Polites v City of Holdfast Bay & Anor No. Scgrg-98-1304 Judgment No. S6871

[1998] SASC 6871

POLITES v CITY OF HOLDFAST BAY and S J SALISBURY CONSTRUCTIONS PTY LTD

[1998] SASC 6871

Land & Valuation Division

Debelle J

1. This application for judicial review seeks an order in the nature of prohibition against the defendant council restraining it from proceeding to determine an application to construct a dwelling and two semi-detached dwellings on land at Somerton Park. The issue arises out of the categorisation of the proposed development for the purposes of giving notice pursuant to s38 of the Development Act.

2. The council has determined that the appropriate category is Category 1.  The plaintiff asserts that the appropriate category is Category 3.   The determination of the correct category bears upon the question whether adjoining owners are entitled to lodge representations in relation to a proposed development and, if development consent is granted, appeal from the decision of the relevant planning authority granting development consent.  In addition to the application for an order in the nature of prohibition, the plaintiff, on its summons for directions, seeks a stay preventing the council from hearing and determining the application. 

3. The application for development consent was lodged sometime in late August or early September.  On 7 September 1998, the council informed the plaintiff of the application and of the fact that it categorised it as a Category 1 development.  The characterisation was disputed by the plaintiff.  By letter dated 18 September 1998, the council wrote to the plaintiff's solicitors stating that it adhered to its decision that the development was a Category 1 development.  The letter advised that the matter was being considered by the council at its meeting on Tuesday, 22 September.  The plaintiff seeks a stay preventing the council from hearing and determining the matter tonight. 

4. As to the question of a stay, I believe that the order sought is in the nature of an injunction and, therefore, it is appropriate for me to apply the tests which must be satisfied if a party is to obtain an injunction: R v Inspectorate of Pollution; ex parte Greenpeace Ltd [1994] 4 All ER 321.

5. The first issue is whether this is a serious question to be tried. The question of the proper category to be assigned to this development turns on the meaning of para 2 of Schedule 9 of the Development Regulations 1993 and of the definitions of “detached dwelling” and “semi-detached dwelling” in Schedule 1 of those regulations. There is an issue whether the detached dwelling that forms part of this development occupies a site held exclusively from a pair of semi-detached dwellings which are on the same allotment of land. Conversely, there is an issue whether the semi-detached dwellings are held exclusively from the detached dwelling. That issue does give rise to a serious question to be tried as to the meaning and effect of Schedule 9 and the definitions in Schedule 1 of the Regulations.

6. I turn to the question of balance of convenience.   As Mr Crotti, who appeared for the developer, pointed out, there has been some delay on the part of the plaintiff.   It was open to the plaintiff to have applied earlier than the day of the council meeting.  I do not think the delay is, however, of such an order that it should bar the plaintiff’s entitlement to relief.  There might even be a question of whether the matter would have been any further advanced had he acted earlier.  In my view, the issue of balance of convenience is quite clear.  If a stay is not ordered, the council might hear and determine the application tonight and grant the development consent.  At worst, a stay would delay the developer only to the next meeting of the council.  For those reasons, I believe that the balance of convenience favours the granting of the stay.  I am encouraged in that view because it will also be possible to hear and determine this issue within the next few days.   The issue is one which is in very narrow compass and is to be determined by an examination of the plans which are the subject of the application and the terms of Schedules 1 and 9.

7. As already mentioned, the order in the nature of the stay is, in truth, an order for an injunction.  It is appropriate, therefore, that the usual undertaking as to damages should be given if the injunction is to be ordered.  The undertaking is required notwithstanding that it is for the benefit of a third party, in this case the developer.  In this context, I refer again to the decision in R v Inspectorate of Pollution, ex parte Greenpeace Ltd (supra).  Mr Hayes, who appears for the plaintiff, has urged that these proceedings are in the nature of public interest proceedings and it is, therefore, not appropriate to require an undertaking as to damages.  I do not share that view.  In my view, this is litigation which is very much private interest litigation, albeit that others might be interested in the proceedings and, if the plaintiff obtains its order, those persons might seek to have the benefit of it. 

8. In the absence of the undertaking, I am not prepared to order the injunction.  I will hear the matter at 10 o'clock on 24 September.