Tavitian v District Council of Mallala - [2007] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
TAVITIAN v DISTRICT COUNCIL OF MALLALA
[2007] SADC 142
Judgment of His Honour Judge Rice
21 December 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION
Minor Civil Review - the respondent Council had taken action against the present applicant to recover costs arising from a decision in the Environment, Resources and Development Court - Council succeeded - the counterclaim by the applicant seeking damages for negligent advice in his dealing with the Council was dismissed - the review seeks to overturn that dismissal.
Held: order of the Court confirmed - appeal dismissed with costs.
Magistrates Court Act 1991 s 38; Development Act 1993 Principle 14, Rural Living Policy Area, referred to.
L Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta (1981) 150 CLR 225, considered.

TAVITIAN v DISTRICT COUNCIL OF MALLALA
[2007] SADC 142
Introduction

This is an application pursuant to s 38 of the Magistrates Court Act1991 by David Tavitian (“the applicant”) to review a decision of Mr T.F. Forrest SM on 17 May, 2006, in respect of a minor civil matter between the applicant and District Council of Mallala (“the respondent”). The matter before the learned Magistrate related to recovery of costs in the sum of $600 awarded to the respondent in a matter before Commissioner Green in the Environment, Resources and Development Court. The respondent appeared as plaintiff before the Magistrate. There was a counterclaim from the applicant in respect of monies expended upon negligent advice he claimed to have received from the respondent.
These proceedings have their origin in the rejection by the respondent of a development application tendered by the applicant in respect of property which he owns with his brother.
Applicable laws and guidelines
The relevant principles against which the applicant’s development application was to be assessed appear in the Development Plan for the District Council of Mallala. Throughout proceedings, the applicant referred to principles and objectives of the Development Act 1993. While there is an obvious connection between Development Plans and the Development Act, it is equally obvious that the applicant was under an erroneous impression as to the source of the principles, objectives and guidelines upon which he sought to rely.
Perhaps of most significance to the present matter is Principle 14 of the section of the Development Plan relating to the Rural Living Policy Area. Principle 14 provides:
Allotments should have a minimum area of one hectare (10 000 square metres), and a minimum frontage to a public road of 50 metres. (Emphasis added.)
Objective 1 of the Development Plan, which applies across the entire Council area, provides that:
Objective 1: Orderly and economic development.
New housing and other urban development should be continuous with and form compact extensions of existing built-up areas. Orderly development will achieve economy in the provision of public utilities, be conducive to the creation of a safe, convenient and pleasant environment in which to live, and contribute to the retention of rural land for the purposes of primary production, recreation, and water and nature conservation, thereby preserving the beauty of the countryside.
The High Court of Australia held in its decision in L Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta[1] that a council may be liable in tort for erroneous information to a member of the public.
[1] (1981) 150 CLR 225
Put simply, the applicant claims that the respondent, by its agent, failed to inform him of Principle 14, and that this failure constituted the tort of negligent misrepresentation. The applicant seeks damages from the respondent.
Facts
The applicant and his brother are owners of property in the District Council of Mallala area. More specifically, the property lies in what is known as the Rural Living Policy Area. At some time in 2003, the applicant and his brother determined to subdivide their land. Council approval was required before this could be done. The applicant and his brother were at least partially inspired by the successful subdivision by a neighbour of his land in 2001. The applicant and his brother regarded a subdivision along the same lines as the most, indeed the only, economically viable way to effect subdivision. A significant feature of the proposed development was the use of “battleaxe” or “hammerhead” lots, that is, rectangular lots connected to a public road by a long narrow access strip. The use of such lots obviated the need for construction of a costly access road. Those lots in the “battleaxe” style had frontages to the public road of eight metres.
Evidence was led that, at some time in 2003, a conversation occurred between the applicant, his brother and Mr Sarma, an employee of the respondent. I have no hesitation accepting that, at all times, Mr Sarma acted as agent for the respondent. The content of this conversation was not the subject of any relevant dispute, either in this Court or before the Magistrate. There is significant dispute as to the interpretation to be given to matters raised, of which more shall be said later. What is clear is that the applicant sought reassurance that his development would meet with approval, notwithstanding the fact that the proposed eight metre frontages were not in compliance with Principle 14. Indeed, it appeared from the evidence given by both Mr Mueller and the applicant that the issue of eight metre frontages was the central focus of the conversation.
During this conversation, Mr Sarma made a statement to the applicant that it was “possible” his proposed development would be approved by the respondent. The applicant was advised to have a more detailed plan prepared, and he engaged surveyors to prepare such a plan. This plan was submitted to the Development Assessment Panel. Mr Sarma recommended that the Panel accept the plan. At this time the Panel wrote to the applicant’s brother and informed him that certain aspects of the proposed development should be revised. The applicant and his brother declined to revise their plans, as recommended by the Panel. The application was rejected. In his counterclaim before the Magistrate, and in this Court, the applicant sought to recover the costs incurred in having the development plans prepared by surveyors. The counterclaim was for a sum of around $2,200.
Proceedings in this Court
I heard argument from the applicant and respondent, and received further written submissions from both parties. All submissions have been taken into consideration in preparing these reasons.
When pressed, the applicant identified four matters on which it is alleged Mr Sarma erred in the advice he provided to the applicant and his brother. Firstly, the applicant argued that Mr Sarma negligently failed to inform him that Principle 14 prohibited developments in the Rural Living Policy Area that had frontages of less than 50 metres. Secondly, that Mr Sarma failed to inform him that any development with frontage onto Greens Rd would not be acceptable to the Panel. Thirdly, that Mr Sarma failed to inform him that the only form of development acceptable to the Panel would involve a cul de sac arrangement. Fourthly, that Mr Sarma failed to inform him that the proposed development was contrary to Objective 1.
I can deal with the last three matters very briefly. Each of them concerns a decision made by the Panel following review of the applicant’s development proposal, as prepared by a surveyor. Mr Sarma did not have this information before him when he spoke to the applicant and his brother. As such, and contra any argument advanced by the applicant, Mr Sarma was not in any position to give the type of detailed advice the applicant insists he should have received. This is particularly so for the second and third alleged omission.
As to the applicant’s contention with regard to Objective 1, Mr Mueller made clear that this is an “all things considered” type condition. Whether a development falls within the wording of Objective 1 can only be determined once it has been assessed against the more specific requirements and recommendations of the Development Plan and any other applicable guidelines or legislation. It may well be that, where a proposed development is marginal in nature, this objective could sway a decision one way or the other, but only once a detailed assessment of the development has been carried out.
It may well have been preferable for Mr Sarma to have informed the applicant that the Development Plan recommended 50 metre frontages on all properties, but this does not mean that his failure to do so amounted to an actionable negligence. That Principle 14 is non-mandatory is obvious on the face of the Development Plan. It is expressed in the language of recommendation, rather than that of injunction; it is suggestive rather than directive.
Further, the evidence given of the manner in which the applicant’s neighbours had subdivided their land demonstrates that non-compliance with Principle 14 will not automatically result in a development application being rejected. It is clear from the matters considered by Commissioner Green that the applicant’s development application was rejected for broader reasons than non-compliance with Principle 14.
Conclusion
I find in favour of the respondent, and confirm the order of the Magistrate. No error of principle has been demonstrated in the Magistrate’s application of the law. Indeed, the Magistrate noted in his reasons that the applicant had identified the relevant legal principles articulated by the High Court in L Shaddock & Associates Proprietary Limited & Another v The Council of the City of Parramatta (No 1) (supra). As stated by the Magistrate, the applicant has failed to demonstrate how these principles apply to his own case in such a way as to entitle him to an award of damages against the respondent. No reasonable person in the applicant’s position would have formed the view contended for by the applicant. I agree with the Magistrate that it is simply unbelievable for the applicant to assert that his meeting with Mr Sarma left him with the belief that his development would be approved.
For the purpose of this appeal, I do not need to consider the approach taken by either Commissioner Green or the Magistrate insofar as principles and objectives of the Development Plan are concerned. Suffice it to say that I endorse the sentiments of the Magistrate in relation to the interpretation of guidelines contained in Development Plans, particularly at [29] and [30].
The appeal is dismissed. On the question of costs, I order the applicant to pay the costs of the respondent fixed at $500.