Smith v Mt Barker Products Pty Ltd - [2000] SASC 164

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…

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 Smith v Mt Barker Products Pty Ltd

Details

AGLC: Smith v Mt Barker Products Pty Ltd [2000] SASC 164
Case: [2000] SASC 164
Decision Date: 29 June 2000

CaseChat Overview and Summary

In the case of Smith v Mt Barker Products Pty Ltd, the appellant sought leave to serve a summons against the respondents, Mt Barker Products Pty Ltd and the District Council of Mt Barker, in the Environment Resources and Development Court (ERD Court). The appellant alleged that the respondents had breached the Development Act 1993 (SA) by approving a development application for a non-ferrous foundry, which the appellant claimed should have been categorised as a light industry. The appellant further contended that the council failed to follow proper procedures, resulting in the approval being invalid. The primary legal issue was whether the ERD Court had jurisdiction to hear the appellant's case and grant the relief sought.

The court examined whether the ERD Court could entertain proceedings based on the alleged breach by the council in approving the development application. The court found that the civil enforcement provisions of the Development Act were not intended to allow proceedings against authorities responsible for administering and enforcing the Act. The court also held that the failure to observe procedural requirements did not constitute a breach of the Act, which could be remedied by civil enforcement procedures. The court concluded that the ERD Court did not have jurisdiction to make the declarations sought in the summons, even if the approval was found to be invalid.

The alternative argument proposed by the appellant, that the company breached the Act by undertaking a development without valid approval, was not considered by the trial judge and thus was not properly before the court. The court dismissed the appeal, holding that the ERD Court should not have granted leave to serve the summons and that the appeal should be dismissed.

Orders