Revelop Building and Developments Pty Ltd v State Planning Commission - [2023] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
REVELOP BUILDING AND DEVELOPMENTS PTY LTD v STATE PLANNING COMMISSION
[2023] SASC 176
Judgment of the Honourable Justice Blue
13 December 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
Appeal against an order by the Environment Resources and Development Court joining the respondents as additional respondents to an appeal against a decision by the State Planning Commission.
The Commission’s decision refused planning consent in respect of a proposed development classified by the Planning and Design Code as “restricted development”. Restricted development is governed by section 110 of the Planning, Development and Infrastructure Act 2016 (SA).
A person who makes written representations in relation to restricted development is entitled to notice from the Commission in relation to its decision on the application. A person entitled to notice is entitled, under section 202, to appeal against the decision.
Section 17 of the Environment Resources and Development Court Act 1993 (SA) confers a general power on the Environment, Resources and Development Court to join a person as a party to any proceeding in the Court.
The appellant contends that the Court:
1erred in proceeding on the basis that section 205(2)(c) of the Act did not apply to the joinder applications by the respondents;
2(in the alternative) if section 205(2)(c) of the Act did not apply, erred in holding that the Court could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c);
3(in the alternative) in exercising the discretion under section 17 of the Environment Court Act in circumstances in which section 205(2)(c) of the Act did not apply:
(a)    erred in holding that the respondents were not required to establish a “special interest”;
(b)    erred in holding that the respondents were not required to establish that they were adversely affected as required by the High Court in Argos Pty Ltd v Corbell;
(c)     erred in distinguishing the decisions in Remibisi Pty Ltd v City of Salisbury and Leasecorp Aldinga Pty Ltd v City of Onkaparinga;
(d)    erred in failing to determine, as required by the Full Court decision in Pitt v Environment, Resources and Development Court, whether the respondents’ interests would be prejudicially affected by an order that could be made on the appeal;
(e)     erred in making a joinder order in the absence of evidence that the respondents’ interests would be adversely affected by the proposed development;
(f)     erred in concluding that the interests of the respondents as owners of commercial land more than 3.5 kilometres from the proposed development were sufficient to justify joinder;

4 erred in acting on:
(a) submissions, unsupported by evidence, as to the claimed interest of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Revelop Building and Developments Pty Ltd v State Planning C...

Details

AGLC: Revelop Building and Developments Pty Ltd v State Planning Commission [2023] SASC 176
Case: [2023] SASC 176
Decision Date: 13 December 2023

CaseChat Overview and Summary

The case of Revelop Building and Developments Pty Ltd v State Planning Commission involved a dispute regarding a development application for a new shopping centre. The Wakefield Companies opposed the application, arguing that it would undermine the established retail framework of Gawler and contravene the planning policies set out in the Code. The case was heard in the Supreme Court of South Australia, which has jurisdiction over environmental planning matters.

The legal issues before the court included whether section 205(2)(c) of the Environment Court Act applied to the joinder applications made by the Wakefield Companies, and whether the Commissioner had erred in the exercise of the general discretion under section 17 of the Act. The Wakefield Companies argued that the Commissioner had not properly considered the interests of justice and other appropriate factors in deciding whether to allow their joinder applications.

The court found that the exception in parentheses in section 205(2)(c) applied to the Wakefield Companies, and that section 205(2)(c) had no application to their joinder applications. The court also found that the Commissioner did not err in the exercise of the general discretion under section 17 of the Act. The Commissioner had properly considered the interests of justice and other appropriate factors in deciding whether to allow the joinder applications. The court rejected the Wakefield Companies' argument that the Commissioner had not considered the interests of justice and other appropriate factors, finding that the Commissioner had exercised a general discretion.

The court dismissed the appeal and ordered Revelop to pay the costs of the Wakefield Companies.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Wakefield Companies contend that section 205(2)(c) did not apply to their joinder applications; considerations under section 17 of the Environment Court Act are quite different in a case (such as the present) in which the joinder applicant has a right of appeal against a grant of planning consent to those in a case in which it does not (such as in the decisions relied upon by Revelop); and the Commissioner was not bound by the rules of evidence and in any event there was evidentiary material before him to justify the findings made by him.Background The existing Gawler Park Homemaker Centre comprises 13,177 square metres. It is located at the intersection of Main North Road and Para and Potts Roads immediately south of Gawler. On 28 February 2022 Revelop lodged its application for development consent. It lodged in support of it an Economic Impact Assessment that had been prepared by Macroplan in May 2020. On 20 June 2022 the Wakefield Companies each made written representations to the Commission opposing the proposed development. Wakefield is the owner of Gawler Central Shopping Centre in central Gawler comprising approximately 6,200 square metres anchored by a Coles supermarket. It is situated in the Township Main Street Zone. Wakefield No 6 is the owner of Springwood Place Shopping Centre in Gawler East comprising approximately 3,400 square metres anchored by a Drakes supermarket. It is situated in the Emerging Activity Centre Sub Zone. The Wakefield Companies made representations largely in similar terms. They contended that the Code provides for shopping centres to be located in Activity or Main Street Zones within a hierarchy (by reference to size and catchment area) ranging downwards from the Urban Activity Centre Zone through the Suburban Activity Centre and Main Street Zones and the Township Activity Centre and Main Street Zones to the Local Activity Centre Zone. The Wakefield Companies contended that the Code provides that shops outside Activity and Main Street Zones and in the Employment Zone are to be relatively small-scale and complement large scale shopping in the Activity and Main Street Zones. They referred to Desired Outcome 1 and Performance Outcome 1.2 for the Employment Zone. The Wakefield Companies contended that:[T]he proposed supermarket, bottleshop and shop tenancy will effectively function as an activity centre and will not complement role of existing activity centres in Gawler but will diminish the role of existing activity centres as the primary locations for shopping.We are concerned that an approval of this application would amount to, effectively, a complete re-zoning of the subject land, given the dramatic departure from legislator planning policy and completely undermine the established retail framework of Gawler as directed by the Code.…As outlined above, the strategic implications and corresponding impacts of the proposed development will undermine the retail hierarchy in the town of Gawler and detrimentally affect as nurse, rather than demonstrating economic, environmental or social benefit.…Full de-regulation of the retail centres hierarchy can ultimately undermine the viability and result in the failure of existing centres in Main Street and retail core areas resulting in the poor or fragmented spatial distribution of centres that do not equitably service all population catchments. [16][16] Underling in original.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to its text, context and evident purpose, the words “prescribed circumstances” in the exception contained in parentheses in section 205(2)(c) encompass circumstances prescribed by the Act itself.Conclusion The exception in parentheses in section 205(2)(c) applied to the Wakefield Companies. Section 205(2)(c) had no application to their joinder applications. The Commissioner did not err in proceeding on that basis. This ground of appeal is not established.Matters taken it into account under section 17 Revelop contends that, on the assumption that section 205(2)(c) of the Act did not apply (as I have concluded), the Commissioner held that the Court could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c) in the exercise of the general discretion under section 17 of the Environment Court Act and, in so doing, erred. This contention is not the subject of a ground of appeal. However, the Wakefield Companies take no issue with Revelop raising this contention in submissions on the appeal and I therefore address it on its merits. The Wakefield Companies accept that the mere fact that section 205(2)(c) of the Act does not apply does not preclude the Court from taking into account in the exercise of the general discretion under section 17 of the Environment Court Act the matters listed in the subparagraphs of section 205(2)(c). The Wakefield Companies contend that the Commissioner did not hold otherwise. The three matters identified in the subparagraphs of section 205(2)(c) are:1the interest of the joinder applicant in the subject matter of the application;2the interests of justice; and 3any other appropriate matter. If the Commissioner had held that none of these matters could be taken into account in the excise of the discretion under section 17, it would have entailed that the Court was and is bound to grant a joinder application and has no discretion to refuse it. The Commissioner did not so hold and, on the contrary, exercised a general discretion. Revelop relies on paragraphs [48] and [69] of the Commissioner’s reasons. At paragraph [48], the Commissioner said:Regardless, the terms of s 205(2)(c) under the PDI Act (which ostensibly reproduce those of s 88(2)(c) of the Development Act) make it clear that the additional joinder considerations apply “other than” in respect of “a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant) …”. Accordingly, a representor who is entitled to be given notice in a restricted development matter, per s 110(6)(a)(i), is not expected to demonstrate a ‘special interest’ in order to join as a party to any associated court proceedings.[22] [22] Italics in original. Paragraph [48] appears in a section of the Commissioner’s judgment under the heading whether a “special interest” was to be established. The Commissioner was merely saying that a “special interest” is not a prerequisite under section 17 when section 205(2)(c) does not apply.[23] The Commissioner was not saying that the Court cannot have regard to the interest of the applicant in exercising the general discretion under section 17. The Commissioner did not make any reference in that paragraph to the interests of justice or other appropriate factors.[23] Which is itself a contention with which Revelop takes issue and which is addressed in the next section below.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.