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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 April 2000
Judgment of His Honour Judge Bowering
Respondent MOUNT BARKER PRODUCTS PTY LTD:
Counsel: MR F BELL - Solicitors: FINLAYSONS
Respondent DISTRICT COUNCIL OF MOUNT BARKER:
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE
ERD-99-1219
Judgment No. [2000] SAERDC 1
13 January 2000
Adrian Munro SMITH
v.
MOUNT BARKER PRODUCTS PTY LTD
&
DISTRICT COUNCIL OF MOUNT BARKER
(ERDC No 1219 of 1999)
JUDGMENT OF HIS HONOUR JUDGE BOWERING:
1 By application dated 28th September, 1999, Mr Adrian Smith applied to this Court for leave to serve a summons pursuant to Section 85 of the Development Act 1993. The application was accompanied by the summons to which it related plus an affidavit sworn by the applicant. A bundle of exhibits was annexed to the affidavit. Although such applications may be heard ex parte, Mr Bell appeared for Mount Barker Products and Mr Leydon for the Council, and were given leave to be heard in opposition to the application. Mr Mellor appeared for the applicant, Mr Smith.
2 The summons sought, amongst other things, a declaration that a provisional development plan consent granted on 14th June, 1996, by the District Council to Mount Barker Products is invalid for various reasons. The facts and circumstances upon which the applicant relies for the declaration and consequential relief all occurred on or before that day. This means that the breach alleged in the affidavit and to which the summons applies occurred more than three years before the commencement of these proceedings which thus are, pursuant to subsection 85(18), out of time. That subsection provides that:-
" 85. (18) Proceedings under this section may be commenced at any time within three years after the date of the alleged breach or, with the authorisation of the Attorney-General, at any later time."
3 When the application first came before me on 7th October, 1999, it was adjourned to enable the applicant to seek the authorisation of the Attorney-General to commence the proceedings. The Attorney-General has refused such authorisation. This means that they cannot proceed unless the time specified in subsection 85(18) is extended pursuant to Section 48 of the Limitations of Actions Act 1936. The relevant provisions of Section 48 of that Act are in the following terms:-
" 48. (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for-
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that-
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not-
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied-
(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section."
4 Although the proceedings do not carry the endorsement referred to in subsection 48(4), the parties have requested me not to take that into account at present.
5 The first question is whether Section 48 applies to the time limit set out in subsection 85(18) of the Development Act. In support of his contention that it does, Mr Mellor referred to a number of authorities, the one most directly on point being the decision of the Full Court of the Supreme Court in the matter of Munno Para District Council v Battersby (1988) 66 LGRA 17. The relevant statutory provisions in that case were Sections 36 and 37 of the now repealed Planning Act 1982. In so far as it dealt with civil enforcement proceedings for breaches of the Planning Act, the provisions of Section 36 of that Act were somewhat akin to Section 85 of the current Act, whilst, in so far as it imposed a time limit for the taking of such proceedings, Section 37 of the Planning Act was somewhat equivalent to the current provisions of subsections 85(18) and (19) of the current Act. The relevant provisions of Section 37 of the Planning Act were as follows:-
" 37. (1) Proceedings under this Division may be commenced at any time within twelve months after the date of the alleged contravention of, or failure to comply with, a provision of this Act or the repealed Act or, with the authorization of the Attorney-General, at any later time within five years after that date."
6 One of the questions referred to the Full Court in that case was whether Section 48 of the Limitation of Actions Act could be used to extend the time limit prescribed by Section 37 of the Planning Act. As O'Loughlin J said, at page 29, "the short answer to the second question is: 'Yes' ". In my view, the similarity of the provisions of Section 37 of the Planning Act with those of subsections 85(18) and (19) of the Development Act are such that the reasoning applied by the Court in Battersby's case is applicable to the case at bar. In so saying, I have not overlooked Mr Leydon's forceful argument that the differences between the Planning Act and the Development Act are such that the decision in Battersby cannot be applied to the provisions of the Development Act. The principal thrust of his submission was that where other provisions of the Development Act impose a time limit this Court is specifically empowered to either waive or extend that time limit, but that no such provision relates to the time limit specified in subsection 85(18) other than that specifically vested by the subsection in the Attorney-General. He pointed out that, whereas under the Planning Act there was a five year limitation imposed upon the time during which the Attorney-General could grant such an extension, under subsection 85(18) there is no time limit at all. In these circumstances, Mr Leydon submitted, the provisions of the subsection prescribe a complete code for the extension of the three year time limit for the bringing of proceedings under Section 85, a code which excludes the operation of Section 48 of the Limitation of Actions Act.
7 However, it seems to me that, in Battersby's case, O'Loughlin J adopted the wide view of the application of subsection 48(1) of the Limitation of Actions Act adopted by Mason J in General Motors-Holden's Limited v Di Fazio (1979) 141 CLR 569. I think that, in this case and in view of the similarity between the relevant statutory provisions, I should do the same. Thus, although I acknowledge the force of Mr Leydon's submission, the practicalities of the situation are that, the Attorney-General having refused his authorisation, the applicant in this case is faced with a three year time limit to which the provisions of subsection 48(1) of the Limitation of Actions Act apply.
8 Thus, the question is whether the justice of the case requires the Court to extend the time prescribed by subsection 85(18) of the Development Act. The proper determination of this question calls for a detailed examination of the relevant facts.
9 The foundry operated by Mount Barker Products is located at 19-27 Oborn Road, Mount Barker, and has, at all relevant times, been located within an Industrial/Commercial Zone as prescribed by the Mount Barker provisions of the Development Plan. Within such a zone, the use of land for a non-ferrous foundry is a use which is prescribed as neither a complying nor a non-complying use, and is thus a use the approval of which is to be considered by the Council on merit. By development application dated 29th April, 1996, Mount Barker Products applied to the Mount Barker Council for a planning authorisation to undertake a development on its land at Oborn Road. The application described the development proposed as being:-
"Relocation of Mt. Products Products Pty. Ltd. - Manufacturers and distributors including non-ferrous foundry."
10 Upon receipt of the application, the Council categorised the development proposed as a category 1 development within the meaning of Section 38 of the Development Act. The legal consequence of that is that the Council was not legally required to adopt any of the public notification and consultation procedures required by that section. Had the Council classified the development proposed as a category 2 development, it would have been required to give notice of the application to the owners or occupiers of each piece of adjacent land. The receipt of such a notice would have entitled such owner or occupier to make representations to the Council with respect to the proposed development, but would not have conferred a right of appeal upon them against the Council's decision. On the other hand, had the Council classified the proposed development as a category 3 development, it would have been required to give notice, not only to the owner or occupier of each adjacent piece of land but also to the owner or occupier of any other piece of land which would be directly affected to a significant degree by the development should it proceed and, by appropriate advertisement, to the public generally. Furthermore, any person dissatisfied with the Council's decision would have had a right of appeal, to this Court, against it.
11 However, as I have said, the Council classified the proposed development as a category 1 and no notice at all was given. As required by Section 37 of the Act, it consulted with the Environment Protection Authority. In due course and having taken into account the recommendations of the Environment Protection Authority, it granted provisional development plan consent. That consent is set out in a decision notification form dated 14th June, 1996, which form describes the nature of the proposed development as "Light Industry - Non-Ferrous Foundry" - and sets out the five conditions imposed by the Council and the eight imposed by the Environment Protection Authority. At some time thereafter construction of the foundry was undertaken, and it commenced operations. The next events, relevant to these procedures, are set out in paragraphs 10 and 11 of Mr Smith's affidavit. He deposes as follows:-
"10. Commencing in or about May, 1999, I noted emissions of fumes from the Mount Barker Products premises. These appeared to be emanating from the chimneys on those premises. They were of an acrid and intrusive nature which were easily perceived both visually and by smell in and around the vicinity of my premises, within Herriot Court generally, and in the vicinity of Waldorf School, which is attended by my children and which is located around 100 metres from my house.
11. The emissions varied in duration and intensity. The emissions caused me to feel a stinging sensation in my eyes and a burning feeling in my eyes, throat and lungs. I felt physically unwell and suffered headaches. It also affected my wife and children in a similar way and in addition they suffered feelings of nausea. On occasions when the emissions were present in the area, it was impossible for us to be outside our house without suffering these symptoms and without feeling ill."
12 As a consequence of the emissions deposed to in his affidavit, Mr Smith corresponded with the Mount Barker Council. Subsequently he did so through his solicitors, Mellor Olsson. Mr Smith says that it was as a consequence of such correspondence that he became aware for the first time that the Council had determined the nature of the development proposed as Light Industry and dealt with it as a category 1 development. He claims that the Council should have dealt with the proposed foundry as a non-complying category 3 development or, at very least, a category 2 development. He deposes that, had the Council dealt with the application as being for a non-complying category 3 development, he would have made representations to the Council and would, if necessary, have exercised the right of appeal to this Court. Hence he now seeks leave to bring these proceedings for the purpose of requesting the Court to cancel the development approval granted by the Council with respect to the foundry.
13 Sub-regulation 16(1) of the Development Regulations 1993 is in the following terms:-
" If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination."
14 It seems to me that the terms of the subsection make it clear that a Council is required to determine the nature of any development proposed either upon receipt of the application or, if the information then supplied is inadequate, upon the receipt of such additional information as it may request pursuant to subsection 39(2) of the Act. The sub-regulation also provides that the Council must proceed to deal with the application according to the determination which it has made - that is simple commonsense. If having dealt with the application in this manner the Council decides to issue a planning approval, it can only do so on the basis of the determination which it has made pursuant to sub-regulation 16(1). If, after the issue of the approval, the developer decides to either undertake the development in a way not in accord with the approval granted or to do, on the land, something lying beyond the scope of the approval, that may mean that the developer has committed a breach of the Act. It need not mean that the manner in which the Council processed the development application did not comply with all legal requirements.
15 In this case, the Council had before it an application for "Manufacturers and distributors including non-ferrous foundry". Although there is no direct evidence on the point, the decision notification form indicates that the Council classified the nature of the development proposed as being "Light Industry - Non-Ferrous Foundry". Assuming the depositions set out in Mr Smith's affidavit - particularly paragraphs 10 and 11 - to be true, it is clear that the approved development was not, at the relevant times, used in accord with the approval granted by Council. Prima facie, the use deposed to has many of the characteristics of a special industry. However, as I have said, those facts alone do not lead to the conclusion that the manner in which the Council dealt with the application was wrong. Accordingly, when determining whether Mr Smith has made out a prima facie case that the Council did not deal with the foundry application according to law, I have disregarded everything which occurred after the date of the provisional development plan consent, that is after 14th June, 1996.
16 As stated, Section 38 of the Act divides development into three categories, namely categories 1, 2 and 3. The criteria by which developments are categorised are set out in subsection 38(2) and (2a), the terms of which are as follows:-
" 38. (2) Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:
(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.
(2a) The assignment of a form of development to Category 1 under subsection (2)(a) cannot extend to a particular development if that development involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993."
17 The operations of the Mount Barker Products foundry are the subject of a licence issued by the Environment Protection Authority pursuant to the Environment Protection Act 1993. Thus its operations constitute "a prescribed activity of environmental significance" as those words are used in subsection 38(2a) of the Act. The terms of that subsection are such that it is clear that the decision of the Mount Barker Council to deal with this development as a category 1 development was wrong.
18 How, then, should the proposed development have been categorised? The answer lies in sub-regulations 32(2) and (3), the terms of which are as follows:-
" 32. (2) The assignment of various forms of development to Category 1 does not extend to developments that involve, or are for the purposes of, any activity specified in schedule 22, other than where the development is, in the opinion of the relevant authority, of a minor nature.
(3) The following forms of development are assigned to Category 2 for the purposes of section 38 of the Act:
(a) the various forms of development specified to in Part 2 of schedule 9; and
(b) developments that involve, or are for the purposes of, any activity specified in schedule 22 and that would, but for subregulation (2), be assigned to Category 1."
19 Schedule 22 to the Regulations contains an extensive list of activities of major environmental significance. Sub-paragraph 2(7) of Part A of the Schedule - under the heading "Manufacturing and Mineral Processing" is in the following terms:-
" 2. (7) Ferrous and Non-ferrous Metal Melting: the melting of ferrous or non-ferrous metal in a furnace or furnaces that alone or in aggregate have the capacity to melt in excess of 500 kilograms of metal during the normal cycle of operation."
20 It is, I think, agreed between the parties that the foundry in question falls within the terms of paragraph 2(7) above. Thus the Council should have dealt with the development application for the foundry as a category 2 development. It should, amongst other things, have followed the notification procedures prescribed by subsection 38(4) of the Act - it should have given notice of the application to the owner or occupier of each piece of adjacent land and given, to each such person, an opportunity to make representations with respect to the development to the Council. This it failed to do.
21 In so saying I think it appropriate to add that there does not appear to be any facts or other basis upon which it can be said that the Council should have dealt with the application as being for a category 3. True it is that, for a period commencing in May, 1999, fumes more akin to a special industry were emitted from the foundry, but that was well after the Council had approved the application and, for the reasons I have given, need not mean that the Council did not deal appropriately with the application.
22 Whether, in these circumstances, it would be either lawful or appropriate for this Court to cancel the development authorisation granted to Mount Barker Products by the Council in 1996 is not, subject to one matter to which I shall shortly refer, a matter which arises at this stage in the proceedings. The question now before me is whether it is appropriate for me to exercise the powers conferred upon this Court by Section 48 of the Limitation of Actions Act - whether, in the circumstances, it is appropriate for the Court to extend the time prescribed by subsection 85(18) of the Development Act. In approaching this question, I am accepting that the facts material to Mr Smith's case were not ascertained by him within the period of limitation prescribed by subsection 85(18), and that, having ascertained the relevant facts, he acted with reasonable promptness in commencing these proceedings and, in any event, within the twelve month period referred to in subsection 48(3)(b)(i). I am also assuming that the action which Mr Smith seeks to commence is one which this Court has jurisdiction to entertain. I make that assumption solely for the purpose of determining how I should exercise the powers conferred upon the Court by Section 48 and in the knowledge that that assumption is challenged by at least one of the parties now before me. The extent of this Court's powers to cancel a development authorisation - part of the relief sought by Mr Smith in these proceedings - and the circumstances in which such powers should be exercised are questions which parties in another case have requested me to reserve for the determination by the Full Court of the Supreme Court pursuant to Section 31 of the Environment, Resources and Development Court Act 1993. I have agreed, in those proceedings, to reserve the questions for such determination, and it is my expectation that they shall be shortly reserved and referred to the Full Court. However, rather than delay this matter pending the determination of those questions by the Full Court, I think it appropriate, on the basis of my judgment in Frazzetto v Ahrens Engineering Pty Ltd & District Council of Kapunda & Light (1998) EDLR 10, to proceed on the basis that the Court has the jurisdiction to grant the relief sought. Should it later transpire that my judgment in that case was wrong, any time extension which I may have been inclined to grant in this case pursuant to Section 48 will fall to the ground.
23 Having considered the matter, I have come to the conclusion that, in all the circumstances of this case, it would not be just to grant the extension of time sought by Mr Smith. Briefly, my reasons are as follows:-
· Although I accept that Mr Smith and his family have, at times, been detrimentally affected by fumes emitted from the foundry, he is not an owner or occupier of a piece of land adjacent to the foundry premises, and thus, even if the Council had dealt with the proposed foundry as a category 2 development, he would not have received notice of the application pursuant to subsection 38(4) of the Development Act, and thus has not been deprived of any right to make representations to the Council with respect to it.
· The proposed development was not a category 3 development and accordingly Mr Smith has not been deprived of any right to receive notice of the application, to make representations to the Council or to appeal to this Court, rights which, he said in his affidavit, he would have pursued had the Council so classified it.
· In my opinion, the principal purpose of these proceedings is to bring to an end the alleged unacceptable impact of the operation of the foundry upon Mr Smith's home and family. This view is, I think, supported by his affidavit. However, there is another set of proceedings presently before this Court which is likely to achieve a similar result, namely Mount Barker Products v Environment Protection Authority & Others, action number 1029/99. Mr Smith is a party to that action. The foundry operations which gave rise to the offensive odours have now ceased at the direction of the Environment Protection Authority, and such operations are not expected to resume until that action has been determined. Thus the refusal to extend the time in which to institute the current proceedings does not leave Mr Smith without a remedy.
· I am required to consider the rights and interests of Mount Barker Products. The decision of the Mount Barker Council to deal with its development application as a category 1 development was a decision of the Council and not of the company. There is no evidence before the Court which shows, or even suggests, that the company in any way colluded with that decision or was at fault in any way at all. The issue of the planning authorisation has conferred upon the company a valuable right upon which it has acted - it has constructed a foundry and commenced to operate it. The cancellation of the authorisation has the potential to inflict substantial harm upon the company. In all the circumstances, I do not think it just that, after the expiration of the time limit specifically prescribed, the company's planning authorisation should now be subject to challenge by a person whose rights have not been violated and who is already party to other proceedings in which the remedies sought will go a large part of the way, if not the whole way, to meeting the substance of the complaint raised in these proceedings.
24 For these reasons, I decline to extend the time for the commencement of these proceedings prescribed by subsection 85(18) of the Development Act. Leave to serve the summons in these proceedings is refused.
25 The parties have liberty to apply for a final order.
2
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