North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide

NORTH ADELAIDE VILLAGE SHOPPING CENTRE PTY LTD
(ACN 083 513 946)
v
THE CORPORATION OF THE CITY OF ADELAIDE
[2002] SASC 135
Land and Valuation Division

BESANKO J The plaintiff has issued a Summons pursuant to Rule 98 of the Supreme Court Rules 1987 seeking a declaration that a certain Development Application dated 15 October 2001 (A/806/2001) made by Chasecrown Pty Ltd (“Chasecrown”) to the Corporation of the City of Adelaide (“City of Adelaide”) is for a Category 3 development pursuant to the provisions of the Development Act 1993 (“the Act”). The plaintiff also seeks an order in the nature of certiorari quashing a Provisional Development Plan Approval dated 22 January 2002 and granted by the City of Adelaide in relation to the aforesaid Development Application.
The plaintiff has filed an affidavit of Mr Kenneth Samuel Cooney sworn on 27 March 2002 in support of the Summons. The plaintiff has also taken out an Application for Directions under Rule 55 of the Supreme Court Rules in which it seeks leave to serve the proceedings upon the City of Adelaide.
The plaintiff’s Application for leave to serve the proceedings came before me on Friday 19 April 2002. Counsel for Chasecrown appeared and sought permission to be heard on the question of whether leave to serve should be granted. I granted the Application (see Rule 98.04A(3)) as it seemed to me that Chasecrown had a proper interest in the matter, and the question of whether leave to serve should be granted was by no means straightforward.
The test I apply in considering whether leave to serve should be granted is whether the plaintiff has an arguable case with respect to one or more of the grounds upon which relief is sought.[1]
[1] King v Strickland and Lewis (1993) 171 LSJS 398
The Facts
The facts set out below are taken from Mr Cooney’s affidavit.
The plaintiff owns the North Adelaide Village Shopping Centre. The shopping centre is situated at 63-83 O’Connell Street, North Adelaide. The site is on the northwestern corner of the intersection of O’Connell Street and Archer Street in North Adelaide.
The plaintiff purchased the site from the Superannuation Funds Management Corporation of South Australia in 1997. The centre is 6874.3 square metres in area and consists of a supermarket and a variety of smaller shops. The centre includes a carpark with 243 carparking bays. It is asserted by the plaintiff that the centre is fully tenanted and is a busy shopping centre. The carpark is a key component in the centre as there is little on-street carparking available in the locality.
Since acquiring the centre, the plaintiff has discovered that the carpark is used by members of the public who are not customers of tenants of the shopping centre. Mr Cooney deposes to the fact that this has been difficult for the plaintiff to monitor and control.
The plaintiff has taken steps to discourage members of the public who are not customers of tenants of the shopping centre from using the carpark. The steps are set out in the affidavit of Mr Cooney. He states that the plaintiff opposes the use of the carpark by members of the public generally as it is a service provided for the customers of the shopping centre. It is significant that Mr Cooney does not depose to the fact that the carpark is no longer used by members of the public who are not customers of tenants of the shopping centre.
Chasecrown owns land at 54-60 O’Connell Street, North Adelaide. This land is on the corner of the intersection of O’Connell Street and Archer Street. It is opposite the plaintiff’s shopping centre.
On 15 October 2001 Chasecrown applied to the City of Adelaide for development approval to redevelop the site, and to increase the area used for retail shops. The City of Adelaide treated the Development Application as a Category 2 development and invited the plaintiff to make representations. The plaintiff made representations to the City of Adelaide. The plaintiff opposed the development and emphasised the lack of carparking provided by the development and referred to the requirements for carparking set out in the Development Plan.
A Provisional Development Approval dated 22 January 2002 was granted to Chasecrown by the City of Adelaide.
The plaintiff purported to appeal to the Environment Resources and Development Court against the granting of the Approval. The plaintiff alleged (among other things) that the City of Adelaide erred in law in treating the Development Application as a Category 2 development. The plaintiff asserted that the Development Application should have been dealt with as a Category 3 development, and that accordingly there was a right of appeal to the Court from the decision of the City of Adelaide. There is no right of appeal against the granting of Approval in the case of a Category 2 development.
On 26 March 2002 His Honour Judge Bowering of the Environment Resources and Development Court held that that Court did not have jurisdiction to entertain an appeal by the plaintiff based on an assertion that the City of Adelaide had incorrectly characterised the development as a Category 2 development. In other words, the Court did not have power to quash an Approval on the ground that the City of Adelaide had incorrectly characterised the development as a Category 2 development.
The Grounds Upon which the Orders are Sought
Pursuant to Rule 98.04(1), the plaintiff particularised the grounds upon which it sought the declaration and the order in the nature of certiorari. The grounds are as follows:-
“(a)The Development Act provides that the Development Plan may assign a form of development to Category 2 and if no category is assigned then the development is Category 3.
(b)In this case the subject land is in the MSI O’Connell Precinct in the Adelaide City Development Plan and the said Precinct purports to assign all development as Category 2 other than development classified as non-complying or which falls within Part (a) of that provision.
(c)The said Development Plan has not in accordance with the Act, assigned a form of development to Category 2 and accordingly, this development is Category 3.
(d)The defendant in assessing the said application incorrectly had regard to the plaintiff’s car park pursuant to Principle 51 of the Development Plan, as being available to make up the shortfall of on site parking provided by the development.
(e)The defendant erred in law in treating the plaintiff’s carpark as a public carpark for the purpose of assessing the carparking provision required for the development.
(f) The defendant failed to give any or any adequate consideration to the fact that the development did not provide for sufficient on site carparking spaces.”
Category 2 or Category 3 (Grounds (a), (b), (c))
The City of Adelaide decided that the Development Application was for a Category 2 development. As I have said, a third party has no right of appeal to the Environment Resources and Development Court against a decision to grant an approval in the case of a Category 2 development. A third party has a right of appeal against a decision to grant an approval in the case of a Category 3 development (s 86 (1) of the Act). An incorrect characterisation by the planning authority will be sufficient to found orders on a summons for judicial review.
Section 38 of the Act relevantly provides:
“(1)There will be three categories of development for the purposes of this section –
(a)     Category 1 development; and
(b)    Category 2 development; and
(c)    Category 3 development.
(2)Subject to subsection 2(a), the following provisions apply in relation to the assignment of developments to those categories:
(a)     The regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b)    Any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.”
The subject land is in MS1 O’Connell Precinct in the Development Plan. The relevant section of the Plan provides:
“Public Notification
For the purposes of public notification in accordance with the procedures and rights established by the Development Act 1993, development in the Precinct is assigned to the specified categories as follows:
(a) Category 1, public notification not required:
(i)Advertising displays (except those classified as non-complying);
(ii)development which, in the opinion of the relevant planning authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development;
(b)Category 2, public notification required, third parties may, at the discretion of Council, appear before Council on the matter. Third parties do not have appeal rights:
(i)all development, other than development classified as non-complying or which falls within part (a) of this provision.”
The proposed development is not a non-complying development.
Counsel for the plaintiff argued that the City of Adelaide did not “assign a form of development to Category 2” by referring to “all development”. It was argued that the use of the words “assign a form of development” in s 38 (2)(a) means that the Council must specify particular forms of development that are Category 1 or Category 2 developments. Counsel referred to the importance of the decision to assign a form of development to a particular category in terms of the rights to object, to appear before the planning authority, and to appeal. Counsel for the plaintiff argued that the result was that the subject development had not been assigned as a Category 2 development under s 38(2)(a) of the Act.
The plaintiff’s argument amounts to an attack on the validity of this part of the Development Plan.
I see no reason to read into the Act a restriction on the number of forms of development which may be assigned to Category 2, or a requirement that there must be a residual number of unspecified forms of development which are Category 3 development. The question then becomes whether there is anything in the Act which requires each form of development assigned to Category 2 to be specified. I do not think there is anything in the Act to this effect. There is no reason why all forms of development may not be assigned to Category 2 other than forms of development assigned to Category 1 or Category 3.
I do not think that this point is arguable, and I would not grant leave to serve on these grounds.
Whether the Plaintiff’s Carpark is a Public Carpark – an Irrelevant Consideration (Grounds (d) and (e))
Principle 51 of the City of Adelaide Development Plan provides as follows:
“Adequate car parking should be provided to meet the demand generated by a development, within the site area of the development.
Off-street parking should:
(a)be controlled in accordance with the provisions for the relevant Precinct;
(b)be located away from street frontages or designed as an integral part of buildings on the site; and
(c)not include separate garages or carports in front of buildings within front set-backs.
If garaging is provided on a public street frontage, this should take up no more than 50 percent of the allotment width on that frontage.
Undercroft parking should present a solid wall to the street frontage or be otherwise screened from public view.
A development application should include an estimate of the car parking required by the proposed development and an indication of how the parking need will be met. It should take into account the availability of on-street parking spaces on the site frontage and available capacity in off-street car parking facilities which are accessible by members of the public in the locality.”
The plaintiff put before the Court what it said were the agenda papers which went to the City of Adelaide (or its relevant committee) when it was considering Chasecrown’s Development Application. Those papers included a document called a Planner’s Assessment. The minutes of the Council (or its relevant committee) containing the approval were not put before the Court.
The Planner’s Assessment contains some 16 points. Five points deal with carparking and are as follows:
“11.The proposal is within the Main Street District, where the Development Plan calls for parking to be provided on site, but allows development to rely upon on-street parking on the site frontage and also any off-street carparking facilities in the locality.
12.Using the carparking generation rates in the Development Plan, the proposal has a net shortfall of 31 on-site spaces.
13.The applicant has submitted a parking report, prepared by a qualified firm of engineering consultants, which argues consideration should be given to the following:
-        The proposal involves mixed use where peak car parking demand for the various uses are unlikely to occur simultaneously. This would reduce excess demand to between 8-21 spaces.
-       There is limited parking available within the on-street parking adjacent to the site.
-       There is ample car parking available within the North Adelaide Village car park.
14.Clearly the development does not provide adequate parking provided on the site or site frontage. However, there is ample parking supply within the public parking facility located at the North Adelaide Village Centre. The survey undertaken by the applicant’s traffic consultant indicates that at worst case scenario there are 178 spaces available in this car park. This public car park is located within 100 metres of the subject site.
15.The Development Plan allows for additional demand generated to be met by the Village car park.”
The plaintiff argues that the carpark it owns is not “a public parking facility”. The relevant section of the Development Plan contains a provision which authorises the City of Adelaide to take into account “offstreet carparking facilities which are accessible by members of the public in the locality”. It does not authorise the City of Adelaide to take into account carparking facilities which are in private ownership, and which are not accessible by members of the public in the locality. The plaintiff argued that by taking into account the plaintiff’s carpark, the City of Adelaide has taken into account an irrelevant consideration.
In response to this argument, it may be said that the consideration the City of Adelaide took into account, namely, the presence of a parking supply by a public parking facility was clearly a relevant consideration, and that if there was an error, it was an error of fact as to whether the plaintiff’s carpark was a public parking facility. This fact is a non-jurisdictional fact, and an error as to a non-jurisdictional fact will not form the basis for orders on an application for judicial review unless (arguably) there is no evidence to support the fact found by the administrative body or tribunal.[2]
[2] Craig v The State of South Australia (1995) 184 CLR 163; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 – 357; Minister for Immigration v Eshetu (1999) 197 CLR 611 per Gummow J at 654; Corporation of the City of Enfield v Development Assessment Commission & Anor (1999) 199 CLR 135
As to whether there was any evidence to support the conclusion that the plaintiff’s carpark was a public parking facility (to use the terminology in the Planner’s Assessment) or was an off-street carparking facility which is accessible by members of the public in the locality (to use the terminology in Principle 51) I note the following:
1. Mr Cooney does not state that members of the public do not use the plaintiff’s carpark; and
2. In commenting on the plaintiff’s carpark Chasecrown’s traffic expert (Murray F Young and Associates) states in a report which forms part of the agenda papers the following:
“It is understood from the operators of this carpark that parking is available for the general public even during trading hours of the shopping centre, although free parking is limited to two hours duration at such periods.”
There is much to be said for the proposition that at its highest, the plaintiff’s complaint as particularised in grounds (d) and (e) is that the City of Adelaide made an error in relation to a fact not going to jurisdiction. The material presently before the Court suggests that there was at least some evidence before the City of Adelaide to support the “finding” it made.
Nevertheless, I note that the only question before me at the moment is whether the plaintiff’s case on these grounds is arguable. I must decide that question in circumstances in which I have not had the benefit of full argument and where there may be further material which will put the facts in a different light. In my opinion, the plaintiff’s case on these grounds is arguable. In Reg v Criminal Injuries BoardEx p. A[3] Lord Slynn of Hadley cited with approval the following passage from de Smith Wolfe and Jowell, Judicial Review of Administrative Action, Fifth Edition (1995) p 288:
“The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.”
[3] [1999] 2 AC 330 at 345; Aronson and Dyer, Judicial Review of Administrative Action 2^nd ed (2000) p 205 - 211
In my opinion, it is arguable that an error about the status of the plaintiff’s carpark has led to an error of law.
No Consideration or No Adequate Consideration Given to the Lack of On-Site Carparking Spaces (Ground (f))
In my opinion, this ground is not arguable.
The plaintiff relies on the Planner’s Assessment as evidencing the matters taken into account by the City of Adelaide. This document clearly indicates that the council was aware the development did not provide adequate parking on the site or site frontage.
Having regard to the Planner’s Assessment and the other documents in the agenda papers, I do not think that it can be said that the City of Adelaide failed to give any consideration to the fact that the Development Application did not provide sufficient carparking spaces on the site.
The argument that the City of Adelaide did not give adequate consideration to this issue is an attack on the merits of the decision and is not a ground upon which orders would be made on an application for judicial review.
Conclusion
I would refuse the application for leave to serve the proceedings in so far as it is based on the grounds set out in paragraph 34(a), (b), (c) and (f) of Mr Cooney’s affidavit sworn on 27 March 2002. I would grant leave to serve the proceedings in so far as it is based on the grounds set out in paragraph 34 (d) and (e) of Mr Cooney’s affidavit.

[2002] SASC 135

23 April 2002