The Cheltenham Park Residents Assocation Inc v Minister for Urban Development and Planning

Case [2009] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division: Application for Judicial Review)

THE CHELTENHAM PARK RESIDENTS ASSOCATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS

[2009] SASC 303

Judgment of The Honourable Justice Bleby

25 September 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - SOUTH AUSTRALIA

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

Application for judicial review of decision by first defendant to approve amendment to Development Plan – amendment involved rezoning land previously used as racecourse to allow residential development – whether first defendant failed to take a relevant consideration, namely flood plain mapping for the catchment area, into account – whether decision so unreasonable that no reasonable decision maker could have so exercised the power – whether first defendant failed to take a relevant consideration, namely an open space proclamation, into account.

Application for judicial review dismissed – first defendant not required to take flood plain mapping into account – plaintiff did not establish that first defendant failed to take flood plain mapping into account – decision not manifestly unreasonable – open space proclamation not a matter that first defendant was required to take into account.

Development Act 1993 (SA) s 8, s 9, s 22, s 26, s 27; Town Planning Act 1929-1957 (SA); Local Government Act 1999 (SA) s 191, Sch 1A; Local Government (Stormwater Management) Amendment Act 2007 (SA); Local Government (General) Regulations 1999 (SA) reg 15(c), referred to.
Foster v Minister for Customs and Justice (2000) 200 CLR 442; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied.
Jones v Dunkel (1959) 101 CLR 298, distinguished.
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1, discussed.
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, considered.

THE CHELTENHAM PARK RESIDENTS ASSOCATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2009] SASC 303

Land and Valuation Division

BLEBY J.

Introduction

  1. On 14 August 2008 the Minister for Urban Development and Planning made a decision pursuant to s 26(8) of the Development Act1993 (SA) (“the Act”) to approve a Development Plan Amendment entitled “Cheltenham Park Racecourse Development Plan Amendment” (“the DPA”).

  2. The DPA made amendments to the Charles Sturt (City) Development Plan in relation to the land then occupied by the Cheltenham Park Racecourse owned by the third defendant, the South Australian Jockey Club Inc (“the SAJC”). The racecourse land is an area of approximately 49 hectares known as Cheltenham Park, located approximately 9-10 kilometres northwest of the central business district of Adelaide. The impetus for the DPA arose from a desire of the SAJC to sell the racecourse land. At that time it was designated under the Development Plan as “a Special Uses Zone, reflecting its historical use as…

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The Cheltenham Park Residents Assocation Inc v Minister for Urban Development and Planning [2009] SASC 303
Case
[2009] SASC 303
Decision Date

CaseChat Overview and Summary

The case of The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning involved a judicial review application brought by the residents' association against the Minister for Urban Development and Planning. The residents' association challenged the Minister's decision to approve an amendment to the Development Plan, which rezoned land previously used as a racecourse to allow residential development. The association argued that the Minister failed to take relevant considerations into account, including flood plain mapping for the catchment area and an open space proclamation. The case was heard in the South Australian Supreme Court.

The legal issues before the court included whether the Minister was required to take the flood plain mapping into account, whether the decision was so unreasonable that no reasonable decision-maker could have made it, and whether the Minister failed to take the open space proclamation into account. The court considered whether the Minister had complied with the statutory process required by section 26 of the Development Act 1993 (SA) and whether the decision was manifestly unreasonable.

The court held that the Minister was not required to take the flood plain mapping into account as the decision concerned a rezoning of the site and not wider infrastructure requirements. The court found that the residents' association did not establish that the Minister failed to take the flood plain mapping into account and that the decision was not manifestly unreasonable. The court also held that the open space proclamation was not a matter that the Minister was required to take into account. The court concluded that the Minister had followed due process in approving the Development Plan Amendment, and the decision was not subject to judicial review.

The court dismissed the application for judicial review, and no further orders were made. The decision of the court emphasised the importance of following due process in administrative decision-making and the limited role of the court in reviewing the merits of administrative decisions.

Orders

Orders of the court

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Background

Background to the litigation

It must also be borne in mind that the procedure prescribed by s 26 applies to a relatively minor amendment to a Development Plan as well as to an amendment of great significance attracting widespread public interest. This amendment was in the latter category, involving a complete rezoning of 49 hectares of urban land. It was bound to attract widespread public interest and a great number of submissions covering many aspects of town planning. It would be impracticable, in such a situation, for the Minister to give personal attention to every submission that was made. In an amendment of this significance the Minister would require substantial collation, refinement and summarisation of a large volume of material.The relevant facts There is no complaint in this case that the Minister failed to comply with s 26(1), (2), (4) or (7). In other words, there is no attack on the process adopted by the Minister. The Minister’s Plan Amendment Report, which I have referred to as the DPA, was published for public consultation on 25 October 2007. It was concerned with the rezoning of the whole of the area occupied by the Cheltenham Park Racecourse. It was not concerned, as such, with wider infrastructure requirements to meet a future risk of flooding across the entire Torrens Road catchment. It proposed a rezoning of the site to enable it to be used for a variety of purposes, namely for housing at various densities and ancillary community facilities, for open space accessible to the public for various recreation purposes and for some stormwater detention/water recycling purposes. In relation to stormwater and flooding the DPA contained the following: The context for considering stormwater management over the Cheltenham Park Racecourse is contained in the Tonkin report (March 2003) entitled “Torrens Road Drain Catchment”.In broad terms the stormwater management system in the area is adequate utilising underground drains and road reserves to accommodate stormwater flows. This is consistent with normal practice nationally and internationally.Water Sensitive Urban Design principles will be utilised throughout the site (see planning Strategy policy – Water Resources 2).The two fundamental principles for stormwater management on the site are:·outflows from the developed site not to exceed the current outflow from the undeveloped site; and·water quality standards being achieved by a variety of methods, including individual allotment collection of impurities, wetlands, aquifer storage, etc.The area of wetlands needed for water quality purposes is in the order of 4 to 6 hectares, well within the area to be set aside as public open space.Consideration has also been given to aquifer storage and recovery (ASR) for the site by URS (May 2006). In general terms, an ASR scheme is feasible if the Cheltenham Park Racecourse is rezoned for residential development, although for it to be commercially viable a purchaser of the reclaimed water needs to be identified.URS has also undertaken a study into the operation of a wetland (September 2006), which was also based on an area ranging from 4 to 6 hectares.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J
The land having served its purpose as a racecourse, the revocation of the proclamation became appropriate and necessary if, after following the required statutory process, the Minister was to approve the DPA. I reject this ground of appeal.Conclusion I have only been required in this case to review the process adopted by the Minister in approving the DPA. It is not the function of the Court to descend into or to pronounce upon the planning merits of the Minister’s decision. A decision in favour of any use of the land will be regarded by some as a lost opportunity for another use which might be perceived as having equally compelling reasons to support it. Provided that due process has been followed, as I consider it has, the decision must remain. The position was put, with respect, very clearly by Brennan J (as he then was) in Attorney-General for the State of New South Wales v Quin:[13]The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.…If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.[13] (1990) 170 CLR 1, 35-37. Finally, I have not overlooked the argument of the defendants that the plaintiff had insufficient standing to bring the application. In view of the conclusion I have reached on the merits is not necessary to consider that question.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

The final relevant submission was that the DPA “should including flood mapping in the area, as it is a high risk area. Policy should be introduced to protect development against a 1:100 year flooding event”. The DPAC’s comment was:The City of Charles Sturt (in conjunction with the Port Adelaide Enfield Council) has prepared Floodplain Mapping for the Torrens Road catchment, which was released on 11 March 2008. That mapping indicates that most of the Cheltenham site is not significantly affected by flood – some areas around the periphery of the site are shown to be flood affected (i.e. along the rail corridor and Cheltenham Parade in particular).In this regard, the existing Development Plan includes council-wide policy to ensure land division is undertaken to mitigate the potential impact of flood. Notably, PDC 245 seeks to ensure major and minor stormwater systems cater for a 1:100 year flooding event.Consideration of the flood mapping at the catchment level would be more appropriately addressed through the preparation of an SMP, as mentioned previously.[Emphasis added] I return to the minute to the Minister dated 21 May 2008 to which the DPAC report and its attachments were attached. The minute referred not only to the DPA but also to the open space proclamation, providing a basis for the Minister to consider the revocation of that proclamation. Referring to the submissions that had been received the minute noted:Most of the public submissions are opposed to the rezoning of the site, preferring that it be retained for public purposes including recreation and stormwater management.A number of submission have, however, supported the DPA including the City of Charles Sturt and Local Member for Cheltenham, both of whom provided a detailed submission on the DPA and recommended changes to the policy framework. The minute particularly drew the Minister’s attention to the question of stormwater management:Stormwater ManagementA large number of public submissions have commented on the potential use of the Cheltenham site for stormwater management and harvesting. Although DPAC has not suggested any amendments to the DPA in response to stormwater issues, it has noted that there is a potential opportunity cost in developing the land for housing.The following matters relate to the issue.· None of the key government agencies or councils that are likely to have an interest in stormwater have raised any significant objections in relation to the way the DPA deals with stormwater or the amount of open space being provided that might accommodate stormwater management measures.· Both councils (Port Adelaide Enfield and Charles Sturt) affected by the Torrens road drainage catchment have indicated their intentions to progress a Stormwater Management Plan (SMP) for the catchment (timing unknown).· The viability or otherwise of an Aquifer Storage and Recovery (ASR) system at Cheltenham is to be investigated by the Land Management Corporation – this is expected to be addressed in the draft Commitment Deed.· The DPA is consistent with the Planning Strategy for Metropolitan Adelaide, which identifies the Cheltenham area as providing for economic and housing growth.· The use of the whole Cheltenham site or a much larger portion of it for stormwater purposes would also represent an opportunity cost.Given Adelaide’s recent experiences in relation to water shortages and comments on the DPA from several local Members of Parliament, stormwater management is a key issue.Further clarity about the potential role of the Cheltenham site for stormwater management will be provided via the SMP process and ASR investigations that can also inform the development assessment process.[Emphasis added]