Smith v Mt Barker Products Pty Ltd

SMITH v MT BARKER PRODUCTS PTY LTD AND
DISTRICT COUNCIL OF MT BARKER
[2000] SASC 164

Full Court: Doyle CJ, Duggan and Lander JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons given by Duggan J for so deciding. There is nothing that I wish to add to those reasons.
DUGGAN J.This is an appeal against an order of a judge of the Environment Resources and Development Court (the ERD court) refusing leave to serve a summons to commence proceedings in that court. The appellant sought leave to serve the summons on the respondents to this appeal, Mt Barker Products Pty Ltd (the company) and the District Council of Mt Barker (the council).
On 14 June 1996 the company was granted approval for a proposed development which included a non-ferrous foundry on land situated at Mt Barker. The land is within an industrial/commercial zone and the appellant resides within a nearby residential zone.
In an affidavit filed in the ERD court the appellant stated that, commencing in about May 1999, there were emissions of fumes from chimneys on the company’s premises. He stated that the fumes had a deleterious effect on his health and the health of his family. One of the responses of the appellant to this situation was to apply for leave to serve the summons to which I have referred. The application is dated 28 September 1999 and the proposed summons seeks the following orders:
“1.... A declaration that the first respondent in making application for development approval by Development Application 580/286/96 (‘the development application’) for the development of a non ferrous foundry at 19-23 Oborn Road aforesaid (‘the said premises’) incorrectly represented that the proposed development constituted light industry.
2.A declaration that the second respondent incorrectly dealt with the development application as an application for the development of a light industry.
3.... A declaration that the development application was an application for a non complying or, alternatively, a consent use within the terms of the Development Act 1993, the Development Regulations and the Development Plan and should have been dealt with by the second respondent accordingly.
4.A declaration that the second respondent should have given public notice of the development application pursuant to the Development 1993 Act and Development Regulations.
5.... A declaration that the development approval is invalid.
6.An order restraining the first respondent from using, causing, suffering or permitting the operation of a foundry at the said premises.”
The application to serve the summons came on for hearing in the ERD court and on 13 January 2000 the learned judge delivered his reasons for refusing to grant leave to serve it. His Honour stated that, although such applications may be heard ex parte, he gave leave for counsel for both the company and council to make submissions in opposition to the application.
The application by the appellant was brought under s 85 of the Development Act 1993 (the Development Act) which, insofar as it is relevant to the present case, provides as follows:
“Applications to the Court
(1)... Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).
(2)Proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained).
(3)... If proceedings under this section are brought by a person other than a relevant authority, the applicant must serve a copy of the application on the relevant authority within three days after filing the application with the Court.
(4)An application may be made ex parte and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.
(5)... An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.
(6)If -
......... (a)    after hearing -
(i)the applicant and the respondent; and
(ii)... any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,
.................. the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or a repealed Act; or
(b)the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise any of the following powers:
(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d)require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;
(e)cancel or vary any development authorisation (other than an authorisation granted by the Governor);
(f)require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;
(g)if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages -
(i).... if the applicant is a council and the Crown has not become a party to the proceedings - to the council;
........ (ii)    in any other case - into the General Revenue of the State.
(7)In assessing damages under subsection (6)(g), the Court must have regard to -
(a)    any detriment to the public interest resulting from the breach; and
(b)    any financial or other benefit that the respondent sought to gain by committing the breach; and
(c)    any other matter it considers relevant.
(8)The power conferred under subsection (6)(g) can only be exercised by a Judge of the Court.
(9)A relevant authority, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear, before a final order is made, and be heard in proceedings based on the application.
. . . .
(12)Where the Court makes an order under subsection (6)(d) and the respondent fails to comply with the order within the period specified by the Court, a relevant authority may cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.
(13)Where an amount is recoverable from a person by a relevant authority under subsection (12) -
(a)    the relevant authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and
(b)    the amount together with any interest charge so payable is until paid a charge in favour of the relevant authority on any land owned by the person.
(14)The Court may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a development authorisation that should have been but was not made, or to remedy any other default.
. . . .
(18)Proceedings under this section may be commenced at any time within three years after the date of the alleged breach or, with the authorisation of the Attorney-General, at any later time.
. . . . ”.
The specific nature of the breach relied upon by the appellant for the relief sought pursuant to s 85 was not identified in the application, the summons or the supporting affidavit. However, after some initial confusion at the commencement of the proceedings in the ERD court as to the nature of the appellant’s case, it emerged that the appellant was relying on an alleged breach by the council in failing to comply with the provisions of the Development Act when considering the company’s application for provisional development consent by treating it as an application for consent to development characterised as light industry. This had resulted in the appellant being deprived of the opportunity to make representations in relation to the proposal and, depending upon the proper categorisation of the application, it could also have resulted in the appellant being deprived of a right to appeal to the ERD court against an adverse decision. It followed, so it was said, that the development approval was invalid and that it was open to the appellant to apply for an order that the company be restrained from continuing to operate the foundry.
At the commencement of the hearing before the ERD court it was argued on behalf of the council that the proceedings were out of time. The question of the jurisdiction of the ERD court to entertain proceedings based on a challenge to the validity of the planning consent was raised briefly. The arguments relevant to this issue are discussed later in these reasons. However, all parties were content that the learned judge should follow his earlier decision in Frazzetto v Ahrens Engineering Pty Ltd & District Council of Kapunda & Light [1998] EDLR 10 with the result that jurisdiction to entertain the application was assumed. There was very little discussion as to whether a case to answer had been established. The principal focus of the argument was centred upon the time issue and whether, if the application was out of time, it should be extended.
The learned judge referred to s 85(18) and held that the proposed proceedings would commence more than three years after the date of the alleged breach by the council. He noted that the Attorney-General had refused authorisation to proceed. He held, however, that an extension of time for the commencement of the proceedings could be granted pursuant to s 48 of the Limitations of Actions Act 1936. His Honour then considered whether it was in the interests of justice to extend the time. In the result he held that an extension of time should not be granted and he therefore refused leave to serve the summons. In the view that I take of the matter it is unnecessary to consider the appropriateness of the refusal to grant an extension of time.
As I have pointed out, the case which the appellant advanced before the ERD court in support of his application for leave to issue the summons was based on the assertion that the council had failed to deal with the application for approval in the manner prescribed by the Act and that that approval was invalid as a result. Although seeking a declaration that the company incorrectly represented that the proposed development constituted a light industry, the gravamen of the appellant’s complaint was that the council incorrectly dealt with the development application as an application for consent to development characterised as light industry; that the application was for a non-complying or consent use and should have been dealt with by the council accordingly; that the council should have given public notice of the development application pursuant to the Act; and that the grant of the development approval was invalid by reason of the failure of the council to characterise the development correctly and deal with it in accordance with that characterisation. Despite the fact that these matters were put forward as “breaches” of the Act by the council, the injunctive relief sought is against the company in that the summons seeks an order restraining the company from operating the foundry.
The first question for consideration is whether the ERD court has jurisdiction to make the orders sought in the proposed summons on the basis of the appellant’s case as it was put to the learned judge. In this respect it is necessary to decide whether the council, as the relevant authority under the Act, could be proceeded against under s 85 for a breach of the Act. If such an action can be brought against the council, further questions arise as to whether the ERD court is empowered to enquire into the validity of the planning approval as part of the investigation into whether a breach of the Act took place and whether the court can made declarations consequent upon a finding of invalidity.
The Act establishes objectives and principles of planning and development and a structure for putting those objectives and principles into effect. As part of this structure “relevant authorities” such as local councils are authorised to consider and, if considered appropriate, approve applications for proposed development.
Civil enforcement provisions have been enacted in Part 11 Division 1 of the Act. Section 83 relevantly defines a “breach” of the Act as “a contravention or threatened contravention, of this Act”. Section 84 authorises a relevant authority to issue directions in order to remedy breaches of the Act or to take urgent action as a result of such breaches. Section 85 enlarges the scope of the available remedies and provides for applications to the court to invoke those more extensive remedies. Any person may apply for an order under s 85, whereas the initiative for action pursuant to s 84 rests with the relevant authority. However if the appellant’s argument is correct the categories of breaches would be increased significantly under s 85 to encompass conduct by relevant authorities. There is nothing in the wording of the provisions to indicate that this unusual consequence was intended by the legislature.
Furthermore, it would be contrary to the scheme of the Act generally and to the enforcement procedures in particular, to conclude that the authorities charged with the administration and enforcement of the Act could themselves be respondents to an enforcement application. Civil enforcement proceedings under s 36 of the repealed Planning Act 1982 had to be initiated by the Commission or a council. The section provided for an application to the District Court for an enforcement order. The intention of the present Act was to enlarge the remedies available and, in the case of s 85, to enable any person to make an application to the court. It would be a curious extension of the enforcement provisions to include, as potential respondents, authorities who are in a sense custodians of the Act and to render them liable to enforcement procedures or, as would seem to be the result of a successful application in the present case, to render the party to whom development approval was given liable to an enforcement order.
I am also of the view that, whereas ss 84 and 85 have obvious application to situations where as unapproved development is undertaken (s 32) or where development is undertaken contrary to a development authorisation (s 44), it is inappropriate to regard a failure to observe procedural requirements as a breach of the Act, let alone a breach which might be remedied by the civil enforcement procedures.
In my view an order cannot be made under s 85 by reason of a procedural breach of the Act by the council in the course of considering an application for consent and leave to issue the summons should have been refused on this ground alone.
At the hearing of the appeal Mr Besanko QC, for the appellant, conceded the difficulties in the way of relying on a breach by the council to support the application for relief. It was for this reason that he put forward two additional and alternative bases for supporting the issue of the summons. Neither was relied upon before the trial judge.
Mr Besanko placed most reliance on the first of these alternatives which is premised on the assertion that the company committed a breach of the Act when it embarked upon a development which had not been validly approved because of the failure of the council to abide by the statutory procedures.
One of the advantages to the appellant of adopting this approach is that, if successful, it would be unnecessary to apply for an extension of time because of the continuing nature of the breach. However, as Mr Besanko conceded, this avenue would be available to the appellant only if it were accepted that the ERD court had power to declare the development approval invalid. According to the argument, jurisdiction to make such an order derives from s 85 of the Act and s 28 of the Environment Resources and Development Court Act, 1993. Section 28 provides as follows:
“The Court may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.”
In support of this argument the appellant relied on the decision of the learned ERD court judge in Frazzetto’s case. In that case the appellant sought leave to serve a summons against a developer and a local council under s 85 of the Act on the basis of the council’s failure to advertise an application by the developer for development approval for the construction of an industrial workshop. The appellant sought a declaration that the approval was invalid and an injunction restraining the developer from using the workshop.
The learned judge found that the council failed to properly advertise or notify the proposal and that the appellant was deprived of the right to object to the proposal and appeal against it. It was held that if an approval had been granted following a failure to comply with the statutory public notification procedures it was granted illegally and liable to be quashed in appropriate proceedings. The court held that the appellant had a case to answer under s 85 of the Act on the assumption that the approval was invalid. The judge held that the ERD court had jurisdiction, concurrently with the Supreme Court, to cancel an approval as invalid for procedural irregularity. Leave was granted to issue the summons in that case.
In his reasons in Frazzetto’s case the learned judge accepted that the power to make a declaration under s 28 of the ERD Court Act could not be exercised independently of the jurisdiction conferred elsewhere on the court and that it was necessary to identify the subject matter of the application and determine whether jurisdiction with respect to that subject matter had been conferred elsewhere. (Keane v The City of Salisbury [1995] EDLR 308 at 310). His Honour then turned to the civil enforcement provisions of the Development Act and continued (Frazzetto at 23):
“Do the provisions of Section 85 of the Development Act confer upon this Court a jurisdiction, concurrent with that of the Supreme Court, to review the circumstances leading to the issue of a planning approval and, if appropriate, to quash that approval? Although the terms of Section 85 are not clear in this regard, I have come to the conclusion that the better view is that they do. The principal basis for this conclusion is the powers which are conferred upon the Court when exercising the jurisdiction conferred upon it by Section 85. These powers are found in subsection 85(6). Included within those powers is the power to:-
‘(e).. Cancel or vary any development authorisation (other than an authorisation granted by the Government)’.
Whilst I recognise that the terms ‘quash’ (as commonly used with respect to judicial review remedy) and ‘cancel’ may not be synonymous, they are, I think, sufficiently similar to conclude that that provisions of Section 85 confer upon this Court a jurisdiction remarkably similar to that of the Supreme Court where the review of the validity of planning approvals is concerned. Be that as it may, it is clear that this Court has the power to cancel or vary any development authorisation in the course of enforcement procedures brought pursuant to Section 85. Whilst the cancellation of a development authorisation of [sic] a consequence of such proceedings may be based upon matters not involving a review of the procedures which led to the issue of such authorisation, I see no basis for construing the provisions of subsection 85(6)(e) in such a way as to preclude the Court from cancelling a development authorisation where it is shown that the procedures leading to its issue are defective to such an extent that it should be so cancelled.
Such an approach is, I think, consistent with the object of the Development Act which, as set out in Section 3, ‘is to provide for proper, orderly and efficient planning and development in the State’. The general purpose of Section 85 is to enable the Environment, Resources and Development Court to deal with proceedings instituted, to remedy or restrain a breach of that Act. The vesting, in this Court, of jurisdiction to deal with all challenges to the validity of approvals or authorizations issued under that Act seems consistent with its object.
I have come to the conclusion that, in this case, the Court has the power to cancel the development authorisation granted to Ahrens by the District Council of Kapunda and Light if it is satisfied that the District Council, when processing the development application concerned, failed to deal with it in accordance with the requirements of the Development Act. Whether the Court will cancel the approval is, of course, a question yet to be decided.”

I respectfully disagree with this reasoning. There is an initial difficulty in applying this approach which arises from the fact that the power granted in s 85(6)(e) cannot be exercised unless there has been a breach of the Act. “Breach” is relevantly defined in s 83 as a contravention or threatened contravention of the Act. The court could not find that a breach of the type suggested by the appellant in the present case had been committed unless the approval was held to be invalid. However, the jurisdiction, if there is one, to declare the approval invalid could not arise under s 85 unless there had been a breach of the Act. Section 85(6)(e) is a power given only when a breach is proved and could not be invoked to establish the condition precedent for its use.
There are further difficulties with the argument. The power to cancel or vary a development authorisation pursuant to s 85(6)(e) is one of a number of sanctions available to deal with breaches of the Act. The words “cancel or vary” are appropriate to authorise the removal or varying of an otherwise valid authorisation. However, when considered in the context of an aid to enforcement of the Act, nothing more can be read into the use of the word “cancel” than the termination of an authority by reason of a proved breach. The court is given jurisdiction under s 85(1) to make an order “to remedy or restrain” a breach of the Act. It is not difficult to appreciate that cancelling or varying an authority might be an appropriate sanction to include in the powers of enforcement. However, the quashing of an authorisation on the grounds of invalidity does not sit well with the description of the jurisdiction in s 85(1). An inquiry into the validity of an authorisation would seem to have no place in enforcement provisions of this nature and, if it had been intended to confer the important power to pronounce on validity as part of the enforcement procedures, it is unlikely that the matter would have been left to inference. The power to pronounce on the validity of an authorisation under the Act and to grant declaratory relief in consequence of such a pronouncement is far reaching and not to be lightly inferred. (cf. The Queen v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582 at 603).
Section 28 of the Environmental Resources and Development Court Act confers a power not jurisdiction. It provides for a remedy to be exercised in matters within the court’s jurisdiction. The jurisdiction is to be found elsewhere. (cf Philip Morris Incorporated v Adam P. Brown Mail Fashions Pty Ltd (1981) 148 CLR 457 at 490). The following observations on s 28 by King CJ in Keane v Salisbury City (1995) 87 LGERA 203 at 204 are relevant:
“This section does not create an independent jurisdiction in the Court. It confers on the Court a power to grant an additional remedy as to matters in respect of which it already has jurisdiction. In this respect it is similar to s 21 of the Federal Court of Australia Act 1976 (Cth) and different from s 163A of the Trade Practices Act 1974 (Cth); Re Tooth & Co Ltd (1978) 31 FLR 314, per Bowen CJ and Franki J, at 321.
. . . .
In order to determine whether the power to grant the declaration sought exists, it is necessary to identify the subject matter of the desired declaration and to determine whether that subject has been conferred on the Environment Resources Development Court.”
The subject matter of the desired declaration in the present case in relation to the alleged breach by the company is whether that breach did take place. The jurisdiction relevant to such an inquiry is to be found in s 85. It is essential to this part of the appellant’s case that an issue as to the validity of the authorisation by the council can arise under the section. For the reasons which I have given, I am of the view that no such question can arise. Section 85(6)(e) is a power to remedy or restrain a breach; it is not intended to provide the basis for the breach itself. In my view the ERD court has no power to make the declarations which are sought in the summons.
The further alternative which was faintly relied upon by Mr Besanko was that the company acted outside the terms of the planning approval and that this alleged breach could be remedied by invoking the court’s jurisdiction under s 85. Whatever the merits of this claim might be, they were not argued before the learned judge. As I have explained, the case presented to the ERD court was fundamentally different from that which is put forward in this alternative. There would be nothing to prevent a further application to the ERD court along the lines of this alternative, but it would be inappropriate for this court to consider whether a case to answer could be made out on this basis.
It is unnecessary to deal with the arguments put in support of the proposition that the authorisation was invalid. It is my view that leave to issue the summons should have been refused for the reasons I have given.
I would dismiss the appeal.
LANDER J. I agree with the reasons given by Duggan J. The application to the Court below should have been dismissed for the reasons he has given. The appeal should be dismissed.

[2000] SASC 164

29 June 2000