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

Sidney Harrison Pty Ltd and another sued the Corporation of the City of Tea Tree Gully and another in the South Australian Supreme Court. The plaintiffs sought a number of orders in the nature of declarations regarding a development approval granted to the defendants by the Council. The orders sought in paragraphs 1 to 3 of the summons concerned whether the development approval granted by the Council to the defendant, Network Design and Construction Pty Ltd, was invalid. The plaintiffs sought to establish that the telecommunications tower was a Category 3 development and that the Council had not observed the procedures prescribed by the Development Act 1993 and Development Regulations 1993 before granting development approval. The determination of these issues required consideration of the classification of developments into Categories 1, 2, and 3 and whether the Council had properly considered the relevant factors in classifying the development.

The court found that the telecommunications tower was not a Category 1 development as it was more than 30 metres high and located in a Special Use Zone. The court held that the Council had erred in classifying the development as Category 1 and that the error had the consequence that the Council had failed to comply with the Development Act. The court found that the development was of a minor nature only and unlikely to be the subject of reasonable objection was unreasonable. The court declared that the development was a Category 3 development and that the grant of development approval was invalid. The court also ordered that the Council pay the plaintiffs' costs of and incidental to the issues in paragraphs 1 to 8 of the summons, and that the Council and NDC bear equally the costs of and incidental to paragraphs 14 and 15 of the summons.

The court commended the parties for their assistance in enabling the prompt resolution of the issues and for their ability to identify the relevant issues and to identify those which can and cannot be argued. The court noted that the Council and NDC could have taken steps to minimize the costs of the proceedings, such as indicating to the plaintiffs that they recognised that there were defects in the manner in which they had handled the development application and might even be able to assist a court in framing appropriate orders with proper notice to the person who had the benefit of the development consent. The court held that the plaintiffs were entitled to their costs in relation to the orders sought in paragraphs 14 and 15 of the summons, as 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. The court also held that the NDC should bear a portion of these costs, as 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.