Mt Gambier Shopping Centre Pty Ltd v Village Fair Shopping Centres (SA) Pty Ltd and City of Mt Gambier No. SCGRG 95/2338 Judgment No. 5441 Number of Pages 27 Local Government Building Control
[1996] SASC 5441
•25 January 1996
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J
CWDS
Local government - building control - Application for judicial review - provisional development plan consent given by Council to first defendant to extend existing shopping centre situated in City Centre Zone where it was neither a complying nor non-complying development - whether plaintiff owner of another but not adjacent supermarket had locus standi to make application - consideration of ss 33 and 35 of Development Act 1993 - whether Council had assessed proposal against Development Plan - whether proposal was seriously at variance therewith - plaintiff's application not made as promptly as possible and prejudice suffered by developer.
Boyce v Paddington Borough Council (1903) 1 Ch 109; Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; Onus and Another v Alcoa of Australia Limited (1982) 149 CLR 27; Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council (1983) 2 Qd R 72; R v Corporation of the City of Salisbury; Ez parte Burns Philp (1986) 42 SASR 557; R v City of Burnside; Ez parte Ipswich Properties Pty Ltd and Another (1987) 46 SASR 81; Samels, Mathews and Woolworths Limited v District Council of Victor Harbor and Others
(1988) 50 SASR 96; R v City of Munno Para,. Ex parte John Weeks Pty Limited
(1987) 46 SASR 400; Australian Conservation Foundation Inc and Another v. The State of South Australia and Another (1988) 53 SASR 349; R v District Council of Berri; ex parte Eudunda Farmers Co-operative Society Ltd and Ors (1982) 31 SASR 342; Rhylyn Pty Ltd v District Council of Willunga and Ashford Holdings Pty Ltd (1994) EDLR 509; Myer Queenstown Garden Plaza Pty Ltd v The City of Port Adelaide (1975) 11 SASR 504; Hospital Action Group Association Inc v Hastings Municipal Council, (1993) 80 LGERA 190; Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259; South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35; District Council of Angaston v Hamilton (1995) 64 SASR 110: The Queen v Corporation of the City of Tea Tree Gully; ex parte Concrete Systems Pty Ltd and Ors 133 LSJS 277; ex parte Savage (1989) WAR 46; R v Secretary of State for Health and Another, ex parte Furneaux and Others
(1994) 2 All ER 652, considered.
HRNG ADELAIDE, 23-24 and 27 November 1995 #DATE 25:1:1996 #ADD 11:3:1996
Counsel for plaintiff: Mr B R Hayes QC
Solicitors for plaintiff: Ward and Partners
Counsel for defendant Village Fair: Mr A J Besanko QC
with him
Mr S W Henry
Solicitors for defendant Village Fair: Goldberg and Co
Counsel for defendant Mt Gambier city: Mr M Beamond with
him Mr A S Clare
Solicitors for defendant Mt Gambier city: Mellor Olsson
ORDER
Application dismissed.
JUDGE1 MATHESON J This is an application for judicial review. The plaintiff seeks, inter alia, an order in the nature of certiorari to quash the decision by the second defendant dated 27 June, 1995 granting provisional development plan consent to the first defendant, and a declaration that the amended application of the first defendant submitted to the second defendant on 28 April, 1995 is seriously at variance with the relevant development plan within the meaning of s35(2) of the Development Act, 1993. A number of facts have been agreed, and it is convenient to set them out immediately:
"1. The plaintiff is the registered owner of land situated
at Commercial Street East Mount Gambier more particularly
described and comprised in Certificates of Title Register
Book Volume 4183 Folios 148 and 149.
2. Such land was transferred to the plaintiff on or about
the 8th September 1992 ...
3. Upon the plaintiff's land is built a supermarket,
shopping centre and associated carparking facilities. The
supermarket is occupied by Woolworths (SA) Pty Ltd. The
second defendant gave consent under the Planning and
Development Act, 1966 on the 19th October 1979 for an
application to develop the land by constructing and
conducting a supermarket.
4. The plaintiff's shopping centre is located within the
City of Mount Gambier Commercial Zone and is a non-complying
use within that zone.
5. The first defendant is the registered owner of certain
land in Mount Gambier comprised in nine Certificates of
Title as follows:
(i) 1-21/21 Helen Street - Volume 5108 Folio 456;
(ii) 17 Helen Street - Volume 2121 Folio 71;
(iii) 18 Helen Street - Volume 5156 Folios 483 and 900;
(iv) 21-23 James Street - Volume 5108 Folios 448 and 812;
(v) 7 Gray Street - Volume 5108 Folio 462;
(vi) 9 Gray Street - Volume 2273 Folio 66;
(vii) 10-14 Railway Terrace - Volume 5169 Folio 158.
... The plaintiff's land is not adjacent to the first
defendant's land.
6. The current use of the respective components of the
first defendant's land are as follows:
(a) Land number (i) is the present Lakes Plaza Shopping
Centre with two carparking areas, one each on the western
side and eastern side of the building and is bound by Helen
Street to the north, Elizabeth Street to the west, Railway
Terrace to the south and Gray Street to the east;
(b) Land number (ii) is carparking located at the south
eastern corner of Helen Street and Gray Street;
(c) Land number (iii) is a vacant building/shop (former
Sturt Cinema) and carparking;
(d) Land number (iv) is carparking;
(e) Land numbers (v) and (vi) are vacant buildings and
former indoor go-kart track (Laurie Fox buildings);
(f) Land number (vii) is a vacant building (former premises
of Taylor Marine and office).
7. The first defendant's land is situated within the City
of Mount Gambier City Centre Zone and in that zone a
shopping centre is a consent use. The primary objective of
such zone is 'A compact city centre providing a range of
attractive retail, commercial, administration, cultural,
entertainment and community facilities.
8. By Development Application dated 7th June 1994
accompanied by a statement in support prepared by Robert
Miles Architects ... the first defendant applied to the
second defendant for approval for an extension to the
existing shopping centre and carpark on its land numbered
(i) - (vi) inclusive in para. 5 herein. This application
did not include the land numbered (vii).
9. Planning Officers of the second defendant prepared a
City planning report 6/94 dated 29th June 1994 in relation
to such application.
10. On the 21st July 1994 the second defendant resolved
that the said report be received and that the first
defendant be advised of certain additional requirements to
the proposed development before it would consider the
application. Further the second defendant resolved that its
City Planning Committee be delegated the authority to
determine the application.
11. On the 22nd July 1994 the second defendant's Senior
Planning Officer, Mr Leith John McEvoy, met with Mr P J
Scarborough, Property Manager of Jones Lang Wootton, agents
for the plaintiff at the second defendant's offices to
discuss the first defendant's application. Mr Scarborough
wrote to Mr McEvoy on the 28th July 1994 confirming his
visit on the 22nd July 1994 and restating the concerns that
the plaintiff had over the application.
12. On the 15th September 1994 the second defendant
resolved that its City Planning Committee advise the first
defendant that it was keen to grant provisional development
plan consent to the first defendant in relation to its
application subject to appropriate conditions and advice.
13. On the 21st September 1994 the City Planning Committee
of the second defendant resolved to grant provisional
development plan consent to the development subject to
various conditions.
14. On the 21st September 1994 the second defendant granted
provisional development plan consent to the development
subject to various conditions.
15. On the 22nd September 1994 the second defendant
informed Mr Scarborough in writing of the aforementioned
provisional development plan consent and forwarded to him a
copy of the decision notification form.
16. On the 23rd December 1994 the first defendant submitted
a further development application to the second defendant
which it described as an amended proposal for the
development for which it had previously been granted
conditional consent by the second defendant. It involved
the land referred to in paragraph 5 herein numbered (i) to
(vi) inclusive. The application was supported by a letter
from Robert Miles Architects dated 23rd December 1994.
17. Adjacent owners and occupiers were notified, the
application having been classified by the planning officers
as a Category 2 development.
18. The second defendant's planning officers prepared a
City Planning Report l/95 dated 31st January 1995 in
relation to such application.
19. On the 7th February 1995 the City Planning Committee of
the second defendant resolved that the application be left
to lie on the table pending further investigations.
20. On the 16th February 1995 the second defendant resolved
that the application be left to lie on the table pending
further investigations.
21. On the 20th April 1995 the second defendant was advised
by its City Planning Committee that it was anticipated that
an amended proposal would be forwarded to the second
defendant in the near future. It was resolved that the
application be left to lie on the table in anticipation of
the receipt of amended plans.
22. On the 28th April 1995 an amended application by way of
amended plans was received by the second defendant from the
first defendant. The amended application included the land
numbered (vii) in para.5 herein.
23. Adjacent owners and occupiers were notified of the
amended application.
24. The second defendant's Planning Officers prepared a
City Planning Report 3/95 dated 30th May 1995 in relation to
the amended application.
25. By letter dated the 31st May 1995 the Senior Planning
Officer for the second defendant requested clarification and
amendments in relation to various aspects of the amended
development from Robert Miles Architects. The second
defendant received a reply to such letter by letter dated
the 5th June 1995.
26. At a meeting of the City Planning Committee on the 6
June 1995 Mr McEvoy presented a report containing
alternative resolutions for dealing with the application
namely either refusal or consent subject to conditions. The
Committee recommended to the Council that it grant consent
subject to conditions.
27. At a meeting of the second defendant on 15th June 1995
the chairman of the City Planning Committee submitted a
detailed report in relation to the amended development and
moved that the recommendation of the committee be adopted.
The second defendant resolved to receive the Chairman's
report and the City Planning Report dated 30th May 1995 and
upon the first defendant paying the sum of $1,050.00 for the
Development Plan Assessment Fee to give provisional
development plan consent subject to various conditions to
the amended development as constituted in the plans referred
to in the resolution.
28. On or about the 26th June 1995 the first defendant paid
the sum of $1,050.00 to the second defendant for the
development plan assessment fee.
29. On the 27th June 1995 the second defendant granted
provisional development plan consent for the amended
application subject to various conditions.
30. On the 29th June 1995 Mr McEvoy met with Mr Jim Miers,
General Manager Property of Woolworths (SA) Pty Ltd and
Julie Hewitt, Property Administration Manager of the said
company and advised them of the second defendant's
aforementioned consent. Mr McEvoy provided them with copies
of the Minutes of the Meeting of the second defendant on the
15th June 1995 and also the City Planning Report dated 30th
May 1995."
2. The arguments of counsel have really raised three questions - whether the plaintiff has locus standi, whether the second defendant has acted ultra vires in granting provisional development plan consent, and whether, if it has, any relief should be granted in the exercise of the court's discretion.
3. The defendants contend that the plaintiff lacks a sufficient interest in the subject matter of the proceedings to be accorded locus standi to seek the relief sought. A review of the authorities on locus standi often starts with the judgment of Buckley J in Boyce v Paddington Borough Council (1903) 1 Ch 109. At p114, his Lordship said:
"A plaintiff can sue without joining the Attorney-General in
two cases: first, where the interference with the public
right is such as that some private right of his is at the
same time interfered with (e.g., where an obstruction is so
placed in a highway that the owner of premises abutting upon
the highway is specially affected by reason that the
obstruction interferes with his private right to access from
and to his premises to and from the highway); and, secondly,
where no private right is interfered with, but the
plaintiff, in respect of his public right, suffers special
damage peculiar to himself from the interference with the
public right."
4. Many of the relevant English and Australian authorities were considered in the case of Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493. At p527, Gibb J (as he then was) said:
"Although the general rule is clear, the formulation of the
exceptions to it which Buckley J made in Boyce v.
Paddington Borough Council is not altogether satisfactory.
Indeed the words which he used are apt to be misleading.
His reference to 'special damage' cannot be limited to
actual pecuniary loss, and the words 'peculiar to himself'
do not mean that the plaintiff, and no one else, must have
suffered damage. However, the expression 'special damage
peculiar to himself' in my opinion should be regarded as
equivalent in meaning to 'having a special interest in the
subject matter of the action'." At pp547-548, Mason J (as he then was) said:
"I also agree with Gibbs J that, apart from cases of
constitutional validity which I shall mention later, a
person, whether a private citizen or a corporation, who has
no special interest in the subject matter of the action over
and above that enjoyed by the public generally, has no locus
standi to seek a declaration or injunction to prevent the
violation of a public right or to enforce the performance of
a public duty.
Depending on the nature of the relief which he seeks, a
plaintiff will in general have a locus standi when he can
show actual or apprehended injury or damage to his property
or proprietary rights, to his business or economic interests
(as to which see New South Wales Fish Authority v. Phillips
(1970) l NSWR 725) and perhaps to his social or political
interests. Beyond making this general observation, I
consider that there is nothing to be gained from discussing
in the abstract the broad range of interests which may serve
to support a locus standi for, as I said in Robinson v.
Western Australian Museum (1977) 138 CLR, at pp.327-328:
'The cases are infinitely various and so much depends in a
given case on the nature of the relief which is sought, for
what is a sufficient interest in one case may be less than
sufficient in another.'"
5. In Onus and Another v Alcoa of Australia Limited (1982) l49 CLR 27, the High Court unanimously held that persons who claimed to be descendants and members of a particular aboriginal people and custodians of the relics of those people according to their laws and customs which relics were of cultural and spiritual importance to them had standing to commence an action to restrain another citizen from contravening the Archaeological and Aboriginal Relics Reservation Act, 1972 (Vict). I cite this case only for the following passage in the judgment of Gibbs CJ, at p38:
"The question whether a plaintiff has standing to bring an
action is one that logically arises before the question
whether he is entitled to succeed in the action. However,
as I pointed out in Robinson v. Western Australian Museum
(1977) 138 CLR 283, at p 302, the court has a discretion
whether or not it should determine the question whether the
plaintiff has a sufficient interest to bring the proceedings
before it proceeds to determine the merits of the case."
6. Next, I refer to Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council (1983) 2 Qd R 72. There the plaintiff company was engaged in the business of promoting Fraser Island as unspoilt wilderness, and of running tours for profit to the island to enable members of the public to see and experience the island's beauty. At pp78-79, Connolly J said:
"The second way in which the plaintiff seeks to show its
special interest is by pointing to its aim which it says is
the preservation of the natural resources of the island and
to the fact that it is engaged in the business of promoting
the island as an unspoiled wilderness area and of running
tours for profit to the island to enable members of the
public to see and experience the island's natural beauty. I
do not think that its aim of preserving the natural
resources and environment in themselves can amount to the
necessary special interest and I say this on the authority
of the Australian Conservation Foundation's case (supra).
However the business in which it is engaged is another
matter altogether. The evidence is not controverted that it
is engaged in the business which it shortly describes and it
is I think important that the character of the area as an
unspoiled wilderness is an essential feature of the business
in question. The evidence is meagre but it is
uncontradicted. Whether in truth it be right to describe
Fraser Island as an unspoiled wilderness may have been open
to question, but it was not questioned. The plaintiff's
case is that it apprehends an adverse effect on its business
of running tours for profit. I can see no reason in
principle why this does not give it a special interest in
the subject matter of the action."
7. The decisions of King CJ and Jacobs J in R v Corporation of the City of Salisbury; Ex parte Burns Philp (1986) 42 SASR 557 and R v City of Burnside; Ex parte Ipswich Properties Pty Limited and Another (1987) 46 SASR 81 appear at first glance to support the submission of the defendants on locus standi. However, in the latter case Olsson J held that both prosecutors had standing as they both stood to be adversely affected in their business by reason of the purported decision of the Council. He held that they were "entitled to, or alternatively, as a matter of discretion ought to be accorded locus standi" (see p95). Jacobs J, with respect, seems to have changed his position in Samels, Mathews and Woolworths Limited v District Council of Victor Harbor and Others (1988) 50 SASR 96. There the proposed development was for the erection of a supermarket and specialty shops with associated car parking and petrol pumps on land on the south west corner of the intersection of Torrens Street and Seaview Road at Victor Harbor. At pp106-107 Jacobs J said:
"It is said, however, that the Court in the exercise of its
discretion should not accord the plaintiffs locus standi,
and that is perhaps the most difficult question in the case.
The 'interest' of the plaintiffs can be stated quite
shortly. Woolworths Ltd is a trade competitor operating a
large supermarket in the immediate precincts of the proposed
development. The personal plaintiffs are residents. Mr
Samels lives with his wife and their eight month-old baby at
1 Dennis Place, Victor Harbor, which abuts the subject land.
It is described as a 'peaceful, quiet, narrow back street'
the amenity of which it is said would be gravely impaired by
the proposed development by reason of noise, traffic, and
accumulation of rubbish in the refuse area which is very
close to the plaintiff's residence. Ms Mathews is in much
the same situation. She resides in a semi-detached dwelling
which is diagonally opposite the subject land but on the
opposite side to Mr Samels. She previously resided in a
rented cottage on the subject land but she had to vacate
that prior to its demolition for the purposes of the
proposed development. It is, however, no accident that
these personal plaintiffs joined forces with Woolworths to
assert a different interest from that of Woolworths, for
both of them are associated with Woolworths in their
employment and their independence is therefore questionable.
That is a matter which might be relevant if the bona fides
of their complaints were in issue, but it is not; and the
fact that the plaintiffs might be acting in concert cannot
of itself be a bar to relief. Moreover, it is to be
remembered that Woolworths from the very beginning have
sought (in vain) to be heard in opposition to this proposal
by expressing concern as to its implications, in planning
terms, before the impugned planning decision was made. Its
attitude at that time was subsequently and substantially
vindicated by the Commissioner of Highways.
It is said, however, that because the plaintiffs had no
right to be heard in opposition to the proposal under the
relevant provisions of the Planning Act, they should not be
accorded a right in this Court to challenge the decision.
The submission is based upon the interaction between s53 of
the Act which, subject to the Regulations, gives statutory
rights of objection and appeal to third parties, and reg 38
which takes away those rights in respect of quite a large
number of specified development proposals, including the
present proposal. It is said to be contrary to the manifest
intention of the Act and Regulations to permit a person to
challenge by the process of judicial review a planning
decision which such a person is not entitled to challenge
under the Act and Regulations. Moreover, it is said that if
anybody was entitled to complain to this Court about the
Council's breach of its statutory obligations in arriving at
its planning decision it was the Commissioner of Highways,
and that since he has not sought judicial review, the Court
should not intervene."
8. His Honour then referred to the Burns Philp and the Ipswich Properties cases (supra), and to R v City of Munno Para; Ex parte John Weeks Pty Limited
(1987) 46 SASR 400 at p405. His Honour held that those cases were distinguishable, and at p108-109 he said:
"... it is plain beyond argument that the planning process
was unlawful and has so miscarried that the Court may
readily assume that the Attorney-General would have
intervened at the suit of a relator, had he been asked to do
so. In the earlier case by contrast, the majority of the
Court was of the opinion that the grounds upon which the
planning process was attacked were so tenuous as not to
justify the exercise of discretion to accord locus standi to
the plaintiffs.
The plaintiffs in the present case may not have such an
interest as would entitle them to relief ex debito
justitiae, but they are affected by the proposal; and
notwithstanding the scheme of the legislation, its pro tanto
denial of third party rights, and the consequent restraint
which I am satisfied the Court must exercise in granting
judicial review at the suit of parties who have been thus
deprived of their statutory rights, the Court must
nevertheless retain and exercise its supervisory
jurisdiction in a proper case where failure to do so would
allow a planning authority to ride roughshod over the Act
and Regulations."
9. Finally, I refer to Australian Conservation Foundation Inc and Another v The State of South Australia and Another (1988) 53 SASR 349. The subject matter of that action was the proposed development of a tourist resort on a portion of the Flinders Ranges National Park. The defendants argued that the plaintiff did not have locus standi to maintain the action. In the course of his judgment, King CJ (with whom Duggan J at least agreed), said at p353:
"Interference with commercial interests may found locus
standi; Fraser Island Defenders Organisation Ltd v Hervey
Bay Town Council (supra). It is necessary therefore to
examine the statement of claim in order to determine whether
it contains allegations capable of supporting standing on
this ground ..."
10. His Honour rejected locus standi on the facts alleged in the Statement of Claim.
11. I propose to postpone further consideration of locus standi for the moment, and turn to consider the plaintiff's arguments that the consent granted by the second defendant was ultra vires.
12. At the commencement of the hearing, I admitted by consent a number of affidavits. The plaintiff tendered an affidavit sworn on 2 November, 1995 of Mr A J Crocker, a member of the firm of Ward and Partners, solicitors for the plaintiff, (counsel for the first defendant reserving the right to object to paragraphs 7 and 8 on the grounds of hearsay). Mr Crocker deposed to the history of the several applications by the first defendant, and quoted comments from reports prepared by the planning officers employed by the second defendant on what he called "the gross deficiency of the proposals in regard to car parking spaces". I also admitted two affidavits of Mr Joseph Kaufman, sworn on 1 and 23 November, 1995 respectively, on the understanding that he was to be called for cross examination, as he in fact was. He is the managing director of the plaintiff. He and his wife, Pearl Kaufman, live at Toorak in Victoria. The other directors are his wife and his son-in-law's mother, Sonia Zwier, who lives at Caulfield in Victoria. His son-in-law, Leon Zwier, is the secretary. In his first affidavit, Mr Kaufman stated that he was not aware that the second defendant had granted provisional development plan consent on 21 September, 1994 to the first application of the first defendant until September, 1995. He also said that he was not aware of the consent granted on 27 June, 1995 until September, 1995. In his second affidavit, Mr Kaufman deposed:
"My First Affidavit was provided to me by Ward and Partners
in draft form, and was read and sworn by me in extreme
haste. It was my understanding at the time I swore my First
Affidavit, that by paragraphs 6 and 7 I was saying, as I
intended to say, that I did not understand intimately and
with any particularity the details of the provisional
Development Plan consent granted by the Second Defendant to
the First Defendant in September 1994 until September 1995.
To the extent that a different meaning is conveyed by those
paragraphs, I apologise, as that was not intended. It was
not until my meeting with my solicitors in September 1995
that I first understood the provisional Development Plan
consent, or any of my rights, in greater detail."
13. Mr Kaufman said that the rental paid by Woolworths for the plaintiff's shopping centre complex was directly based on the turnover of the shopping centre. I set out paragraphs 3 - 5 inclusive of his first affidavit:
"3 The plaintiff is concerned that if the development
proposed by the First Defendant proceeds it will adversely
impact upon the trading performance of the shopping centre
owned by the Plaintiff in that the proposed development will
provide goods and services presently provided on the site
owned by the Plaintiff.
4 If the development by the First Defendant proceeds, the
Plaintiff believes that the First Defendant will have
obtained an unfair economic advantage in that it has
obtained consent from the Second Defendant for a shopping
complex which is grossly deficient in its provision of car
parking spaces. The Plaintiff has been advised that the
First Defendant's proposal is seriously in conflict with the
relevant Development Plan and further that no contribution
has been made by the First Defendant to the car parking fund
maintained by the Second Defendant to receive monetary
contributions in lieu of being able to provide the
appropriate number of car parking spaces.
5 All of the above factors have the potential to seriously
affect the economic viability of the Plaintiff's shopping
centre at Commercial Street East, Mount Gambier."
14. I have considerable reservations about the reliability of the evidence of Mr Kaufman. I am satisfied that at all relevant times Mr Paul Scarborough, Property Manager for Jones Lang and Wootton, acted as the plaintiff's agent. I am satisfied that Messrs Kaufman and Scarborough attended a meeting with Mr L J McEvoy, Senior Planning Officer of the second defendant, at its offices at Mount Gambier on 22 July, 1994, and that the then current application of the first defendant was discussed, including the current state of its assessment by the second defendant. On 28 July, 1994 Mr Scarborough wrote to Mr McEvoy setting out the plaintiff's concerns about the application. On the same day, Mr Scarborough wrote similar letters to Messrs Kaufman and Miers (the latter is the Manager SA and NT, Property and Development, for Woolworths (SA) Limited) stating that he had written a letter to the second defendant objecting to the first defendant's application. On 16 August, 1994 Mr Scarborough wrote to Mr Kaufman again bringing him up to date, inter alia, on the then current application. On 22 September, 1994 the Chief Executive Officer of the second defendant wrote to Mr Scarborough stating that the second defendant had granted provisional development plan consent to the first defendant, and enclosing a copy of the decision notification form. On 30 September, 1994 Mr Scarborough wrote to Mr Kaufman enclosing a copy of this correspondence from the Chief Executive Officer. Mr Kaufman claimed that he never saw this letter, but he agreed that Mr Scarborough advised him of the provisional development plan consent at about the date of the letter.
15. On 21 June, 1995 Messrs Scarborough and Kaufman had a further meeting with Mr McEvoy at the second defendant's offices. I am satisfied that they discussed the decision of the second defendant dated 15 June, 1995 to consent to the first defendant's application. On 29 June Mr Miers and a colleague from Woolworths had a meeting with Mr McEvoy at the second defendant's offices. The decision of the second defendant dated 15 June, 1995 was again discussed. Mr McEvoy was advised by Mr Miers that a number of options were being considered, including the issue of judicial review proceedings. On 4 July, 1995 Mr Miers wrote to Mr Scarborough referring to the telephone conversation that they had on 3 July, 1995 relating, inter alia, to "judicial review of the Council's planning decision". On 6 July, 1995 Mr Scarborough wrote to Mr Miers stating, inter alia, "we have spoken to Mr Jo Kaufman representing the registered proprietors of the (shopping) centre. He has indicated they are prepared to assist and co-operate with the judicial review of Council's planning decision". On 27 September, 1995 Mr Miers wrote to Mr Scarborough again referring to "the proposed judicial review of the Council's decision", and stating that "it would be appreciated if you would confirm that the action is to be taken in the name of the lessor and the legal accounts will also be forwarded to the lessor. We confirm we will meet 50% of these accounts." Mr Kaufman confirmed in evidence that Woolworths are contributing 50% of the cost of these proceedings.
16. Mr Besanko QC, counsel for the first defendant, tendered two affidavits of Mr R L Abrahams sworn on 8 and 23 November, 1995 respectively. Mr Abrahams is a director of the first defendant. He was subsequently called as a witness and cross examined by Mr Hayes QC, counsel for the plaintiff. He deposed to spending $458,320 in relation to the development in question, including the cost of the acquisition of the land comprised in Certificate of Title Register Book Volume 5169 Folio 158. He said that of that sum approximately $140,000 represented expenses relating to work carried out since 15 June, 1995, being the date of the Council meeting at which the application was approved.
17. Mr Besanko also tendered an affidavit of Graham Burns, a planning consultant employed by Bone and Tonkin Planners Pty Ltd. He was requested by the first defendant to prepare a report in relation to planning issues concerned with the said application and his report dated 20 November, 1995 was exhibited to his affidavit. Mr Besanko also tendered an affidavit of Mr A P O'Brien, Managing Director of Andrew O'Brien and Associates Pty Ltd, traffic engineers of Camberwell in the state of Victoria. He was requested to prepare a report in relation to parking issues concerned with the first defendant's application, and his report dated 18 November, 1995 was exhibited to his affidavit. Mr Besanko explained the reason for the tender. His first submission was that the only issue on the application for judicial review was whether the council had assessed the proposed development against the relevant provisions of the appropriate Development Plan. If the court was satisfied that the council had done so, that was the end of the matter and the application must fail. If, on the other hand, the court accepted the plaintiff's contention about the meaning of s35(2) of the Development Act, Mr Besanko submitted that the court could receive planning evidence, not for the purposes of this court making a planning decision, but in order to establish that a reasonable body could hold the view that the application was not seriously at variance with the Development Plan. Both Messrs Burns and O'Brien were subsequently cross examined by Mr Hayes.
18. Finally, Mr Beamond, counsel for the second defendant tendered an affidavit of Mr L J McEvoy, Senior Planning Officer of the second defendant. He deposed to the handling by the Council of the various applications.
19. Mr Hayes referred to the relevant provisions of Part 4 of the DevelopmentAct, 1993. Section 32 provides, that no development may be undertaken unless the development is an approved development. Section 33 provides, in so far as is relevant here, that a development is an approved development if, and only if, the relevant authority has assessed the development against, and granted a consent in respect of, the provisions of the appropriate Development Plan ("provisional development plan consent"), in so far as any of those provisions are relevant to the particular development, and the provisions of the Building Rules ("provisional building rules consent"), in so far as any of those provisions are relevant to the particular development. Section 34 provides for the ascertainment of the relevant authority. Here it is the second defendant. Section 35 provides:
"35.(1) If a proposed development is of a kind described as
a complying development under the regulations or the
relevant Development Plan, the development must be granted a
provisional development plan consent (subject to such
conditions or exceptions as may be prescribed by the
regulations or the relevant Development Plan).
(2) Subject to subsection (1), a development that is
assessed by a relevant authority as being seriously at
variance with the relevant Development Plan must not be
granted consent.
(3) A development that is of a kind described as a non-
complying development under the relevant Development Plan
must not be granted a provisional development plan consent
unless -
(a) where the relevant authority is the Development
Assessment Commission - the Minister and, if the development
is to be undertaken in the area of a council, that council,
concur in the granting of the consent;
(b) in any other case - the Development Assessment
Commission concurs in the granting of the consent.
(4) If a development is of a kind described as a non-
complying development under the relevant Development Plan,
no appeal lies against -
(a) a refusal of consent or concurrence under this section;
or
(b) a condition attached to a consent or approval that is
expressed to apply by virtue of that non-compliance under
the Development Plan,
except in relation to a proposed development that has, or
will, become necessary by reason of -
(c) a change, or a proposed change, in the law regulating
an existing use of land; or
(d) an order under Division 5 or 6 of Part 6."
20. Section 16 of the Statutes Repeal and Amendment (Development) Act, 1993 (which is in Appendix l to the Development Act) includes the following:
"16(l) The following are adopted and applied as Development
Plans under the Development Act 1993:
(a) for each area of a council (other than the City of
Adelaide) - that Council portion of the Development Plan
under the Planning Act 1982, together with the relevant
regional part of the Development Plan under that Act, in
effect immediately before the relevant day;
(b) - (c) ...
(2) - (9) ...
(10) A reference in the Development Plan under the Planning
Act 1982, or in any Act, regulation, rule, by-law or other
instrument, to development which is 'permitted' or
'prohibited' under section 47 of the Planning Act 1982 will
be taken respectively as a reference to complying or non-
complying development under the Development Act 1993.
(ll) - (18) ...
(19) A reference in any Act, regulation, rule, by-law or
other instrument -
(a) to the Development Plan under the Planning Act 1982; or
(b) to a Supplementary Development Plan that has been
approved under the Planning Act 1982,
will be taken to be a reference to the relevant Development
Plan under the Development Act 1993."
21. Mr Hayes contrasted the provisions of s36(2) which enable the relevant authority to modify the application of the building rules when the authority has assessed a development as at variance with those rules. He argued that s35 imposed an obligation on the council to consider carefully and properly, not only the provisions of the appropriate Development Plan, but also the extent to which the proposal might be seriously at variance with those provisions.
22. Mr Hayes referred to the history of planning legislation in South Australia which, he submitted, showed a pattern of gradual and greater emphasis on Development Plans. Section 41(7) of the Planning and Development Act, 1966 provided that before granting or refusing its consent the relevant authority shall have regard to, inter alia, the provisions of any authorised Development Plan. It was held by the court in R v District Council of Berri; Ex parte Eudunda Farmers Co-operative Society Ltd and Ors (1982) 31 SASR 342 that the council was required "to have regard to" the authorised Development Plan, but, having done so, was entitled to depart from it.
23. The Planning Act, 1982 provided in subs9 of s47:
"(9) In deciding whether to consent to a proposed
development under this section, a planning authority ...
shall have regard to the provisions of the Development Plan
so far as they are relevant to that decision."
24. King CJ said in R v City of Munno Para; Ex Parte Weeks (supra) that what the court had said in the Berri District Council case remained the law under the 1982 Act. He referred to South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355 and Walkerville Town Corporation v Adelaide Clinic Holdings Pty Limited (1985) 38 SASR 161. At p402 King CJ said:
"It is clear, however, from the judgments in those cases
that, if a council failed 'to have regard to' the plan, such
failure would invalidate its decision. If it had regard to
the plan, but departed from it, its decision would be valid.
The departure from the plan, and the degree of it, would, of
course, be important considerations in any assessment on
appeal of the merits of the planning decision."
25. Sub-section 9 of s47 was amended by the Planning Act Amendment Act (No 2), 1985, as a result of which the sub-section read as follows:
"(9) In deciding whether to consent to a proposed
development under this section, a planning authority -
(a) shall have regard to the provisions of the Development
Plan so far as they are relevant to that decision;
and
(b) shall not make a decision that is seriously at variance
with those provisions."
26. At pp402-404 King CJ continued:
"What is the legal effect of the change made by the
introduction of par(b)? There are alternative views. The
first is that the new paragraph does not touch the validity
of decisions made by a planning authority which has had
regard to the plan, but merely provides a ground which, if
it exists on the facts of the case, must lead to the refusal
of consent. On this view a consent which is seriously at
variance with the Development Plan would be a legally valid
but incorrect decision. It could only be corrected on
appeal brought by a person having standing to appeal. The
second view is that the new paragraph circumscribes the
legal power of the planning authority to consent to a
proposed development and renders any purported consent which
is at serious variance with the plan invalid.
There are cogent arguments in favour of the first view.
There is the nature of the Development Plan itself. It is a
document embodying planning principles and goals expressed,
for the most part, in general terms rather than in the
specific terms apt for expression of legal criteria which
are to be the determinants of legal validity. There is the
language of par(b) itself. The determination of the
question whether a proposal is seriously at variance with
the provisions of a planning document such as the
Development Plan necessarily involves a large element of
planning judgment. There is an incongruity in a court of
law being required, in proceedings which are not by way of
appeal against the correctness of the decision but by way of
judicial review of its validity, to exercise a judgment of
that kind which must depend to such a degree upon the
individual's assessment of competing planning values. There
is a presumption, to my mind, against a legislative
intention that the very validity, as distinct from the
correctness, of an administrative act should depend upon
such an uncertain factor as a judgment as to whether the
decision leading to the administrative act is seriously at
variance with a document expressed for the most part in
terms of general principles and objectives.
Notwithstanding the arguments, based on such considerations,
in favour of the first view, it is difficult when the matter
is approached as an exercise in statutory construction, to
escape the second view. The new paragraph is expressed in
terms of outright prohibition. It is engrafted onto a
statutory provision requiring the planning authority to have
regard to the plan, compliance with which provision has been
held to be a condition precedent to the validity of a grant
of consent. The language used in par (b) of subs(9) stands
in marked contrast to the language of subs(10) where the
prohibition is merely against consenting 'without having
considered' the requirements of certain instrumentalities
and agencies. Under subs(9)(b) the prohibition, if there is
serious variance, is absolute.
The courts have had to consider on innumerable occasions
questions whether a particular statutory provision affects
jurisdiction or vires on the one hand or whether it affects
only the merits on the other hand. There is no point in an
examination of the authorities because in each case it is a
matter of construction of the particular statute. I have
reached the conclusion in the present case that the planning
authority's power to grant consent depends upon the proposed
consent not being at serious variance with the Development
Plan. I must say that I have reached this conclusion with
some reluctance because it makes the validity of an
important administrative act depend upon debatable questions
relating to planning values and the degree of the proposed
departure from the Development Plan. Such considerations
cannot prevail, however, against the language and structure
of the section. Courts are, of course, able to apply
criteria, however imprecise, if Parliament requires them to
do so: Sutherland Shire Council v Finch (1970) 123 CLR 657
at 666, per Gibbs CJ I think that the intention of the
legislature in amending the section is too plain to be
misunderstood. For good or ill, Parliament has decided that
the validity of a consent is not to be determined by
reference, as is usual, to defined legal criteria but is to
depend upon the judgment of a court of law as to whether a
proposed development is seriously at variance with the
Development Plan. Care will be required on the part of the
court, when such an issue comes before it on an application
for judicial review, to confine itself to its legitimate
role in supervising the legality of the planning process.
The court must ensure that it does not become involved in
matters of planning merits which are proper for the
consideration of the appellate tribunal but which are not
jurisdictional in character. An alleged serious departure
from the plan can be the basis of intervention by the court
on judicial review only if the existence and seriousness of
the departure can be discerned plainly by the court from the
material before it without the necessity of resolving
debatable issues relating to planning merits.
It is therefore necessary to consider whether the consent
under review is seriously at variance with the provisions of
the Development Plan. I think that it must be so regarded.
I do not take that view merely because retail shopping is
not included as one of the objectives of the zone F in which
the proposed development is mainly located. Retail
activities are not a prohibited use for zone F; and, even if
they were, the Act provides in s47(6) machinery for consent
to a development involving a prohibited use. There may be
minor retail developments, or developments of which
retailing is a minor or incidental part, in a zone not
intended for retailing, which, although at variance with the
plan, could not be regarded as seriously at variance with
it. The seriousness of the departure from the plan in the
present case, to my mind, arises largely from the magnitude
of the proposed shopping centre. It is a major retail
shopping centre, and the proposal is that it be located in a
zone whose objectives consist of commercial and service
activities and do not include retail activities. The
proposed development is a departure from the plan of such
magnitude, in my opinion, that observance of the planning
regime imposed by the Act requires that, to accommodate it,
there be an amendment to the plan. Such an amendment would
be subject to the scrutiny and procedures prescribed by the
Act for such an amendment. I think that consent to such a
proposal is at serious variance with the provisions of the
Development Plan and therefore invalid."
27. His Honour concluded that there should be an order in the nature of certiorari quashing the planning consent as invalid (cf Legoe J dissenting at pp438-441).
28. White J agreed that there should be such an order, and at p412 he said:
"Section 47(9) and (10) create new fetters on what had
hitherto been judicially regarded as virtually an 'absolute
discretion' in a council to 'have regard to' and then, for
reasons which appeared to it to be adequate, to 'disregard'
the Development Plan. It may be that a council can
'consider' a report from a prescribed government
instrumentality in the same way as it 'had regard to' the
Development Plan and then 'disregard' the report. However,
I doubt whether such reports could be 'considered'
(regarded) and then disregarded with impunity. I venture to
think that any council treating a report too lightly might
be in some trouble with the Minister.
In the years 1984-1985 the Act was 'tightened up' in some
respects and 'loosened up' in others. The tightening up
process can be seen in the amendments to s47(9) and (10)
while the loosening up process can be seen in the amendments
to regulations which exempted from the public notification
requirements numerous 'business' developments in many
classes of centres. Section 53 of the Planning Act 1982
envisages that persons affected will receive notification of
proposed developments and be able to make representations to
the council. Section 53 further envisages that unsuccessful
objectors can appeal to the Planning Appeal Tribunal. It
seems to be clear enough that s47(9) and (10) together with
regs 29 and 30 were designed to strengthen the hands of
government instrumentalities such as the Planning
Commission, the Commissioner of Highways, and any other
prescribed bodies, in supervising the way in which councils
comply with their development plans and traffic policy while
reg 38 was designed to weaken the policing role performed by
locally affected individuals whose vigilance was previously
a major factor in enforcing compliance with the Development
Plan. The policy role of individuals with local interests
was reduced by exempting numerous categories of development
from notification requirements: see reg 38, new pars (d),
(e), (f) and (g). In effect, the former rights of local
interests to notification of new business developments in
all centres were taken away." At pp415-416, White J said:
"... it would take a very strong case under former subs(9)
to persuade the Court that the council had failed 'to have
(any real) regard to' the plan. Under amended subs(9) a
development may be much more readily held to be 'seriously
at variance' than in the circumstances envisaged in the
Berri District Council case.
It will always be a question of fact and degree as a matter
of practical judgment (cf Corporation of City of Noarlunga v
Fraser (1986) 42 SASR 450, per White J) whether a particular
development falls one side of the line or the other.
Normally this question of fact and degree is left to the
practical good sense of the planning authority, here the
council. Since the rights of notification, representation,
and appeal have been completely repealed with respect to
these centres, councils should exercise this practical
judgment with even more care than hitherto. I think that a
court in prerogative proceedings should only be prepared to
find, as a matter of fact and degree in its practical
judgment, that the development is seriously at variance with
the plan when the variance is clearly established. In grey
areas of uncertainty, the court would be more likely to
defer to the practical judgment of the responsible planning
authority."
29. Mr Hayes pointed out that ss33 and 35 of the Development Act, 1993 had removed the requirement "to have regard" to the plan, and had substituted the requirement that the authority "assess the development against the provisions of the plan". He pointed out, however, that the act retained the embargo on approval of a development "seriously at variance with the relevant development plan".
30. Mr Hayes argued further that the use of the words "that is assessed by a relevant authority" in s35(2) does not remove the need for an objective assessment. He referred to R v City of Munno Para (supra), and in particular to the judgment of White J at p416 where his Honour said:
"It is important to note that par (b) of subs (9) does not
say 'a development, which in the opinion of the council, is
seriously at variance'. Instead, par(b) expresses a
straightforward criterion which is independent of the
council's opinion and equally capable of practical judgment
by the Court. I would so construe s47(9)." (See also
King CJ at p403.) At p418, White J said:
"Section 47(9)(b), in prohibiting consent to developments
seriously at variance with the plan is, at one and the same
time, authorising consent to developments at variance with
the plan, short of being seriously at variance.
That is the limit of the council's power. I would apply the
objective test, giving due weight - but no greater weight
than this council deserves - to its opinion in relation to
the degree of variance from the plan."
31. Mr Hayes also referred to s22 of the Development Act which established for the first time what the Act calls "Planning Strategy". It contemplates a non-statutory document, unlike a Development Plan. It is actually a political document (ss8). The appropriate Minister must ensure that a Planning Strategy for development is prepared and maintained. Section 23 requires that a Development Plan should seek to promote the provisions of the Planning Strategy. Mr Hayes argued that Development Plans consequently are even more important than they were under the repealed Act.
32. As far as I know, the only decision of this court in which s35(2) of the Development Act has been considered is Rhylyn P/L v District Council of Willunga and Ashford Holdings P/L (1994) EDLR 509. At pp513-514, Debelle J said:
"There are some material differences between the Development
Act and its predecessor, the Planning Act 1982. Both
require a planning authority, charged with the duty of
determining whether planning consent should be granted, to
have regard(sic) to the terms of the Development Plan.
However, the Development Act 1993, unlike the Planning Act
1982, does not in terms require a planning authority to
determine whether the proposed development is seriously at
variance with the provisions of the Development Plan.
Expressing the matter another way, s.33(1) of the
Development Act, like s.47(9) of the Planning Act, requires
the planning authority to have regard(sic) to the
Development Plan but the Development Act does not contain a
provision such as s.47(9)(b). However, s.35 of the
Development Act retains the concept of whether a proposed
development is seriously at variance with the Development
Plan. S.35(2) provides:
'A development that is assessed by a relevant authority as
being seriously at variance with the relevant Development
Plan, must not be granted consent.'
It will be apparent that there is a substantial difference
in emphasis, if not also in purpose, between the provisions
of s.35(2) of the Development Act and (the) provisions of
47(9) of the Planning Act. Given the terms of s.35(2), it
is curious, to say the least, that the Development Act does
not include a provision along the lines of s.47(9).
Nevertheless, the retention in the Development Act of the
concept of a proposal being seriously at variance with the
Development Plan carries with it the clear implication that
a planning authority has a duty, when considering any
application before it, to determine whether it complies with
the Development Plan or is seriously at variance with it or
in what other respect it accords or does not accord with the
provisions of the Development Plan. In this respect I refer
to the observations of this court in South Australian
Housing Trust v Lee (1993) 81 LGERA 378, 388. Although the
court was there referring to the duties imposed upon
planning authorities under the Planning Act, the same duties
must obtain in relation to the Development Act and have
equal application to it. The validity of this conclusion
can be tested by examining what the position would be if
that were not so. If it were not so, the curious position
would obtain, that, whilst a Council is charged by s.33(1)
of the Development Act to have regard(sic) to the
Development Plan, it could avoid the responsibility of
determining whether a proposal was seriously at variance
with the Plan. The proposition has only to be stated to
demonstrate the conclusion that councils considering
applications made under the Development Act must determine
whether the proposal is seriously at variance with the
Development Plan, as they did under the Planning Act."
33. I respectfully agree with the observations of Debelle J I reject the submission of Mr Hayes that s35(2) of the Development Act has further "tightened up" the requirement of the relevant authority to have regard to the Development Plan. The new section may not have reduced the importance of the Development Plan, but it has rather, in my view, emphasised the responsibility that lies on the relevant authority. It is true, as Mr Hayes pointed out, that Parliament has not used the words "a development which in the opinion of the relevant authority is seriously at variance with the relevant Development Plan must not be granted consent" but, in my view, the words that Parliament has in fact used mean exactly that. I think it is very likely that Parliament took into account the passages that I have underlined in the judgment of King CJ in the Munno Para case at pp402-404 (in which they recognise the unsatisfactory nature of the old s47(9)) with the intention of further minimising the number of cases where judicial review might be available. In my view, there is now even less scope for such interference than there was at the time of that decision.
34. I agree with the submissions of counsel for both defendants that an examination of the material before the second defendant indicates that it did assess the proposed development against the Development Plan. They may not have agreed with, but they could not have ignored, that the City Planning Report 3/95 prepared by its Planning Officer, Julie Turner, and sighted and signed by its Senior Planning Officer, Mr Leith McEvoy, concluded with the words "The application therefore does not warrant support as it is seriously at variance with the provision of the Development Plan". I also agree that it was not necessary for the Council to say in its minutes that the application was not seriously at variance with the Development Plan. I am prepared to assume that the application was "properly considered, adequately debated and fairly and faithfully resolved, see Myer Queenstown Garden Plaza Pty Ltd v The City of Port Adelaide (1975) 11 SASR 504 at p565, The Queen v Berri District Council (supra) at p359, and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at p195.
35. Principle 27 of the Principles of Development Control in the City of Mount Gambier section of the Development Plan (the principles of development control for the South East also apply to the City of Mount Gambier) states:
"27 Development should provide off-street car parking or
other requirements in accordance with the following
provisions ... (omitting irrelevant provisions)
Kind of Development Conditions
Shop A parking area being established on the site
or sites on which the shop or series of two or
more shops are erected at the rate of not less
than seven car parking spaces for every 100
square metres of the total floor area."
36. The Mount Gambier City Centre Zone in which the first defendant's land is situated occupies a large part of the centre of the city. Its western boundary is Wehl Street. Its northern boundary is a little to the north of Commercial Street. Its eastern boundary is Anthony Street. Its southern boundary is Railway Terrace.
37. Principle 4 of the Principles of Development Control of the City Centre Zone states:
"The following kinds of development are permitted
(complying) subject to compliance (with specified
conditions):
Auction Rooms Office and Dwelling
Bank Post Office
Bowling Alley Residential Club
Concert Hall Shop and Dwelling
Non-residential Club Theatre
Office"
38. Principle 5 states:
"The following kinds of development are prohibited (non
complying) in the City Centre zone:
Crematorium General Industry
Plant Industry"
39. It is clear that the proposed development is neither a complying nor a non-complying development, and is one for which consent was required.
40. In this case, the undisputed facts are that the existing Lakes Plaza Shopping Centre has a floor area of 10,639 sq m and 451 car parking spaces are provided, leaving a deficiency based on Principle 27 of 188 spaces. The proposed development would add 4,728 sq m of floor area, and provide only an additional 45 spaces. Based on Principle 27, there would be a resulting deficiency of 548 parking spaces.
41. Mr Hayes stressed that the second defendant's planners had advised that "the application does not warrant support as it is seriously at variance with the provisions of the Development Plan". He submitted that there was no other information before the council contradicting that view. If, contrary to his submission, the proper test was a subjective one, he submitted that the departure here was so great that the decision was of a kind that is "so plainly obnoxious to an authorised Development Plan ... and justification for such a signal departure from that plan is so clearly absent, that (the) court (should) 9be persuaded to conclude either that the Council made an error of law on the face of the record or that it acted in excess of or without jurisdiction", to adapt the language of R v District Council of Berri (supra) at p359.
42. Counsel for the defendants referred me to Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259. In that case the Commission approved a development consisting of alterations and extensions to an existing shopping complex and car park situated in a District Commercial Zone, the proposed development extending into a Residential 2 Zone. The Tribunal confirmed the approval subject to certain amendments, provisos and conditions. The appellant appealed to the Supreme Court. At p260, in a judgment with which Duggan and Mullighan JJ agreed, King CJ said:
"The town of Gawler is divided into zones pursuant to the
Development Plan. The subject shopping complex is situated
in a District Commercial Zone. Immediately to the north of
that zone is a Residential 2 Zone and the proposed
development would involve some part of the R2 Zone land
immediately to the north of the existing complex. In both
of those zones a shop or group of shops with a gross
leasable area greater than 450 m2 is a prohibited use. The
existing complex is an existing use of the land within the
meaning of s56(1) ...: At pp261-262, King CJ said:
"... I think that a development which is plainly prohibited
by the Plan is necessarily at variance with it. The fact
that the Commission, subject to the conditions prescribed in
the Act, has power to consent to a prohibited use does not
mean that that use is not at variance with the Plan; it
merely means that the Commission has power to consent to a
use which is at variance with the Plan. I think that the
proposed development is plainly at variance with the Plan
and that the only question for consideration is whether the
degree of that variance can be characterised as serious
within the meaning of s47(9).
The proposal is for a substantial development which is
prohibited by the Plan. If it were a new development rather
than an extension of an existing development, I would have
no hesitation in characterising it as seriously at variance
with the Plan. The proposal under consideration, however,
is not a proposal for a new shopping complex but for an
extension of the present shopping complex which is itself
protected as an existing use ... I accept that it is
necessary to look at the Plan as a whole in order to
determine the extent of the variance from it involved in the
subject proposal, but I think that there is considerable
danger in focusing upon the remaining scope for a similar
development in zones in which it would not be prohibited.
If the existing Plan does not provide adequately for a
development of this kind, the remedy is to be found in a
supplementary Development Plan formulated and developed in
accordance with the appropriate planning and consultative
procedures. I think that there is considerable danger in
attempting to remedy defects in the Plan by individual
planning decisions and that is likely to be the result of
attaching substantial weight to the lack of scope in the
existing Plan for development similar to that proposed in
zones in which it would not be a prohibited use.
Mr Hayes argued that it was irrelevant that the proposal was
not a proposal for a new shopping complex where none
previously existed, but rather for the extension of an
existing complex. The argument, in its extreme form, was
that the degree of variance from the Plan had to be
determined by comparing the Plan itself with the proposal,
ignoring the historical and factual context in which the
development is proposed to occur. I cannot accept that
argument. It seems to me that the extent of the variance
from the Plan involved in the project must be judged in the
context in which the project will be implemented. That
context must include the fact that the existing shopping
complex is a protected existing use which will continue.
The impact upon the development of the town in accordance
with proper planning objectives, of an extension to a
shopping complex which is already there, appears to me to be
quite different from the impact of a new complex of equal
size. The Planning Authority cannot be precluded, as it
seems to me, from assessing the reality of the extent of the
variance from the Plan and that reality can only be assessed
if the proposal is seen for what it really is, namely an
extension of an already existing facility. I can see no
foundation for Mr Hayes' argument that the Authority, and
consequently the Court, is precluded as a matter of law from
looking at that reality.
The argument in its more moderate form, as I understood it,
was that the combined effect of ss56 and 41(14) was to
indicate a clear intention on the part of the legislature
that, although there is power to consent to a prohibited
use, including an extension of a protected existing use, the
ordinary method by which a development in the continuation
of an existing use would be sanctioned would be by way of
supplementary Development Plan. I do not discern any such
intention. That subs (14) mandates the committee to give
adequate consideration to the interests of owners and
occupiers who have a protected existing use and who may wish
to expand that use, does not seem to me to place any
constraint on the function of the Planning Authority or the
Court, in assessing the degree of variance of the proposal
from the Plan, to examine the reality of the proposal as an
extension of a protected existing use rather than a
completely new development.
The reality against which the extent of the variance
proposed must be judged is that there is in existence a
substantial shopping complex in a zone in which it is a
prohibited use, which complex is protected as an existing
use by the provisions of s56. The reality is that that
shopping complex will continue to exist and operate
irrespective of the outcome of this proposal. The proposed
extension is undoubtedly substantial but its impact upon the
development of the town in accordance with the appropriate
planning objectives is, to my mind, considerably minimised
by the fact that it is a mere extension of an existing and
operating facility. Looking at the Plan and its objectives
broadly, I am unable to feel that an extension of the
existing shopping complex to the degree envisaged in the
proposal, although undoubtedly in conflict with the
provisions of the Plan, can fairly be said to be seriously
at variance with them. I therefore find myself in agreement
with the Commission, the Planning Appeal Tribunal and the
single judge of the Land and Valuation Division of this
Court."
43. The appeal was dismissed.
44. In South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35, the Full Court answered certain questions of law reserved to it. In the course of doing so they had to consider Principle of Development Control No 37 in the City of Marion part of the Development Plan. That Principle stated:
"A detached, semi-detached or row dwelling not complying
with the relevant conditions of Table Mar/1 should conform
with the following ..."
45. There followed prescribed minimum standards as to site area, width of site and depth of site, and standards as to maximum site coverage, car parking and back yard area. At pp37-38 in a judgment with which Perry J agreed, King CJ said:
"The problem reserved in this case stated appears to
have arisen from the judgment of Debelle J in Corporation
of the City of Marion v Kerta Weeta Construction
Pty Ltd (Debelle J, 16 December 1993, unreported).
His Honour in that case expressed the view in relation to
Principle No. 37 that 'the use of the word "should"
indicated that compliance with the standard is mandatory.'
His Honour went on to state his views as follows:
'It is not, therefore, possible to approach the
standards in Principle 37 as one might approach other
standards in the Development Plan. Standards such as
those in Table Mar/1 are desired or preferred standards. It
is possible, therefore, to permit a departure from them.
That is recognised by the Development Plan. But the same
cannot be said of Principle 37. Thus, in the case of
those developments which fall short of the Table Mar/1
the Council and, if there is an appeal, the Tribunal
should carefully examine the proposal to see if it
merits approval. If the proposal does not comply
with the criteria in Principle 37, it must be
refused unless the departure from those standards is
minimal and the proposal in other respects merits
planning consent. I do not mean to suggest that
Principle 37 is an absolute standard so that non-
compliance automatically disqualifies a development
proposal. However, it is only where the proposal fails
to conform with the standard in a minor respect and
otherwise merits approval that it will be capable of
obtaining planning consent. It must always be remembered
that the preferred standard is that contained in Table
Mar/1.'
I have considerable difficulty with His Honour's analysis. I
am unable to agree that the use of the word "should"
indicates an intention that the principle be mandatory. The
word "shall" is prima facie a word of mandatory import. The
same can be said of the word "must" which is now fashionable
with Parliamentary Counsel as a synonym for "shall". I think
that the use of "should" rather than "shall" or "must"
indicates that the sense is not mandatory. The standards
specified in the principle are the goal to be aimed at and
the planning authority is to be guided by those standards in
considering an application for consent. Moreover I do not
understand the standards in the Table Mar/1 as necessarily
preferred standards. Compliance with those standards makes
the development a permitted development and no further
consideration is required. If they are not complied with
consideration is required in order to decide whether consent
should be granted. That does not necessarily mean that a
development which does not comply with the table, may not
contain elements which render it preferable to one complying
with the table.
Although I consider that Principle No. 37 is not expressed
in mandatory language, it must be stressed that it is not
the language of the Principle which determines whether
compliance with it is mandatory in the sense of binding the
planning authority to refuse consent. No principle of
development control can be mandatory in that sense because
by s.47 of the Act the planning authority is empowered to
grant consent unless the proposed development "is seriously
at variance" with the provisions of the plan.
I accept Debelle J's assessment of the importance of
Principle No. 37 and his reasons for that assessment. In
many cases non-compliance with it is likely to be decisive
in the planning authority's consideration of an application.
I am unable to agree, however, that an application must be
refused, as a matter of law, if the proposal does not comply
with the standards in Principle No.37 or 'the departure from
those standards is minimal and the proposal in other
respects merits planning consent.' I do not think that it
can be postulated that a departure, unless minimal, must
necessarily and in all circumstances render the proposed
development 'seriously at variance' with the provisions of
the plan.
His Honour also considered that it was an error of law to
treat "the standard of Principle 37 in the same way as any
other standard or objective in the Development Plan." I
consider that that goes too far. Principle No. 37 no doubt
has a very important purpose, but whether it is more
important than other standards and objectives in the Plan
must depend, in my opinion, on the particular proposed
development and all the surrounding circumstances. That is
a matter for the judgment of the planning authority and
ultimately for the Court on the appeal." (See also District
Council of Angaston v Hamilton (1995) 64 SASR 110 at
pp117-118.)
46. I have given anxious consideration to the argument of Mr Hayes that the departure from Principle 27 is "of such magnitude ... that observance of the planning regime imposed by the Act requires that, to accommodate it, there be an amendment to the plan" (per King CJ in the City of Munno Para case at p404), and that the consent should be quashed. The case is certainly not on all fours with the Courtney Hill case, but that case clearly establishes that an extension of an existing and operating facility even of a non-complying use is not necessarily a development "seriously at variance", and that any proposal must be judged in the context in which it is to occur. Non-compliance with Principle 27 certainly was substantial, but compliance therewith is not mandatory. If the second defendant had refused consent, I doubt whether an appeal by the first defendant could have succeeded, but this is an application for judicial review. I stress that "Councillors do not make decisions in a vacuum; they have local knowledge and general knowledge which is available to inform them on issues which they have to consider", see the Hospital Action Group case, supra, at p195. Moreover, the proposal was not at variance with any relevant objectives. I can not conclude in all the circumstances that the relevant decision should be quashed as ultra vires. I am prepared, however, to state that if my conclusion had been to the contrary, I would have ruled that the plaintiff had locus standi, but in the exercise of my discretion, refused the relief sought.
47. Rule 98.06 of the Supreme Court Rules states:
"Subject to any enactment, or order of the Court granting an
extension of time, a summons for judicial review must be
issued within six months from the date when grounds for the
review fist arose, and shall in all cases be made as
promptly as possible."
48. It is to be noted that the words I have underlined were not in the repealed 0.59 r10.
49. On the question of delay, I was referred to The Queen v Corporation of the City of Tea Tree Gully; ex parte Concrete Systems Pty Ltd and Ors 133 LSJS
277. In a judgment with which King CJ and Mohr J agreed, von Doussa J said at pp283-284:
"0.59 r.10 requires the proceedings for certiorari to be
brought within 6 months of the date of the proceeding under
challenge. That time limit was met, but that is not
necessary an answer to delay by the prosecutors. In R. v.
Aston University Senate Ex parte: Roffey (1969) 2 QB 538
Donaldson J, as he then was, said at p 555:-
'The prerogative remedies are exceptional in their nature
and should not be made available to those who sleep upon
their rights.'
And in R. v. Herrod Ex parte: Leeds City District Council
(1976) l QB 540 Lord Denning said at p 557:-
'The truth is, of course, that certiorari is not an appeal
at all. It is an exercise by the High Court of its power to
supervise inferior tribunals; see Rex v. Northumberland
Compensation Appeal Tribunal, Ex parte Shaw (1952) l KB
338, 346-347. The time limit of six months is not an
entitlement. It is a maximum rarely to be exceeded. Short of
six months, there is the overriding rule that the remedy by
certiorari is discretionary. If a person comes to the High
Court seeking certiorari to quash the decision of the Crown
Court - or any other inferior tribunal for that matter - he
should act promptly and before the other party has taken any
step on the faith of the decision. Else he may find that the
High Court will refuse him a remedy. If he has been guilty
of any delay at all, it is for him to get over it and not
for the other side. In support, I would refer to Reg. v.
Sheward (1880) 5 Q.B.D. 179; 9 Q.B.D. 741, where five months
had elapsed. And in Rex v. Glamorgan Appeal Tribunal, Ex
parte Fricker (1917) 33 TLR 152, Lord Reading CJ said,
at p 153: "... the applicant could not succeed because he
had allowed more than two months to elapse before raising
any objection to what had happened. If anything wrong had
taken place, the party aggrieved should move at once."
So also Rex v. Stafford Justices, Ex parte Stafford
Corporation (1940) 2 KB 33, 45 By Sir Wilfrid
Greene M.R.'"
50. His Honour decided that it had not been established on the facts of the case that the prosecutors had slept on their rights or had been guilty of unreasonable delay, and granted the relief sought.
51. I also refer to Ex Parte Savage (1989) WAR 46 at p53 and to R v Secretary of State for Health and Another, ex parte Furneaux and Others (1994) 2 All ER
652, where the fact of delay was decisive.
52. The proceedings herein were not issued until 2 November 1995. In my opinion the plaintiff did not issue them "as promptly as possible". In considering the delay, it must also be remembered that Mr Kaufman knew about the success of the first application early in October 1994, and the plaintiff took no action then. Mr Kaufman knew about the relevant decision, and about the procedure of applying for judicial review in early July 1995. The delay until November is unexplained. Woolworth (SA) Ltd has not lent its name to the proceedings or sought to explain the delay. There was no real challenge to the first defendant's evidence that it incurred very substantial costs between the second defendant's consent and the issue of these proceedings. At the end of his argument, Mr Hayes indicated that if I reached the position in considering my decision that the only obstacle in the path of the plaintiff obtaining the relief it seeks was the financial prejudice allegedly suffered by the first defendant, he was instructed to intimate that if the consent was quashed and any rights of appeal were abandoned, the plaintiff would reimburse the first defendant up to $100,000 for any expenses that it could prove it has incurred. I do not find this an attractive solution. There is no authority for any order that such a solution would require, and I reject it.
53. In considering the question of delay, it is also proper, in my view, to take into account the time limits for the relevant statutory appeals. The plaintiff had no right of appeal, but if the first defendant had been refused consent by the second defendant it had two months within which to appeal to the Environment, Resources and Development Court, see Development Acts86(4). I also notice that an appeal under s38(4) must be commenced within fifteen business days after the relevant decision. An unsuccessful party to an appeal to the Environment, Resources and Development Court has fourteen days within which to appeal to the Supreme Court (see Environment, Resources and Development Acts30 and Rule 96AA.03 of Supreme Court Rules.)
54. For those reasons, I could not have excused the plaintiff's delay, and the plaintiff would not have succeeded even if successful upon all other matters.
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