Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2)

[2001] SASC 34

SIDNEY HARRISON PTY LTD & ANOR v CORPORATION OF THE CITY OF TEA TREE GULLY & ANOR (NO 2)
[2001] SASC 34

Land and Valuation Division

1................ DEBELLE J...... The facts leading to this action are set out in my reasons in Sidney Harrison Pty Ltd and Another v Corporation of City of Tea Tree Gully and Another [2001] SASC 27. As stated therein, this action involves several quite discrete issues. I have made orders enabling them to be heard and determined separately.

1. The plaintiffs seek a number of orders in the nature of declarations. These reasons deal with the orders sought in paras 1 to 8 of the summons. The defendants do not adduce any evidence or argument in opposition to the orders sought in paras 1 to 3 of the summons. The plaintiffs have indicated that upon orders being made in terms of paras 1 to 3 of the summons, they will discontinue the action insofar as it concerns the relief sought in paras 4 to 8 of the summons. There is a possibility that the plaintiffs may later seek to litigate the issues in paras 7 to 8. Both defendants agree that the plaintiffs are at liberty to do so, if so advised, and state that they will not contend that there is any bar to the plaintiffs doing so either by reason of res judicata, issue estoppel, the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 or on any other ground.

2. The orders sought in paras 1 to 3 essentially concern the question whether a development approval granted to the defendant, Network Design and Construction Pty Ltd (“NDC”) by the Corporation of the City of Tea Tree Gully (“the Council”) on 3 October is invalid. The determination of that issue requires at least two questions to be decided. They are, first, whether the telecommunications tower, the subject of the application by NDC dated 7 July 2000 was a Category 1 or a Category 3 development and, secondly, whether the Council has observed the procedures prescribed by the Development Act 1993 and Development Regulations 1993 before granting development approval on 3 October 2000. I deal first with the question of whether the telecommunications tower is a Category 1 or a Category 3 development.

3. The classification of forms of development into Categories 1, 2 and 3 is effected by s 38(2) of the Development Act and Regulation 32 and Schedule 9 of the Development Regulations. Schedule 9 describes those developments which are classified as Category 1 or 2. Any development which is not assigned a category is deemed to be a Category 3 development: s 38(2)(b) of the Development Act.

4. The evidence shows this telecommunications tower is 30.85 metres high. The tower has already been constructed. It is located in a Special Use Zone. It is common ground that it is neither a complying development nor a non-complying development under the Council’s Development Plan. Para 6(1)(b) of Schedule 9 expressly provides that telecommunication towers which do not or will not exceed 30 metres in height and which are in certain zones shall be classified as Category 1. The list of zones comprises zones for commercial or industrial use. It does not include residential zones or special use zones. As the proposed tower is to be located in a Special Use Zone and as it is more than 30 metres high, para 6(1)(b) does not assist.

5. The next issue is whether the proposed tower is a Category 1 development by reason of para 2(1)(f) of Schedule 9 which reads:

   “A kind of development which, in the opinion of the relevant 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.”

It will be noticed that the operation of para 2(1)(f) turns on the opinion of the relevant planning authority. Para 2(1)(f) requires the relevant planning authority to consider two issues, namely, whether the development is of a minor nature and whether it could be the subject of reasonable objection. The plaintiffs will succeed if they prove only one of those two elements.

1. Although the Council has classified the development as Category 1, the reasons for this decision have not been proved. I do not know whether they are even available. The fact that the Council has later decided to classify the development as Category 3 might be said to call into question the validity of its earlier decision but that is an irrelevant matter and I ignore it. As there are no reasons for the Council’s decision, it is not possible to determine whether it even considered para 2(1)(f). If it did not, it has failed to have regard to a relevant factor. If it did, the only basis upon which this decision can be set aside is on the ground of Wednesbury unreasonableness, that is to say, on the ground that the Council’s decision that the development was of a minor nature only and is unlikely to be the subject of reasonable objection was so unreasonable that no reasonable planning authority could have reached such decision: Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 – 230; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41.

2. This tower is 30.85 metres high. In other words, it is about 100 feet high. The photographs which have been tendered show that it is of solid construction in the sense that it appears to be a tapering cylindrical tube. It is capable of being readily seen. It stands well above substantial trees in the area and on the plaintiffs’ land. The tower can be readily seen from a number of points including points on the plaintiffs’ land. Immediately adjoining the tower and at its base there is a substantial shed-like structure housing ancillary equipment. The tower and its ancillary equipment are bounded by a security fence, which is rectangular in shape. The fence is some 2.8 metres high and surrounds an area eight metres long and five metres wide. It is a cyclone mesh fence topped by barbed wire.

3. Because of its size, I do not think that any reasonable planning authority could conclude that the development was of a minor nature only. The photographs that have been tendered show that the tower is readily noticeable. For the reasons I have given, I am satisfied that the tower is of such a size and of such construction that it could not by any means be described as a development of a minor nature. In reaching this conclusion, I am conscious of the need for judicial constraint when determining whether the ground of unreasonableness has been established. I am conscious also of the need to avoid entering into any examination of the merits of the proposal: see Minister for Immigration v Eshetu (1999) 197 CLR 611 at 627 – 628. I have not mentioned the notorious fact that there is public controversy over the siting of these towers because of concerns over emissions. That is a matter which concerns the reasonableness of an objection but it is not an issue which is necessary now to determine.

4. The proposed tower does not come within any other class of development listed in Schedule 9. It is, therefore, not a Category 1 development. It is common ground that it is not a Category 2 development. It is, therefore, a Category 3 development by reason of s 38(2) of the Development Act.

5. In wrongly classifying the development, the Council has erred as a matter of law. That error has had the consequence that the Council has failed to comply with s 38 in the Development Act in that it failed to give public notice of NDC’s application and it has denied the plaintiffs and others the opportunity to make representations in respect of the proposed development. The Council has, therefore, failed to observe the procedures prescribed by the Development Act. It follows that the decision of the Council is invalid and must be set aside.

6. I cannot leave this matter without commending the parties for their assistance in enabling the prompt resolution of the issues which comprise a substantial part of the relief sought by the plaintiffs. All parties are to be congratulated and commended for their ability to identify the relevant issues and to identify those which can and cannot be argued.

7. I will in a moment make orders declaring that the proposed development was not of a minor nature, that the proposed development was a Category 3 development, and that the grant of development approval was invalid.

Costs

1. I turn to the question of costs.

2. The plaintiffs apply for orders that both defendants pay the costs it has incurred at all stages in these proceedings. As to the costs incurred by the plaintiffs in relation to the relief claimed in paras 1 to 8 of its summons, there was agreement between the parties that those costs should be paid by at least one defendant. There is dispute between the defendants as to whether the Council alone should pay those costs or whether the costs should be borne equally between the Council and NDC. The plaintiff applies for costs against both defendants in respect of the issues referred to in paras 14 and 15 of the summons. NDC does not, in any respect, seek costs against either the plaintiff nor as against the Council.  It submits that there should be no other order other than an order that it bear its own costs of these proceedings.

3. I deal first with the application for costs in respect of the relief claimed in paras 1 to 8 of the summons. A council has no power to revoke planning consent. In any event, even if it did, it is doubtful whether in this instance the Council could have revoked that planning consent, given that the telecommunications tower, the subject of this consent, had been erected by 1 October. When the plaintiffs challenged the grant of development consent, the Council asked its solicitors for advice. On examining the matter, the Council’s solicitors determined that their preliminary view was that the Council had erred in the manner in which it dealt with this planning application. On 18 October 2000 the Council’s solicitors wrote to NDC asking it to apply under s 43 of the Development Act to cancel the grant of development approval. Given that the tower was erected, it was not realistic to expect NDC to apply to cancel the approval.

4. The issues in paras 1 to 8 arise from the fact that the Council has not proceeded according to law when dealing with the development application by NDC. If a person applies for development consent, he is entitled to expect that the relevant planning authority will act according to law in dealing with it. Generally speaking, if a planning authority does not deal with a planning application according to law, the authority must bear whatever costs are incurred by a plaintiff who successfully applies to set aside the development consent. That principle will, of course, require qualification according to circumstances, particularly in those cases where the developer itself presents argument seeking to uphold the grant of development consent. This was not such a case. In this case NDC has been prepared to abide the orders of the court and has not, in any sense, prolonged the conduct of the hearing in relation to the issues in paras 1 to 8. Having regard to all those circumstances, I think there is no alternative but that the Council must bear the plaintiffs’ costs of these proceedings in relation to the issues in paras 1 to 8 in the summons.

5. There are steps by which a planning authority is able to minimize costs of any proceedings seeking to set aside the development consent. It may indicate to a plaintiff that it recognises that there are defects in the manner in which it has handled an application and might even be able to assist a court in framing appropriate orders with, of course, proper notice to the person who has the benefit of the development consent.

6. I turn to the question whether the plaintiffs are entitled to their costs in relation to the orders sought in paras 14 and 15 of the summons. I acknowledge that the orders sought are wider than the relief which was ultimately granted. However, it was within the power of the Council to express to the plaintiffs a view which would have enabled the matter to have proceeded without undue costs. Steps which the Council could have taken were canvassed in argument and need not now be repeated.

7. There is also the question whether the NDC should not also bear a portion of these costs. Essentially, the plaintiffs had to incur these costs because NDC had lodged the second application for development consent, albeit at the request of the Council, for the purpose of repairing whatever defects had occurred in relation to the first development consent. The initial summons did not contain the relief sought in paras 14 and 15. On 2 February 2001 the plaintiffs issued and served an application for orders restraining the first defendant from hearing representations in respect of the development application. The application was served upon both the Council and NDC. Both the Council and NDC opposed the application. In my view, the Council and NDC should bear equally the costs of that application. It was plainly within the capacity of both to reach accommodation with the plaintiffs’ solicitors.

8. Unfortunately, there is an attitude among some solicitors today which seems to suggest that they believe it to be necessary in their client’s interest to adopt a confrontational attitude in respect of litigation, whatever the issues might be. This was a case where it was manifest that such attitude was not appropriate. Quite often, it is necessary to recognise the weaknesses as well as the strengths of the client’s position and to seek a resolution which protects the interest of the client and the other party. This was a case where both the Council and NDC could have given certain assurances to the plaintiff which would have made it unnecessary to proceed with their application. The attitude conveyed by both defendants left the plaintiff no course other than to proceed with their application. In my view there was sufficient urgency to justify the plaintiffs proceeding as they did.

9. The plaintiffs were seeking what, in effect, was a quia timet injunction. They did not know when they could get a hearing in this Court. The NDC was intending to proceed with its development application. The handling of that application and any decision in respect of that application were matters that were entirely outside the plaintiffs’ control. In all respects, it was reasonable for the plaintiffs to proceed as they did.

10. In all the circumstances, the costs in relation to paras 14 and 15 of the summons should be borne equally between the two defendants.

11. For all of these reasons, there will be orders as follows:

12. Order in the nature of a declaration that the development the subject of the application to the Corporation of the City of Tea Tree Gully by Network Design and Construction Pty Ltd dated 7 July 2000 and numbered 75044/2000 for a telecommunication station and associated microwaves/antenna and base station, was an application for a Category 3 development within the meaning of s 38 of the Development Act 1993.

13. Order in the nature of a declaration that the said development is not of a minor nature.

14. Order in the nature of a declaration that the provisional development plan consent dated 13 September 2000 and the development approval dated 3 October 2000 granted by the Council in respect of the development application are void and of no force or effect.

15. Leave to the plaintiffs to discontinue this action in relation to paragraphs 4 to 8 inclusive of the summons.

16. Order discharging the injunction ordered on 5 February 2001.

17. The first defendant shall pay the plaintiffs’ costs of and incidental to the issues in paragraphs 1 to 8 of the summons.

18. The first and second defendants shall pay, in equal shares, the plaintiffs’ costs of and incidental to paragraphs 14 and 15 of the summons.

19. The second defendant shall bear its own costs of these proceedings.

20. The costs before the Master on 5 February 2001 shall be paid by the first and second defendants in equal shares.