Mt Barker Properties P/L v District Council of Mt Barker & Anor No. Scciv-01-587

[2001] SASC 359

MT BARKER PROPERTIES PTY LTD  v  DISTRICT COUNCIL OF MT BARKER & ANOR
[2001] SASC 359

Land and Valuation Division

1. DOYLE CJ:            There is an application for an injunction to restrain the Minister for proceeding further with steps under the Development Act to deal with a proposal by the District Council of Mount Barker to amend its Development Plan. The Minister has approved the Plan Amendment Report, which I will refer to as the PAR, and is apparently about to gazette that approval declaring an amendment to the Development Plan to be an authorised amendment in exercise of a power under the Act, although I note that the actual declaration will be by the Governor, not by the Minister. The approval by the Minister is, I think, under s25(17), or perhaps another provision.

2. The history of the matter is on 3 April the plaintiff applied for an interlocutory injunction to restrain the Council from proceeding with a public meeting that evening, at which persons who had made representations relating to the PAR would be heard. That application was dismissed by Lander J, holding that if the meeting went ahead the plaintiff would still be entitled to the relief it seeks in the action.

3. On 4 April the plaintiff instituted this action seeking a declaration that the Council had acted contrary to the procedures prescribed by s25 of the Development Act and seeking an injunction restraining the Council from proceeding with the procedures under s25. The applicant later obtained an order adding the Minister as a defendant and sought a declaration that the acceptance by the Minister of the draft PAR pursuant to s25(9) was invalid on the ground that the PAR did not comply with, or had not complied with, the provisions of s25. I think the attack was directed to the PAR mainly.

4. Debelle J heard the application and on 27 July he dismissed it. On 9 August the plaintiff appealed from this decision.

5. The effect of the application before me is to seek to preserve the status quo, pending the hearing of the appeal. The application is made because the Minister has refused to bring a halt to the procedures under s25.

6. It appears that the plaintiff has not prosecuted the appeals as promptly as would have been desirable. Almost nine weeks have passed, but the appeal has not been set down. It’s possible that the appeal could have been heard this month if the plaintiff had acted more speedily, but on the other hand there is no reason why it could not be heard in November, in three weeks time. I appreciate that the plaintiff hoped to resolve its objections to the PAR, but to my mind it should have appreciated that the present situation might arise and could have been forestalled.

7. The process of amendment to a Development Plan affects the interests of many people residing or carrying on business in the area of the council. There is a broad public interest which is affected by these proceedings. The process should proceed with all reasonable expedition and the delay, to my mind, is a factor against the grant of the application but not decisive.

8. On the other hand, I accept that the plaintiff’s appeal raises an arguable point, although I would put it no higher than that, having in the time available read Debelle J’s decision.

9. The application is rather like an application for a stay of execution on a judgment and the usual rule is that there is no stay. Earlier cases suggested that to get a stay you must demonstrate exceptional circumstances but more recent decisions suggest the test is not so stringent. In any event, it is relevant to consider whether the refusal to grant a stay would render the appeal nugatory. In this case an important issue is where the refusal to order a stay would render the appeal nugatory.

10. I am not satisfied that it would, which is not to say I am deciding now that it would not, I am merely holding that I am not satisfied that the refusal to order a stay would render the appeal nugatory. Even if the Minister proceeds to gazette the amendment, it seems to me quite arguable that the plaintiff is at liberty to proceed with the appeal and, if successful, obtain the relief it seeks, subject only to the Full Court granting further consequential relief and quashing the amendment to the Plan, assuming it has been made by then.

11. So while I accept that there is an arguable point raised by Mr Hayes, I am not satisfied that the refusal of the order will render the appeal nugatory. By contrast, if I grant an injunction the process will come to a halt pending the hearing and determination of the appeal, and that affects the public interest.  But, once again, I have to acknowledge that the delay there should not be lengthy.

12. Mr Hayes also argued if the PAR is approved, the question of whether it has been validly made will not be justiciable, referring to the decision of the Full Court in Happy Valley Shopping Centre v District Council of Meadows (1981) 27 SASR 117. However, there are significant differences between the provisions of the current Development Act and the legislation under consideration there. The reasons given by Debelle J strongly suggest that the process of dealing with the PAR is justiciable, and this would not be affected by a decision by the Minister to approve the amendment and then gazette the amendment. I gather it was not argued before Debelle J by any party that the issues before him were not justiciable. Again, I acknowledge Mr Hayes’ point which seems to be that the decision by the Minister to approve the amendment and then the decision by the Governor to gazette the amendment changes things but, once again, while I accept there is an arguable point there, I am by no means satisfied that the point is sound. I note that the Minister has assured the court through counsel that she will not argue that the points are no longer justiciable if the Plan has been amended, but I note also that the Council was not prepared to give any such assurance.

13. The plaintiff is also concerned that if the amendment to the Plan is gazetted, an application may be made for planning approval for a shopping centre in Mount Barker, relying on the amendment to the Development Plan. The plaintiff fears that even if later the amendment is held invalid, the application will be dealt with on the basis of the Plan as amended being the law in force when the application was made, assuming the application is made before a decision allowing the appeal, and once again, assuming the ultimate decision is to allow the appeal.

14. Whether the application would be dealt with by reference to an invalid amendment is something that, again, I should not decide now. The point is arguable, I suppose. But a range of people may be interested in and advantaged or disadvantaged by the amendment being made now or being delayed. I do not think that it is right that the plaintiff’s commercial interests in delay should be treated as decisive. Moreover, it may yet be open to the plaintiff to seek an injunction to restrain the planning authority and the applicant in question from dealing with the application, if it is made. Again, I should not decide if such an application can be made or would succeed. I merely note the possibility.

15. In that event, the plaintiff, I think, would almost certainly have to give an undertaking as to damages if it were to obtain an injunction. I consider that would be the appropriate way for the plaintiff to deal with this issue.

16. In summary, the appeal raises an arguable point but not one that can be said to have strong prospects of success on the basis of my reading of Debelle J’s reasons. I am not satisfied that the gazettal of the amendment to the Plan will render the appeal nugatory, but I acknowledge it is arguable that may occur. The plaintiff has been slow in progressing its appeal contributing to the situation that it now faces. I am not persuaded that the interests of justice, or even the balance of convenience, favour preventing the Minister from dealing with the proposed amendment, bearing in mind that such an order could have effects on a range of people whom I cannot identify and effects I am unable to assess. There is a contrary general public interest in allowing the statutory process to continue. To my mind the court should only interfere in such a case if there is good reason to do so, and I am not satisfied in this case that there is and, accordingly, I refuse the application.