Rabbah v City of Mitcham No ERD-99-1258 [1999] SAERDC 98 (23 December 1999)

Last Updated: 6 June 2001

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

07/12/1999.

Catchwords

BUILDING CONTROL - TOWN PLANNING Development Act 1993 - application to vary earlier development approval - earlier approval subject to mediation agreement to which abutting neighbours were parties - abutting neighbours refuse to agree to variation - decision by Council not to decide development application on ground that existance of agreement means that development hypothetical - development not hypothetical - Council to consider and determine application.

Materials Considered

• Hackney Hotel Pty Ltd v Corporation of the Town of St Peters and Bleechmore (1984) 36 SASR 265, considered.

Representation

Appellant CHUKRALLA RABBAH:
Counsel: MR P LEADBETER - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent CITY OF MITCHAM:
Counsel: MR G MANOS - Solicitors: GEORGE MANOS & ASSOCIATES

ERD-99-1258

Judgment No. [1999] SAERDC 98

23 December 1999

CHUKRALLA RABBAH

v

CITY OF MITCHAM

ERD 1258/99

[1999] SAERDC 98

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1 This is an appeal against a decision of the Council of the City of Mitcham to refuse to process and decide a development application made to it pursuant to the provisions of the Development Act by Mr Chukralla Rabbah on 10th September, 1999.

2 Mr Rabbah is the owner of land lying within the area of the City of Mitcham, namely the residential allotment situated at 21 Bellevue Drive, Bellevue Heights. On 10th March, 1999, the Council granted Mr Rabbah provisional development plan consent to construct a two storey dwelling on the land. The consent was subject to fifteen conditions. On 21st April, 1997, provisional building rules consent and development approval was granted. Subsequently, on 26th June, 1997, Mr Rabbah applied to the Council, seeking provisional development plan consent to vary the plans approved by Council the previous April. The Council classified this application as a Category 3 development within the meaning of Section 38 of the Development Act and gave the various notices required by that section. As a consequence, four representations were received from Mr Rabbah's neighbours, namely Mr & Mrs Carmichael, Mr & Mrs Dowling, Mr & Mrs Elekes and Mr & Mrs Pearce.

3 The Council refused that application and Mr Rabbah appealed to this Court against it. The neighbours who had objected were joined as parties. However, prior to the matter coming on for hearing the parties agreed to submit the matter to mediation by two members of the Court pursuant to Section 28(b) of the Environment, Resources and Development Court Act. The mediation conference, presided over by Her Honour Judge Trenorden and Commissioner Berriman, commenced on 25th August, 1997, and concluded with an agreement between the parties. The agreement was reduced to writing - in the form of a mediation report - and signed by all parties. The agreement was formally recorded as an order of the Court on the 25th day of September, 1997, the terms of which approved the variation to the plans approved on 21st April, 1997, "but only to the extent of the details shown on the plans annexed hereto and marked CR1 and CR2, together with the obligations set out in the mediation report in the within matter which obligations are hereby incorporated as conditions of development approval."

4 Mr Rabbah sought a further variation to the plans. It related to a variation to the internal layout of the dwelling and the installation of additional windows. On 30th December, 1997, the Council granted development approval to such variation.

5 Mr Rabbah proceeded to build his house. However, in so doing, he failed to comply with all of the conditions imposed by the various approvals, and, in particular, with some of the conditions contained in the approval conferred by the Court order of 25th September, 1997, that is, in accord with the Court order based on the mediation report. As a consequence, the Council issued an enforcement notice against him pursuant to Section 84 of the Development Act. Mr Rabbah appealed against the directions contained in the notice. After hearing the appeal, the Court upheld some of the directions contained in the notice and struck out others.

6 By development application made to the Council on 10th September, 1999, Mr Rabbah sought to further vary his development approval. The purpose of the application was to have approved those parts of his development which had been undertaken contrary to the conditions of the earlier approvals. The principal thrust of the application was the approval of a large area of concrete in front of the house, in lieu of a lawned area shown on the mediated plans. However, the Council was of the view that it was not lawfully open to it to grant an approval the practical effect of which would be to vary the terms of the mediation agreement unless all parties to the mediation agreement concurred. Thus, by letter dated 6th October, 1999, it wrote to Mr Rabbah a letter containing the following:-

"As you are aware, Mr Rabbah entered into a legally binding mediation agreement with Council and four of his neighbours, requiring that the development at 21 Bellevue Drive, Bellevue Heights, be undertaken with strict accordance with the mediation agreement. We have formally consulted with the neighbours party to the mediation agreement and they each advise that they are not prepared to agree to a variation to the mediation agreement relating to the concrete area in the front yard of the property.

We therefore advise that Council is not in a position to assess or make a decision of the provisional development plan consent application, as no variation to the mediation agreement is possible to give effect to the proposed variation.

Should you wish to further this issue with the parties to the mediation agreement and seek approval of all parties to the variation, please advise Council and we will then be in a position to process the provisional development plan consent application."

7 As stated, it is the decisions of Council not to process the development application made by Mr Rabbah in September, 1999, which is the subject of this appeal. Upon the appeal coming on for hearing, Mr Leadbeter appeared for Mr Rabbah and Mr Manos for the Council.

8 Mr Leadbeter submitted that, although the process of mediation is recognized by Section 28(b) of the Environment, Resources and Development Court Act, it is not recognized, in any way, by the Development Act. In these circumstances, he said, the mediation of disputes arising from earlier development applications should have no impact upon the manner in which an authority processes a subsequent development application. Notwithstanding that a development application relates to an earlier approval granted as a consequence of mediation, the authority is required to deal with the application in accordance with the provisions of the Development Act and, in particular, with the requirements of part 4 of that Act. Section 41 requires the authority to deal with each application "as expeditiously as possible and within the time prescribed by the regulations", while subsection 41(2) is in the following terms:-

"41(2) If a relevant authority does not decide an application within the time prescribed under subsection (1), the applicant may, after giving 14 days notice in writing to the relevant authority, apply to the court for an order requiring the relevant authority to make its determination within a time fixed by the Court."

9 These provisions are, Mr Leadbeter submitted, inconsistent with the principle that, once an approval has been issued as a consequence of a mediation, that approval cannot be varied by subsequent development approval without the consent of all parties to the mediation. If this be so, he asked rhetorically, does the same principle apply to settlements concluded at conferences conducted pursuant to Section 16 of the Environment, Resources and Development Court Act? Furthermore, he added, what is the position with respect to agreements reached between parties to a planning dispute where the matter is settled outside of the court premises, eg, where a representer appeal is withdrawn prior to conference as a consequence of a private agreement involving the developer and the representer appellant. If an agreement is reached, whether by way of mediation, conference settlement or otherwise, how long does the embargo last - do the non-developer parties have an embargo over future development of the developer's land in perpetuity, so that, as far as that land is concerned, the planning system virtually ceases to exist? Questions such as these, Mr Leadbeter submitted, clearly show that mediated agreements do not constitute a bar to the approval, by the relevant authority, of subsequent development applications - which may propose changes inconsistent with the mediated agreement - even if the consent of all parties to the mediation cannot be obtained.

10 Somewhat circumspectly, Mr Manos did not attempt to answer these questions. The central thrust of his principal submission was that, although it is accepted that the Development Act confers upon relevant authorities obligations to deal with and decide development applications, there is one well recognized exception to this principle, namely development applications relating to hypothetical developments. He referred to the matter of Hackney Hotel Pty Ltd v Corporation of the Town of St Peters and Bleechmore (1984) 36 SASR 265, a case in which a developer applied to develop land which it neither owned nor had any reasonable prospect of gaining access to. He referred to that portion of the judgement of Zelling J appearing at page 271 namely:-

"In the event the matter came before a judge of this Court sitting in a division of this Court. He did not fail to take jurisdiction as was suggested in the argument of counsel for the respondent. Wells J in fact took the matter into jurisdiction and considered the facts so far as it was necessary for him to do so. Having considered them, he came to the conclusion, quite rightly in my opinion, that the application was purely hypothetical. Courts do not give answers to hypothetical questions ..... 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 can 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 upon 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."

11 Although that case related to the consideration of a hypothetical development before a court, the principle is generally regarded as being equally applicable to planning authorities.

12 Mr Manos further submitted, correctly in my view, that circumstances in which developments may be hypothetical are not limited to those relating to lack of appropriate tenure or effective access to the land concerned. The question of whether a development can be properly viewed as hypothetical is a question of fact to be determined in the light of all of the relevant circumstances of the case. The relevant circumstance in this case is that there is a mediation agreement signed by the Council, Mr Rabbah and four of his neighbours. Mr Manos submitted that the mediation agreement is enforceable between the parties and that, as such, it constitutes a sufficient bar to Mr Rabbah undertaking the development proposed in the application the subject of this appeal to justify regarding the proposed development as hypothetical.

13 There is, in my mind, little doubt that the work proposed by Mr Rabbah in the development application will, if undertaken, constitute a breach of the mediation agreement. In particular, it will constitute a breach of condition 3 which provides, in part, that "Rabbah will undertake the works strictly in accordance with the plans marked CR1 and CR2 annexed hereto (hereinafter referred to as the 'approved plans')". Thus I accept the submission of Mr Manos that should Mr Rabbah undertake the proposed development he will be in breach of the mediation agreement and both the Council and the abutting residents will be in a position to take appropriate legal proceedings to remedy that breach. I also accept that, amongst other things, such proceedings may conclude with an order for specific performance of the agreement.

14 Does this lead to the conclusion that the development proposed by the application is hypothetical? Having considered the matter I have come to the conclusion that it does not. Whilst it is true that a breach of the mediated agreement confers upon both the Council and each of the four abutting owners the right to commence proceedings seeking specific performance of the mediated agreement for its breach, it is generally recognized that an order for the specific performance of a contract is discretionary. Proof, before a court, of breach of contract does not automatically result in an order for specific performance against the party who has committed the breach. There are many factors which a court takes into account when determining whether it should order specific performance. Thus I think that the mediation agreement should be viewed as a settlement of the legal proceedings in the course of which it was signed and as an obstacle which Mr Rabbah may have to overcome should he seek to further develop the land contrary to the agreement. I do not think that it means that the proposed development is hypothetical.

15 Mr Manos raised, albeit somewhat tentatively, the question of whether, in the circumstances of this case, the Development Assessment Commission rather than the Council should be the relevant authority. As I construe the provisions of Section 34 of the Act, and Regulation 38 of and the 10th Schedule to the Development Regulations, 1993, the existence of the mediation agreement does not render the Development Assessment Commission the relevant authority. I notice however that subsection 34(1) (vi) (A) empowers the Minister to declare that she desires the Commission to act as (or to become) the relevant authority because, in her opinion, "the relevant Council has demonstrated a potential conflict of interest in the assessment of the development because of a publicly stated position on that particular development." Whether the existence of the mediation agreement and the publicity which has surrounded this matter means that the Mitcham Council "has demonstrated a potential conflict of interest in the assessment of the development," is a decision which is not for me to make. However, apart from that provision, I do not construe Section 34 as rendering the Commission the relevant authority.

16 For these reasons, I am of the opinion that the Council should proceed to consider and determine the application in accord with the normal procedures applicable under the Development Act. I order accordingly.

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