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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 25 January 1999
Judgment of His Honour Judge Bowering
Respondent DEVELOPMENT ASSESSMENT COMMISSION:
Counsel: MR W RUDD - Solicitors: CROWN SOLICITOR'S OFFICE
ERD-98-1288
Judgment No. OE1
8 January 1999
R.L. HOFFRICHTER
v
DEVELOPMENT ASSESSMENT COMMISSION
[1999] SAERDC 1288 of 1998 OE1
JUDGEMENT OF HIS HONOUR JUDGE BOWERING
1 By application dated 9th March, 1993, Miss Rebecca Louise Hoffrichter applied to the Development Assessment Commission for a planning authorisation to establish a 10ha aquaculture site for the cultivation of pacific oysters in the waters of Denial Bay, at a place close to the Denial Bay township. The relevant papers indicate that the application was considered by a delegate of the Commission, namely the Aquaculture Committee. That committee appears to have taken some time to reach a decision, but eventually at its meeting on 26th August, 1998, the committee resolved to refuse the application. The notice of refusal, issued in the name of the Commission on 28th August, 1998, gave, as the reason for refusal, the following:-
"the application is considered to be hypothetical as the Minister for Primary Industries, Natural Resources and Regional Development has advised he is not prepared to issue tenure for the proposed development."
2 On 1st October, 1998, Miss Hoffrichter appealed to this Court against the Commission's refusal.
3 In the course of a preliminary hearing, Mr Rudd, counsel for the Commission, intimated that the Commission wished a preliminary issue to be determined prior to the commencement of the hearing. The issue related to the jurisdiction of the Court to hear and determine the appeal. To place the issue in context, it is necessary to refer briefly to the history of the matter.
4 If she is to undertake aquaculture on the site proposed, Miss Hoffrichter must obtain two approvals, namely a development authorisation under the Development Act and permission to occupy the site, i.e., "tenure" granted under the Harbours and Navigation Act. Such tenure is granted (under delegation) by the Minister for Primary Industries and Natural Resources. The tenure granted is generally in the form of a lease and commonly contains various conditions with which the developer must comply. A licence under Section 50 of the Fisheries Act may also be required. The application for both (or all three) consents is made on a common form. Miss Hoffrichter made such an application on 9th March, 1993.
5 When the Minister for Primary Industries and Natural Resources receives an application for tenure, he considers it in the light of the policies set out in the relevant aquaculture management plan in force with respect to the area of the proposed lease. At the time at which Miss Hoffrichter made her application, the relevant management plan was the Muriet Bay Aquaculture Management Plan 1991, which plan, amongst other things, defined an "exclusion zone" within the vicinity of the township of Denial Bay. It appears that, at the time of Miss Hoffrichter's application, the provisions of that plan did not preclude the establishment of an oyster lease on the proposed site. However, the management plan was then under review, and Miss Hoffrichter's application was placed in some sort of limbo whilst it was reviewed. In December 1995, the Minister published, for public consultation, a draft aquaculture management plan for the far west coast. Like its predecessor, it defined an exclusion zone within the vicinity of Denial Bay. However, the Denial Bay exclusion zone as depicted in the draft plan was more extensive than that depicted in the 1991 plan. If implemented, it would exclude a substantial portion of the area of the lease sought by Miss Hoffrichter. The Hoffrichter family made various representations opposing the extended Denial Bay exclusion zone, but to no avail. The plan was adopted (possibly with alterations not relevant to these proceedings) as the Far West Aquaculture Management Plan on 31st July, 1996. The terms of that plan are such that the greater part of the area the subject of Miss Hoffrichter's application falls within the Denial Bay Exclusion Zone.
6 By summons dated 21st March, 1997, five members of the Hoffrichter family (including Miss Rebecca Louise Hoffrichter) applied to the Supreme Court for judicial review. The copy documents in those proceedings have been placed before me. It appears that, at some time, the summons may have been amended. The orders presently sought by the summons are as follows:-
"1. An Order in the nature of Mandamus directing the Minister for Primary Industries to provide reasons for extending an exclusion zone for the farming of oysters at Denial Bay as set out in the final Aquaculture Management Plan dated 31st December 1996, beyond the exclusion zone set out in the Muriet Bay Aquaculture Management Plan of 1991.
2. A declaration that the Minister for Primary Industries by his delegate had decided to maintain the exclusion zone at Denial Bay for the farming of oysters in accordance with the Muriet Bay Aquaculture Management Plan of 1991 whereby giving the plaintiffs the right to have their application for the farming of oysters, considered on its merits.
3. A declaration that the purported exercise of power by the Minister for Primary Industries to adopt the Far West Aquaculture Management Plan on 31st day of July 1996 without consideration or adequate regard to the prospective rights of the plaintiffs to have their application for a lease for the farming of oysters considered on its merits is illegal and ultra vires."
7 The proceedings came before His Honour Justice Perry on 6th May, 1998. It is significant to note that, at that time, neither the Development Assessment Commission nor the Minister had made any decision on Miss Hoffrichter's application. Page fifteen of the transcript of the proceedings on that day indicate that, in view of the width of the discretion which the proceedings called upon His Honour to exercise, this was a matter which concerned him. After further consideration and submissions, His Honour stood the matter over on the understanding that "every effort will be made to ensure that the relevant authority makes a decision determining the application dated 9 March 1993": transcript page 35.
8 The matter came before His Honour once again on 21st May, 1998. Precisely what happened on that day is not before me, although it is clear that neither the development application nor the tenure application had been determined. When before His Honour on 23rd June, 1998, the situation remained unchanged. When again before His Honour on 4th August, 1998, the Minister had issued a decision to the effect that he would grant neither a tenure nor any licence pursuant to the provisions of the Fisheries Act. That decision was set out in a letter dated 3rd August, 1998. However, the Development Assessment Commission was yet to make its decision, and the matter was further adjourned to 10th September, 1998, in the expectation that a decision would be made by that date.
9 When the matter resumed before His Honour on that date, the Development Assessment Commission had made its decision refusing the development authorisation. As stated, that decision is set out in a notification dated 28th August, 1998, and forms the basis of the appeal to this Court. On 10th September, His Honour made certain orders for discovery and adjourned the matter to 23rd September, 1998. On 23rd September, His Honour referred the matter into the Masters' Chamber List, presumably for the purpose of dealing with any application to amend the summons and to give such further directions as may be necessary as a consequence of compliance with his order for discovery.
10 Such was the situation when the matter came before me for directions on 27th November, 1998. Mr Rudd submitted that this Court should decline to entertain the appeal for two reasons, namely:-
In view of the decision of the Minister to both adopt the Far West Aquaculture Management Plan and to refuse tenure to Miss Hoffrichter, the application is hypothetical.
The sole reason for the refusal issued by the Development Assessment Commission is that the development is hypothetical - thus, in the course of the decision process, the Commission did not comply with the public notice and other requirements found in Section 38 of the Development Act. In these circumstances, if this Court were to conclude that the application is not hypothetical, the proper course would be for the Court to quash the Commission's refusal and to refer the matter back to it for processing and determination according to law.
11 Mr Hayes submitted that this Court should proceed to hear and determine Miss Hoffrichter's appeal in the normal way and without regard to what may happen in the Supreme Court. He said, and I accept, that his clients are in a difficult position and that this matter has dragged on far too long. He said that the question of whether the proposed development is hypothetical is a matter of dispute between the parties, which dispute the Court should resolve in the course of hearing the appeal. That is what occurred in the Hackney Hotel case, and that is what should happen in this case.
12 In the matter of Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1983) 32 SASR 145 and (1984) 36 SASR 267 the proposed development was an hotel carpark. The council having refused planning approval, the hotel appealed to the Planning Appeal Board which dismissed the appeal. It did so for two reasons, the first being that the company did not own the land and that its application was thus futile and, secondly, that the planning merits did not justify approval. The hotel's appeal to the Supreme Court was heard by Wells J, who, having heard the appeal, adjourned it to enable the hotel to ascertain whether there was any material prospect that it would gain sufficient legal access to the land to enable the development to proceed. It transpired that there was no such prospect and Wells J dismissed the appeal. The hotel appealed to the Full Court which likewise dismissed the appeal. In the course of his judgement Zelling J reviewed the facts to which I have referred and noted that, on those facts, Wells J "came to the conclusion, quite rightly in my opinion, that the application was purely hypothetical." His Honour went on to say that:-
"..... Courts do not give answers to hypothetical questions and I refer to the speech of Lord Loreburn L.C., in Glasgow Navigation Company v Iron Ore Company and the judgement of the High Court of Australia in Luna Park Ltd v Commonwealth of Australia. It is sufficient for the purposes of the disposal of this appeal to say that even if in certain cases an applicant for planning permission may demonstrate a sufficient interest to have his application considered, although he is neither the owner of the land, nor a person with a reasonable expectation of becoming an owner, nor acting with the consent of the owner, a matter on which I express no opinion, this case is so far on the wrong side of the line that it is unnecessary for us to decide the point in the instant proceedings. That is a matter which can wait for another day. It is only necessary to say that in this case Wells J was completely correct in the decision to which he came and this appeal should be dismissed."
13 Mr Hayes has urged me to adopt the same procedure as did the Planning Appeal Board in the Hackney Hotel case, namely that this Court should proceed to hear and determine Miss Hoffrichter's appeal and, in the course of so doing, make such findings as may be appropriate on all of the relevant issues including both the question of whether the proposed development is hypothetical and whether, on its merits, it warrants planning approval. However, it seems to me that the circumstances in this matter are somewhat different from those which confronted the Planning Appeal Board when it embarked upon the Hackney Hotel appeal. In particular:-
In this matter, the jurisdiction of this Court to hear and determine Miss Hoffrichter's appeal has been raised as a preliminary issue. That does not appear to have been the situation when the Hackney Hotel appeal was before the Planning Appeal Board - the question of whether the proposed carpark was hypothetical appears to have been raised towards the end of the hearing of the appeal.
In the Hackney Hotel case, the St Peters Council refused to approve the proposed carpark on planning grounds. In this case, the alleged hypothetical nature of the proposed development is the sole ground for the Commission's refusal.
There does not appear, in the Hackney Hotel case, to have been any suggestion that the Planning Appeal Board's jurisdiction was open to challenge on other grounds. In this case it appears that the Commission's decision is open to challenge on the ground that it failed to comply with the requirements of Section 38 of the Development Act. It is now well recognised that such requirements are mandatory: See Briggs v Corporation of the City of Mount Gambier and Michielan (1982) 30 SASR 135, The Queen v Corporation of the City of Marion, ex parte Independent Grocers Co-operative Ltd (1984) 37 SASR 415 and The Queen v Corporation of the City of Salisbury, ex parte Burns Philp Trustee Co Ltd (1986) 42 SASR 557. Although the issue of the Commission's compliance with Section 38 is separate from the question of whether Miss Hoffrichter's proposed development is hypothetical, it is a matter to which I have regard when determining the appropriate course to be followed by these proceedings.
In this case, the Minister's decision to refuse tenure is based upon his earlier decision to adopt the Far West Aquaculture Management Plan, which decision is presently the subject of judicial review proceedings in the Supreme Court. Those proceedings are part heard. The manner of the resolution of the Supreme Court proceedings will directly and significantly touch the issues between the parties in the appeal now before this Court. No similar situation existed in the Hackney Hotel case.
14 I appreciate the delay which has been inflicted upon Miss Hoffrichter by the circumstances of this matter. The delay is extensive and, without doubt, has been prejudicial to both her and to other members of her family. I accept that any extension of that delay is likely to add to the prejudice already inflicted. However, I have come to the conclusion that it would not be appropriate for this Court to embark upon a hearing in the course of which it will be required to determine an issue or issues already the subject of part heard judicial review proceedings in the Supreme Court. Given that the summons in the judicial review proceedings is likely to be amended, it is difficult to say, with any precision, to what extent the judgement in the Supreme Court is likely to cover the matters to be resolved by this Court if and when it comes to hear Miss Hoffrichter's appeal. However, given that the judicial review proceedings already canvass the legality of the Minister's decision to adopt the Far West Aquaculture Management Plan and may be extended to cover the Minister's decision to refuse tenure on the basis of that plan, any decision by this Court to embark upon a hearing in which those or similar issues are likely to be raised (albeit, perhaps, in a somewhat different way) would, in my view, be verging upon the presumptuous. In any event, it seems to me unlikely that such a course will materially reduce any future delay and may well increase it, perhaps substantially.
15 The inescapable fact is that the Minister has refused to grant tenure. The decision of the Commission to refuse planning approval is based squarely on that refusal. If the Minister's refusal stands, the application is hypothetical and, as Zelling J said in the Hackney Hotel case, this Court should not entertain it. In my opinion, the appropriate course is that adopted by Wells J when he heard the appeal by the Hackney Hotel against the decision of the Planning Appeal Board - he stood the matter over to give the appellant an opportunity to demonstrate that it would be able to get access to the land and that the proposed carpark was thus not hypothetical. Such a course required the appellant to persuade the owner of the land to either sell it or to grant some other form of access, which course the appellant was not able to achieve. Hence the appeal was dismissed. In this case and in the light of the Minister's refusal to grant tenure, this Court should not embark upon the hearing of this appeal until Miss Hoffrichter is able to demonstrate that there is a reasonable prospect that she will obtain the lease necessary to undertake her aquaculture development. This Court has no jurisdiction to either quash the Minister's decision to adopt the Aquaculture Management Plan or to order him to grant the lease which Miss Hoffrichter requires. Only the Supreme Court can do that. The proceedings to achieve at least one of these aims (possibly both of them) have not only been commenced but are part heard in that Court. In the circumstances, I have come to the conclusion that the only appropriate course is for this Court to proceed no further with Miss Hoffrichter's appeal until the judicial review proceedings have been determined.
16 I direct that this matter be listed for mention only at 9.15 on Friday 25th June, 1999.
17 In the event that the parties wish this Court to give further directions prior to that date, I give liberty to apply.
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