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

Case [2010] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

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

[2010] SASC 93

Judgment of The Full Court

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)

9 April 2010

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

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - POWERS WITH RESPECT TO PLANNING SCHEMES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

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

Appeal by Cheltenham Park Residents Association Incorporated against decision of Judge of Supreme Court dismissing claim of Residents Association for judicial review of decision of Minister to approve an amendment to a Development Plan - Residents Association asserted that in approving the amendment to the Development Plan, the Minister failed to consider whole of catchment stormwater management and flood plain mapping - alternatively, Residents Association contended that if Minister required to consider stormwater management and flood plain mapping, Minister's advisors ought to have brought particular details of that material to Minister's attention - alternatively, Residents Association contended that if Minister did have regard to that material, the decision to approve amendment to the Development Plan was manifestly unreasonable - Residents Association contended that the decision of Minister should be subject to judicial review - whether Residents Association had standing to bring proceedings - whether Minister required to take into account flood plain mapping and stormwater management in approving amendment to Development Plan - whether Minister failed to take that material into account - whether Advisory Committee failed to bring relevant material facts to Minister's attention - whether decision of Minister manifestly unreasonable.

Held: Appeal dismissed - residents Association has necessary locus standi - consideration of legislative scheme under Development Act - in approving amendment to Development Plan, Minister not required to take into account whole of catchment stormwater management and flood plain mapping - evidence established that to extent that stormwater issues and flood mitigation were raised, Minister considered these issues - Advisory Committee not required to bring facts asserted by Residents Association directly to Minister's attention - decision of Minister to approve amendment to Development Plan not manifestly unreasonable.

Development Act 1993 (SA) s 8, s 9, s 22, s 23, s 24, s 26, s 32, s 33 and s 35 ; Development (Development Plans) Amendment Act 2006 (SA) Sch 1, cl 5(6); Local Government Act 1999 (SA), referred to.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Foster v Minister for Customs and Justice (2000) 200 CLR 442; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291; Truth about Motorways v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; Re Beggs and State Planning Commission; Ex parte Helena Valley/Boya Association (Inc) (1990) 2…

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The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2010] SASC 93
Case
[2010] SASC 93
Decision Date

CaseChat Overview and Summary

The Cheltenham Park Residents Association Incorporated appealed against the decision of the Supreme Court to dismiss their claim for judicial review of the Minister for Urban Development and Planning’s approval of an amendment to a Development Plan. The Residents Association argued that the Minister failed to consider whole of catchment stormwater management and flood plain mapping when approving the amendment to the Development Plan. They further contended that even if the Minister was not required to consider this material, his advisors should have brought it to his attention. Alternatively, it was argued that if the Minister did consider this material, the decision to approve the amendment was manifestly unreasonable. The Residents Association sought an order of review, asserting that the Minister’s decision should be subject to judicial review. The Minister, the State of South Australia, and the South Australian Jockey Club Incorporated opposed the appeal, raising a challenge to the Residents Association’s entitlement to bring the proceedings.

The primary legal issues for the court to decide were whether the Residents Association had standing to bring the proceedings, whether the Minister was required to consider stormwater management and flood plain mapping in approving the amendment to the Development Plan, whether the Minister failed to consider this material, whether the Advisory Committee failed to bring relevant material facts to the Minister’s attention, and whether the Minister’s decision was manifestly unreasonable. The court found that the Residents Association did have standing to bring the proceedings. However, it concluded that the Residents Association had not established its factual case in respect to what the Minister took or did not take into account when approving the amendment to the Development Plan. Consequently, the court dismissed the appeal, agreeing with the trial judge’s conclusion that the Residents Association’s submissions had no substance.

The court’s reasoning focused on the statutory framework and the specific provisions of the Development Plan Act. It found that there was no requirement in the Act for the Minister to take flood plain mapping into account when approving an amendment to a Development Plan. The court also noted that even if such a requirement existed, the Minister would not be required to give personal and detailed consideration to the material. Instead, the court observed that the Minister must rely on advice from various sources when considering a Development Plan amendment. The court further held that the Residents Association had not demonstrated that the Minister failed to consider relevant material or that his decision was manifestly unreasonable.

No further orders were made by the court. The appeal was dismissed, and the decision of the Supreme Court was upheld. The Residents Association’s claim for judicial review was rejected, and the Minister’s approval of the amendment to the Development Plan was upheld.

Orders

Orders of the court

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Background

Background to the litigation

This appeal seeks to address the concerns of a Residents Association about stormwater management. Background The plaintiff and appellant, the Cheltenham Park Residents Association Incorporated, sought judicial review of a decision of the first defendant and first respondent, the Minister for Urban Development and Planning, to approve an amendment to a Development Plan. At the heart of the Residents Association’s case is an assertion that the land comprised of and formerly known as the Cheltenham Park Racecourse provides an opportunity to address potential stormwater management issues, including storage and re-use and the prevention of flooding. This potential is said to have State-wide, inter-Council, whole of catchment and local community benefits. The Residents Association asserted that in approving the amendment to the Development Plan for the area containing the racecourse, the Minster did not consider or did not give adequate consideration to this potential. The evidence established that the “Tonkin Report” of 2003 addressed stormwater management issues. That report anticipated that further studies would be undertaken. On 11 March 2008, a report addressed to the City of Charles Sturt containing flood plain mapping was released. The Council referred the report to the Minister. The Residents Association’s contention is that the Minister, in approving the amendment to the Development Plan, did not consider stormwater management, and in particular, the flood plain mapping report released in March 2008. It was said that the Minister was obliged to consider this material and did not do so. Alternatively, it was contended that even if the Minister was not obliged to consider stormwater management and flood plain mapping, his advisors should have drawn that material to his attention. It was said that they did not do so. In the further alternative, it was argued that if the Minister did have regard to stormwater management and flood plain mapping, the decision to approve the amendment to the Development Plan was, in the circumstances, manifestly unreasonable. The consequence of these contentions, it was submitted, was that the Minister’s decision should be the subject of an order of review. The Residents Association does not seek to enforce any private right. It is not alleged that there has been any denial of a personal statutory right. The Residents Association seeks to enforce a public right, or alternatively, the performance, according to law, of a public duty. The Minister, and the second and third defendants and respondents, the State of South Australia and the South Australian Jockey Club Incorporated, in opposing the appeal, raised a challenge to the entitlement of the Residents Association to bring the proceedings. I have reached the conclusion that the Association does have the necessary locus standi and does have an entitlement to bring the proceedings and to prosecute this appeal. It is convenient to set out my reasons for this conclusion later.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, there is no substance to the Residents Association’s submissions. I consider that the trial Judge was correct in reaching his conclusions on this issue. Conclusion I would dismiss this appeal. VANSTONE J: I have the advantage of having read the reasons of Gray J in draft. As to the matter of standing, I would prefer to leave for another day any perceived inconsistency between Xenophon v State of South Australia & Ors (2000) 78 SASR 251 and Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 and to proceed on the basis that the Residents Association has demonstrated a grievance, the nature of which gives rise to an entitlement to bring the application and, if well founded, to secure relief. However, as Gray J has set out, the appellant has not made good its grounds of appeal. I consider that the learned judge was correct in dismissing the application for judicial review. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

In the circumstances of the present proceeding, for reasons that follow, the Residents Association has failed to establish its factual case in respect to what the Minister took or did not take into account when approving the amendment to the Development Plan. As a consequence, an examination of the validity or precise operation of section 22(10) is unnecessary in the circumstances. However, it is to be observed that insofar as section 22(10) purports to preclude review of decisions involving jurisdictional error, the decision of Kirk makes clear that this provision would be beyond State legislative power. Mandatory Considerations The Residents Association first submitted that the trial Judge erred in holding that the issue of whole of catchment stormwater management and, in particular, flood plain mapping was not a mandatory relevant consideration in respect of a decision to approve an amendment to a Development Plan. The Judge reasoned:[34][34] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [49]-[53] (Bleby J).If the plaintiff is to succeed, it must establish that not only did the Minister not take into account the particular flood plain mapping relied on by the plaintiff, but that the Minister was also required by the Act to take it into account. This second question depends upon the proper construction of the Act. …In this case the primary question for consideration by the Minister was the rezoning of the racecourse site from one land use to quite different land uses. The DPA required input based on a variety of technical, planning and policy considerations. There is nothing in the Act which requires that, in developing a Development Plan Amendment, the Minister must take into account infrastructure requirements for stormwater flood control across the whole stormwater catchment of which the land in question forms part and, as the plaintiff acknowledged, which is not affected by flooding in the event of a 1 in 100 year flood event.Section 26(2) of the Act required that a Plan Amendment Report must assess the extent to which the proposed amendment meets stated criteria. One of those criteria is the extent to which the proposed amendment accords with the Planning Strategy. The Planning Strategy is the strategy referred to in s 22 of the Act. It is a planning strategy for development within the State. It is necessarily in general terms. I was not referred to the detail of the Planning Strategy. It was not suggested that any policy or strategy contained in it required a development or development plan to incorporate systems for the collection, storage and disposal of off-site stormwater or to provide for flood reduction measures of the whole catchment in which the development is located. But even if the DPA were contrary to some provision of the Planning Strategy it could not assist the plaintiff. Section 22(10) of the Act relevantly provides:(10) No action can be brought on the basis— (a)that a Development Plan, or an amendment to a Development Plan, approved under this Act is inconsistent with the Planning Strategy; …No argument was addressed to suggest that the Minister had failed to assess the extent to which the proposed amendment accords with other parts of the relevant Development Plan, or the extent to which it complements the policies in development plans for adjoining areas or the extent to which it satisfies the requirements prescribed in the Regulations, being the matters which, under s 26(2), the DPA was required to assess. The plaintiff’s first difficulty is, therefore, that there is nothing in the Act which points to a requirement that the Minister take the flood plain mapping into account.However, the structure of the Act suggests that, even if he is required to take it into account, it is not a matter to which the Minister must give personal and detailed consideration. Because the consideration of a Development Plan amendment of this nature requires such a variety of technical, planning and policy considerations, the Minister, of necessity, must rely on advice from a number of quarters, both initially in formulating the Plan Amendment Report and as the consultation process proceeds.