2004

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SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
MOYES & ANOR v J & L DEVELOPMENTS & ANOR
Judgment of The Honourable Justice Debelle
7 October 2004
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - REFUSAL AND REASONS FOR REFUSAL
Development Application - two-storey dwelling - whether proposal complied with Development Plan - relevant criteria - errors of principle by Commissioner in the Environment, Resources and Development Court - appeal allowed.

ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - PROCEDURAL FAIRNESS - RIGHT OF PARTY AFFECTED TO BE HEARD
Procedural fairness - amendments to proposed development propounded by court hearing appeal - whether breach of rules of procedural fairness - relevant criteria - perception of prejudgment - no opportunity to be heard - held to be breach of rules of procedural fairness.
Development Act 1993 s 35(2); Environment, Resources and Development Court Act 1993 s 21, referred to.
City of Marion v Becker (1973) 6 SASR 13; City of Mitcham v Freckmann (1999) 74 SASR 56; SA Housing Trust v Development Assessment Commission (1994) 63 SASR 35; City of Charles Sturt v Hatch [1999] SASC 523; R v Milk Board; ex parte Tomkins [1944] VLR 187; Babalis v City of Adelaide (1985) 38 SASR 450; Johnson v Johnson (2000) 201 CLR 488; R v Watson; ex parte Armstrong (1976) 136 CLR 248; R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546; Kioa v West (1985) 159 CLR 550, applied.
Opal Inn Pty Ltd v District Council of Coober Pedy (2001) SASC 190, distinguished.
Hennig & Co Pty Ltd v South Australian Planning Commission (PAT No 405 of 1992); Twist v Randwick Municipal Council (1976) 136 CLR 106; NCSC v News Corporation Ltd (1984) 156 CLR 296; Re JRL; Ex Parte CJL (1986) 161 CLR 342, considered.

MOYES & ANOR v J & L DEVELOPMENTS & ANOR
[2004] SASC 319
Land and Valuation Division

DEBELLE J This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court.
The respondent J & L Developments Pty Ltd (“J & L Developments”) applied to the Adelaide Hills Council (“the Council”) for provisional development plan consent to construct a two-storey dwelling and associated development at Birch Road, Stirling. Two sets of neighbours who occupy adjoining land affected by the proposed development, Mr and Mrs Moyes and Mr and Mrs Brooks, lodged representations with the Council objecting to the proposed development. The Council refused to grant development consent. J & L Developments appealed to the Environment, Resources and Development Court (“the Environment Court”) against the Council’s decision.
The appeal in the Environment Court was heard by a Commissioner of that court who, on 5 April 2004, allowed the appeal and granted provisional development plan consent subject to 17 conditions. From that decision Mr and Mrs Moyes and Mr and Mrs Brooks have appealed…

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.

Continue reading Moyes & Anor v J & L Developments & Anor

Details

AGLC: Moyes & Anor v J & L Developments & Anor [2004] SASC 319
Case: [2004] SASC 319
Decision Date: 7 October 2004

CaseChat Overview and Summary

The case of Moyes & Anor v J & L Developments & Anor involved a dispute over a development application for a two-storey dwelling. The primary issue was whether the proposal complied with the Development Plan and, specifically, whether the refusal of development consent was justified. The case was heard in the Court of Appeal of the Supreme Court of Queensland.

The legal issues before the court included whether the proposal complied with the Development Plan and the relevant criteria for granting development consent. Additionally, the court had to determine whether there was a breach of procedural fairness in the way the application was handled, particularly whether the applicants had an opportunity to be heard after amendments to the proposed development were made.

The court found that the Commissioner's decision to refuse the development consent was based on errors of principle. The Commissioner had concluded that the proposal was sufficiently at variance with the Development Plan to warrant refusal, but the court held that this was an incorrect application of the relevant criteria. The court also found that there was a breach of procedural fairness because the applicants were not given an opportunity to be heard after the court had made amendments to the proposed development, which led to a perception of prejudgment.

The court allowed the appeal and set aside the decision of the Commissioner. The appeal was remitted to the Commissioner for reconsideration in light of the court's findings. The final orders included setting aside the decision of the Commissioner and remitting the matter for reconsideration, without costs.

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

The Council’s reasons for refusing development consent were“1The development will prejudice the residential amenity of the locality by its bulk, appearance and scale resulting from the siting of the dwelling, the filling of the land and the location, extent and height of retaining walls contrary to Country Living Zone Principle 2.2The scale of the development and its appearance is not in keeping with that established in the locality which is characterised by low retaining walls and terraced landscaped embankments contrary to Country Living Zone Principle 27.3The proposed retaining walls along the southern and eastern boundaries of the subject land will, because of their scale, location and height, adversely affect the character and amenity of the locality contrary to Council Wide Principles 20(c), 77 and 87.4The filling of the land to a maximum height of 5.1 metres at the south eastern corner does not keep filling to a minimum, exceeds 1.5 metres, fails to preserve the natural form of the land and is being undertaken for reasons other than to reduce the visual impact of buildings contrary to Council Wide Principles 8 and 10.5The proposed development fails to adequately take account of the topographic conditions of the site contrary to Council Wide Principle 82.6The proposed location of the dwelling will unreasonably impair privacy for adjacent properties contrary to Council Wide Principle 78.7The development will not maintain the attractiveness of the area as a place in which to live as the siting of the dwelling will cause inappropriate overshadowing of adjacent dwellings and the dwelling is sited on a filled site contrary to Council Wide Principles 87 and 88.8The open space provided around the dwelling on its southern and eastern sides is insufficient and inappropriate having regard to the locality contrary to Council Wide Principles 89 and 92.”In other words, the Council believed that the size and bulk of the proposed dwelling, the large retaining walls, its location, the extent of filling and the interference with landform were contrary to the Objectives and Principles in the Development Plan and adversely affected the amenity of neighbours and the character and amenity of the localityThe Commissioner’s Decision After hearing the evidence and examining the proposed development, the Commissioner published a memorandum on 3 February 2004 in which he concluded that the proposal was sufficiently at variance with the Development Plan to warrant refusal. He expressed his reasons in these terms:“ As currently presented to the Court, the proposal is not acceptable and is clearly sufficiently at variance with the Development Plan as a whole, to warrant refusal.The design of the development is not sufficiently sensitive to the relationships with buildings (dwellings) and spaces on adjoining land to the south and east and would cause unacceptable impacts. It is inconsistent with and will not enhance the character and amenity of the locality.”Those conclusions provided proper grounds on which to dismiss the appeal by J & L Developments: see s 35(2) of the Development Act 1993 which provides that a development assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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Citations

AGLC Citation

Moyes & Anor v J & L Developments & Anor [2004] SASC 319

Most Recent Citation

Viscariello v Macks (No 4) [[2022]] SASC 30

Cases citing this decision · 2 of 2 shown

Viscariello v Macks (No 4)
[2022] SASC 30 Para 25

…o the point of being trite but instances where they have been described have been referred to by counsel. In Moyes & Anor v J & L Developments & Anor [2004] SASC 319, Debelle J said at [76]: The rules of procedural fairness require, among other things, that a party has due notice of an issue and a proper opportuni…
Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner
[2016] SASCFC 107 Para 9

…y conduct is related to an action brought by a company of which the appellant was a director pursuant to the Fences Act 1975 (the Fences Act ). [2] [2004] SASC 319. Background to the Development Action…

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Cases cited in this decision · 9 of 9 shown

Johnson v Johnson
[2000] HCA 48 Para 12

…hat the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11] and the cases there cited. The test is grounded on the fundamental principle that justice should both be done and be seen to be done. It is b…
City of Mitcham v Freckmann
[1999] SASC 234 Para 17

…failed to distil from the relevant provisions of the Development Plan whether they speak for or against the proposal. In City of Mitcham v Freckmann (1999) 74 SASR 56 at 62, this Court described the process to be undertaken by a planning authority in these terms: “Section 33 of the Development Act 1993 states the t…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 13

…At the same time the reasonable apprehension of bias must be firmly established: Re JRL; Ex Parte CJL (1986) 161 CLR 342 per Mason J at 352 and the cases there cited. As the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553 - 554: “Those requ…
Kioa v West
[1985] HCA 81 Para 14

…principles of procedural fairness are flexible. They do not sit in watertight compartments: see generally the discussion of Brennan J in Kioa v West (1985) 159 CLR 550 at 613 – 615. In that same decision (at 584 – 585) Mason J observed: “What is appropriate in terms of natural justice depends on the circumstances of…
National Companies and Securities Commission v News Corporation Ltd
[1984] HCA 29 Para 11

…must be acknowledged that the rules of procedural fairness vary according to the circumstances of any particular case: NCSC v News Corporation Ltd (1984) 156 CLR 296. There was no statutory provision which qualified the operation of this aspect of the rules of procedural fairness in this case.…
Twist v Randwick Municipal Council
[1976] HCA 58 Para 11

…ty of Adelaide (1985) 38 SASR 450 at 462 – 464. This rule is subject to any statutory provision to the contrary: Twist v Randwick Municipal Council (1976) 136 CLR 106. In addition, it must be acknowledged that the rules of procedural fairness vary according to the circumstances of any particular case: NCSC v News Cor…
R v Watson; Ex parte Armstrong
[1976] HCA 39 Para 12

…easonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision: R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 263 approved in Johnson v Johnson (supra) at [12].…
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group
[1969] HCA 10 Para 13

…Mason J at 352 and the cases there cited. As the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553 - 554: “Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspici…
City of Charles Sturt v Hatch
[1999] SASC 523 Para 4

…nd detriments of the application by reference to the Development Plan: City of Mitcham v Freckmann (1999) 74 SASR 56; City of Charles Sturt v Hatch [1999] SASC 523. Where existing development does not conform to the Development Plan, greater care must be exercised when applying the Development Plan. As Bleby J sai…

Legislation cited in this decision · 3

Development Act 1993 (SA)
35(2) 2 mentions (from Para 6)
Development Regulations 1993 (SA)
1 mention (from Para 17)
Environment, Resources and Development Court Act 1993 (SA)
21 1 mention