Adelaide Hebrew Congregation Inc v City of Burnside & Harrow Trust No ERD-01-1375 [2002] SAERDC 19 (23 May 2002)

Last Updated: 28 September 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

30/01/2002 to 01/02/2002, 08/02/2002, 22/02/2002, 29/04/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to erect multiple dwelling for use as supported residential facility - Mixed Use (Glenside) Zone - appeal against approval by Council - whether proposal would constitute risk to children attending adjoining school and synagogue - whether appeal based on 'improper purpose' - whether test for abuse of process relevant to determining improper purpose - appellant concerns over risk not made out - appeal founded, in part, on improper purpose - appeal allowed only to extent necessary to vary conditions of consent imposed by Council.

• Development Act 1993 ;
• Environment, Resources & Development Court Act 1993 ss 17(4), (4a), referred to.
• Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509;
• Cavanagh-Lang v O'Callaghan and Ors 2000 SASC 187;
• DAC v Macag Holdings Pty Ltd [2001] SASC 189; 80 SASR 104, considered.

Representation

Appellant: ADELAIDE HEBREW CONGREGATION INC
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF BURNSIDE
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

Respondent: HARROW TRUST
Counsel: MR S HENRY - Solicitors: MELLOR OLSSON

ERD-01-1375

Judgment No. [2002] SAERDC 19

23 May 2002

ADELAIDE HEBREW CONGREGATION INC

v

CITY OF BURNSIDE

and

HARROW TRUST

(ERDC No. 1375 of 2001)

[2002] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By development application dated 28 August 2001, the Harrow Trust applied to the City of Burnside ("the Council") for provisional development plan consent for a development described in that application as a "supported residential facility". Upon receipt, the Council classified the proposal as a Category 3 development within the meaning of Section 38 of the Development Act 1993, and gave the public and other notices required by the provisions of that section. As a consequence, it received eight representations, one objecting to the proposal and seven in support. Having considered the application and the representations received, the Council resolved, on 6 November 2001, to grant provisional development plan consent, subject to one condition. The Adelaide Hebrew Congregation Incorporated, which had made a representation to the Council opposing the proposed development, was aggrieved by the Council's decision and appealed to this Court against it.

2. When the matter came on for hearing, the appellants were represented by Mr G Manos, of counsel, the Council by Mr J Hilditch, of counsel, and the Harrow Trust by Mr S Henry, of counsel. Sworn evidence was given by Mr G Rich, President of the Adelaide Hebrew Congregation, Messrs. G Burns and D Litchfield, both qualified and experienced town planners, Mr P Weaver, a qualified and experienced traffic engineer, Mr C Turnbull, a qualified and experienced acoustic engineer, Dr F Briggs, Professor of Child Development at the University of South Australia, Mr R Bruggemann, Chief Executive Officer of the SA Intellectual Disability Services Council, Dr K Nankervis, a senior lecturer in disability studies at RMIT University, Victoria, Dr B Matthews, a university lecturer and consultant in disability services, Mr L Byass, a trustee of the Harrow Trust, and Dr R Marshall, Vice President of the Massada College Board of Governors.

3. The Court conducted a view of the subject land and received a number of exhibits.

The Subject Land

4. The subject land comprises Allotment 101, Flemington Street, Glenside. It is presently in the ownership of the Minister of Mines and Energy. The land is vacant save for a fenced off area in the northeastern corner, which is used from time to time for testing purposes by employees of PIRSA. The Certificate of Title (CT5398/716) indicates that the land has a frontage to Flemington Street of 74.0m and a depth of 80.67m, producing a site area of approximately 5,970m2. The land has a covering of grass and weeds, with a few dispersed non-native trees growing on it, including a group of Elm trees which appear to have regenerated from root suckers in that part of the land adjacent to Flemington Street. It appears that none of the trees on the land is a significant tree as that term is used in the regulations under the Development Act 1993.

5. The land is fenced on two of its four sides, being unfenced to Flemington Street and along its western boundary. The PIRSA testing pit, which occupies the northeastern corner of the site, is enclosed with mesh security fencing and double gates at the western end to provide vehicular entry directly from Flemington Street.

The Locality

6. The subject land is surrounded by a number of different land uses. To the immediate east, and to the south, on the opposite side of Flemington Street, is residential development at medium to low densities. To the immediate north is a land parcel incorporating the PIRSA testing pits, which will remain in the ownership of the Minister of Mines and Energy. Further to the north is Massada College and the Adelaide Hebrew Congregation synagogue and associated community centre. Further to the north again is a mixture of low and medium density residential development.

7. On the western side of the subject land is a tree-lined bitumen driveway including 30 parking spaces on its western side. The driveway, named "Ben Simon Place", is a private road which provides access to Massada College and the adjoining synagogue.

8. Further to the east, along Flemington Street, are the offices of the Royal District Nursing Society, and north of that the offices of PIRSA. To the west of Ben Simon Place are the grounds of Glenside Hospital, including an entrance road into the hospital grounds.

9. Flemington Street is a local road under the care and control of the Council. It runs west from Conyngham Street to Byhurst Avenue. Parking controls and speed restrictions apply to portions of Flemington Street, including the area in front of the subject land.

The Proposal

10. Information submitted to the Council by the Harrow Trust describes the proposal thus:

"The facility will provide semi-independent living accommodation for 12 people with mild to medium intellectual disability, who possess reasonable independent living skills. They require day supervision/leadership and limited-time presence by supervisors. Most residents will be capable of being gainfully employed in sheltered workshops or by taking up community activities/contracts under the direction of a supervisor/coordinator. The project will start out with 12 male clients, mainly in the 17 to 25 age group. This artificial age grouping at start up will gradually erode over time as the Harrow Group widen their client base on this and other sites, as clients exit the system and new clients take up residency. However, for the inaugural intake at Flemington Street, hopefully this will be their long-term home for many years.

The facility is modelled on smaller supported aged accommodation facilities ... Each client will have their own separate living quarter where they can relax and sleep and in some cases prepare light meals. Communal dining and recreation facilities are also provided, as a number of clients will find it easier and more convenient to have support in day-to-day activities. Laundry and other housekeeping issues will be managed/completed by parents/guardians/paid carers. Recreational support facilities are also to be provided through an extended garden including a vegetable patch and a workshop area. The workshop will allow low-level recreational opportunities as well as providing an exercise/activity area for the wetter months of the year."

11. It is proposed that the facility, once developed, would be licensed under the Supported Residential Facilities Act 1992, with care and supervision being provided in accordance with that act. Oversight of registration and ongoing compliance would be the responsibility of the Eastern Metropolitan Regional Health Authority Inc.

12. Provision has been made for the parking of three vehicles at the front of the site (including one space for disabled persons) and sixteen vehicles at the rear. At least two additional spaces would be available in a double garage/carport attached to the building.

13. Those portions of the development site not occupied by buildings, driveways and carparking facilities would either be landscaped or set aside as a vegetable garden. All but one of the trees presently on the site would be removed and replaced with more appropriate species.

14. A land division layout entitled "proposed sub division plans" was submitted with the application but did not form part of the latter. This plan foreshadows a land division which would create the development site, a site around the PIRSA testing pit and an access lane to Flemington Street, with reciprocal rights-of-way in favour of the Harrow Trust, and three "townhouse" sites, each with a frontage to Flemington Street.

Assessment

15. The subject land is located within the Mixed Use (Glenside) Zone as depicted on Map Bur/6 in the Development Plan for the City of Burnside dated 1 February 2001.

16. There are four objectives for that zone:

Mixed Use (Glenside) Zone

"Objective 1: A zone accommodating, within designated areas, office, residential and educational land uses surrounding a central core of buildings used for hospital purposes."

"Objective 2: Orderly and proper development of the zone through comprehensive re-development and rehabilitation of existing buildings."

"Objective 3: A zone with a functional and co-ordinated road and movement network linking with existing public roads to ensure an efficient use of land."

"Objective 4: A zone where a diverse range of land uses can coincide in harmony with no adverse impacts on one another."

17. Zone Principles of particular relevance are:

"Principle 1: Individual buildings should have a high standard of design, and have adequate regard to their siting by:

(a) forming part of the larger composition of the area in which the building is situated;

(b) the use of external materials which are sympathetic to the character of the area; and

(c) architectural detailing of the particular building reinforcing the character set by the design and its location."

"Principle 4: Points of vehicular access or egress between sites on Conyngham Street and Flemington Street should be kept to a minimum utilizing where possible internal roads and driveways."

"Principle 9: Residential development within the zone should:

(a) create a safe, pleasant and convenient place in which to live;

(b) maximize the value of the land by developing a range of housing types primarily on small allotments achieving an overall medium-density of housing;

(c) utilize innovative servicing techniques;

(d) utilize energy efficient designs;

(e) maximize the outlook and benefits of public open space;

(f) not exceed three storeys in height;

(g) utilize efficient, innovative and cost effective road design and construction; and

(h) provide adequate usable private outdoor living areas appropriately located and of a size suitable for the likely future occupants of the dwelling."

"Principle 10: Development in Policy Areas 2, 3 and 4 should be designed so as to reasonably maintain the privacy of hospital patients within Area 1."

18. The subject land is also located within Policy Area 2 in the Mixed Use (Glenside) Zone, the Objectives for which are:

"Objective 1: An area primarily accommodating residential development of medium densities."

"Objective 2: An area where residential development replaces hospital support functions as and when those support functions are transferred to Mixed Use (Glenside) Zone - Area 1 or become redundant."

19. Relevant Area 2 Principles are:

"Principle 4: Development undertaken with Area 2 should be primarily residential comprising dwellings on small sites at medium densities."

"Principle 5: Development should not exceed three storeys in height in Area 2."

"Principle 8: Development in that portion of Area 2 adjacent to Flemington Street should:

(a) be sympathetic to the scale of development on the southern side of Flemington Street;

(b) not exceed two storeys in height; and

(c) be set-back no less than six metres from Flemington Street."

20. Mr Burns and Mr Litchfield, the only qualified planners to give evidence, were agreed that the most appropriate description of the proposal was a "multiple dwelling", which term is defined in the Development Regulations 1993 as follows:

" 'Multiple dwelling' means one dwelling occupied by more than 5 persons who live independently of one another and share common facilities within that dwelling."

21. Mr Manos submitted that the level of supervision entailed in the proposal effectively rendered it an institutional rather than residential use. Objective 1 for Area 2 of the Mixed Use (Glenside) Zone envisaged the area "primarily accommodating residential development of medium densities". Being an institutional use, the subject proposal was inappropriate within Area 2.

22. It was Mr Henry's submission that the scale of the proposal and the nature of the supervision entailed were consistent with accommodation designed specifically for aged persons, which type of accommodation was referred to in the objectives for Area 4 of the Mixed Use (Glenside) Zone as "residential accommodation for the ageing". Accordingly, the proposal was properly characterised as residential rather than institutional.

23. Neither the Development Act nor the Regulations under that act define "institution" or "institutional use". The proposed development is not included in the classes of use designated as "non-complying" within the Mixed Use (Glenside) Zone, and even were Mr Manos correct in his submission that the proposal is an institutional use, it would be a consent use within an area in which the use sought is primarily (but not solely) residential. The proposed use, if not residential, is so akin to a residential use in both its appearance and function that it would, in my view, be appropriate, in a generic land use sense, within that area. In any event, I prefer the view put by Mr Henry, and supported by the wording of the objectives for Zone Area 4, that the proposal is correctly characterised as a residential use, and that the most accurate description is, as suggested by both Mr Burns and Mr Litchfield, a "multiple dwelling".

24. The evidence of both Mr Burns and Mr Litchfield was that the subject proposal was generally consistent with the relevant provisions of the Development Plan, although Mr Burns suggested a number of minor amendments to the layout and siting of the proposal, and a number of conditions of approval arising from his consideration of the proposal.

25. The evidence of Mr Weaver was that, while the proposed development did not meet the Council's guideline of two parking spaces per residential unit, the nature of the proposed development was such that it would require fewer carparking spaces than normal, given that residents would not own cars. Mr Weaver was satisfied that the number of spaces provided would be more than adequate to accommodate the parking demand created by the proposed development and that the latter would not result in adverse traffic impacts on the adjacent road network, including Flemington Street.

26. Overall, Mr Weaver was satisfied that those provisions of the Development Plan relating to traffic, access and parking were satisfied by the proposal.

27. In representations made to the Council by the appellant, concern was raised that noise from activities on the site of Massada College and the associated synagogue and community centre would impact on the amenity of the proposed semi-independent living units.

28. In response to these concerns, Mr Turnbull predicted noise from vehicle movements, religious activity, social functions and children playing on the land adjacent to the proposed site. His predictions indicated that the requirements of the Environment Protection (Industrial Noise) Policy, music noise criteria, Australian/New Zealand Standard AS/NZS 2107 and sleep disturbance criteria would all be met. He concluded that, from an environmental noise perspective, the proposed development and development on adjoining land could coexist, with neither creating adverse impacts on the other.

29. No expert evidence was called by the appellant to contest the views expressed in evidence by Messrs Burns, Litchfield, Weaver and Turnbull, nor was any issue raised, in the course of cross-examination of these witnesses, which would bring into question the views expressed in their evidence, save for the question of child safety. The primary dispute in this matter, and the issue to which the greater part of the evidence was devoted, turned on a submission by the appellant that the proposal, by placing young men with an intellectual disability in close proximity to children attending Massada College, created a risk of the latter being exposed to sexual misbehaviour if the development proceeded as planned. A second area of dispute concerned an application, by the second respondent, for the appeal be dismissed on the basis that, pursuant to Section 17(4) of the Environment, Resources and Development Court Act 1993, it had been instituted "for the purpose of delay or obstruction, or for some other improper purpose".

30. I will deal with these issues in turn.

Child Safety

31. Mr Manos, in support of the submission, made on behalf of the appellant, that the proposal would create a risk of children attending Massada College or the synagogue being exposed to sexual misbehaviour, referred to the evidence of Professor Briggs.

32. Early in the proceedings, and before Professor Briggs's statement of evidence was tendered, Mr Henry submitted that the Court should not receive that evidence, on the basis that it did not give rise to a relevant planning consideration in this matter.

33. One of the primary functions of land use planning is to separate incompatible uses. The issue raised by the appellant concerns the land use wisdom of siting the proposed development adjacent to a primary school and kindergarten, a juxtaposition which, on the evidence of Professor Briggs, would create a greater risk of children being the subject of sexual misbehaviour than was the case at present. While it would have been premature, at the time Mr Henry's submission was made, to speculate on the likelihood of Professor Briggs' concerns being made out, those concerns, if they were made out, went to a core land use issue: was the proposed development compatible with adjoining development? Relevantly, Zone Objective 4 seeks:

"A zone where a diverse range of land uses can coincide in harmony with no adverse impacts on one another."

34. Similarly, Zone Principle 9 requires residential development to create, inter alia, a "safe .... place in which to live", as do other Development Plan provisions, including Council Wide Principle 3 and Zone Objective 2.

35. It seems to me that whether evidence proposed to be given raises relevant planning considerations is a question entirely separate from that of whether the concerns expressed in that evidence are made out.

36. On that basis I ruled the evidence of Professor Briggs admissible.

37. The primary thrust of Professor Briggs' evidence can be summarised thus:

(a) people with an intellectual disability are significantly more likely to have been sexually abused during their childhood;

(b) people who have been sexually abused are more likely to engage in sexually abusive behaviour than those who have not;

(c) given that the men to be housed in the proposed development are significantly more likely to have experienced sexual abuse during their childhood (possibly with inadequate sexuality education and without relevant treatment), there is an increased risk that they will commit sex offences with children; and

(d) that being the case, it is inappropriate to site the proposed development in close proximity to a school and a community centre used by children and young people.

38. In support of the first of these propositions, Professor Briggs referred to American and Canadian studies which suggested that children with disabilities (whether physical or intellectual) were from three to seven times more likely to experience sexual abuse than non-disabled children. The likelihood of abuse was greatest in the case of children who had not received sexuality education, one 1986 study finding that, of the intellectually disabled children the subject of the study, all who lacked sexuality education had been abused compared with only 12% of those who had been given education.

39. Professor Briggs referred also to a New Zealand study, of which she was part author, which concluded that 80% of girls with learning difficulties in special classes had been sexually abused by more than one person. However, in the course of cross examination, she acknowledged that it was not possible to extrapolate from the New Zealand data on girls to predict the likely rate of abuse in a comparable sample of boys. She also acknowledged that she was unaware how many of the subjects of the studies to which she had referred fell within the scope of the definition of intellectual disability used by the Intellectual Disability Services Council, which definition included, inter alia, an IQ of less than 70, and further, that research based on interviews with people with an intellectual disability was hampered by a tendency, on the part of those interviewed, to provide the response they felt the interviewer was seeking, regardless of whether that response represented the truth.

40. Dr Nankervis, in evidence, expressed the view that:

"Firm conclusions in relation to the prevalence of offending by people with an intellectual disability based on the available literature is impossible due to:

(a) vague subject definition and clarification;

(b) frequently poor research methods;

(c) differences between the criminal justice and intellectual disability systems;

(d) the tendency of researchers to include people with 'borderline' disability and people with an IQ above 70, the cut off score for a diagnosis of intellectual disability."

41. Dr Nankervis agreed with the view expressed by Professor Briggs that a large proportion of people with an intellectual disability were abused at some stage of their lives, but did not agree that there was a necessary correlation between experiencing higher levels of abuse, and exhibiting higher levels of sex offending. A history of sexual abuse as a child was, in her opinion, only one of a complex range of factors, biological, psychological and environmental-social, which pre-disposed a person to sex offending, and there was not, in the view of Dr Nankervis, a direct linear relationship between a background of sexual abuse and the development of sex offending behaviours. In this regard, she concluded that:

"Generally speaking, the risk factors associated with the development of sex offending behaviours are the same for people with and without an intellectual disability .... it is clear that there is no reason to believe that [people with an intellectual disability] ....are more likely to offend than any other member of the community, that problematic behaviours are likely to be detected at an early age, and that people over 18 years of age are unlikely to begin offending. The people that the Harrow Trust plans to accommodate on the proposed site do not constitute a risk to the community."

42. Similar views were expressed, in evidence, by Dr Matthews:

"I disagree strongly with Professor Briggs' assertion that 'the men living at 15 Flemington Street, Frewville will be significantly more likely to have experienced sexual abuse in childhood ....[and] there is an increased risk that they will commit sex offences with children' .... the plan is to offer places ..... to young adults who have come from family backgrounds similar to those in which most of us have grown up. I would also disagree with Professor Briggs' assertion on the basis of the very low incidence of reports of sexual 'impropriety' in the local population of people with an intellectual disability who are being supported in both institutional and community settings."

43. Dr Matthews summarised his views as follows:

"1. The proposed residential development at 15 Flemington Street, Frewville presents little, if any, risk to the community and children using nearby facilities.

2. The development is consistent with the range of options being encouraged for people with an intellectual disability in industrialised democracies throughout the world.

3. Supervision of proposed residents has been well planned with contingency plans developed for emergencies and long-term supervision of residents. The degree and nature of supervision being provided makes it most unlikely that proposed residents would be in a position to behave offensively in the community.

4. Considerable attention has been given to issues of privacy for residents of the proposed facility and the community.

5. The proposed development has been meticulously planned with considerable input from a range of government agencies."

44. The evidence of Mr Bruggemann was that, in response to the concerns expressed by Professor Briggs, he had had prepared an analysis of the records of the Intellectual Disability Services Council to establish the number of instances in which clients receiving services from that body (currently some 4,000 people) had been reported as having committed, or having attempted to commit, sexual offences with children. That analysis showed that, over the last 10 years, there had been twenty instances of sexual abuse, the majority of these being at the less serious end of the spectrum.

45. The difference between the views expressed respectively by Professor Briggs and Drs Nankervis and Matthews, said Mr Bruggemann, was largely attributable to the fact that the estimates of the incidence of sexual offending amongst people with an intellectual disability in the studies referred to by Professor Briggs were inflated by the inclusion of people with borderline intellectual functioning, ie people who would be regarded by the general community as "slow", but whose IQ's would be well above the level used by the IDSC (and most similar agencies around the world) to define intellectual disability (IQ less than 70). Both Dr Matthews and Dr Nankervis were of the view that it was this "borderline" group which formed a significant percentage of sexual abusers, and which was over-represented in the prison population.

46. Mr Bruggemann advised the Court that it was intended that the proposed development would be licensed under the Supported Residential Facilities Act 1992. Licensing under that Act imposed conditions concerning the selection of clients to reside in the proposed development, as well as for assessment of the suitability of the premises for the purpose and the suitability of those who would operate or manage the facility. The IDSC had participated in, and assisted with, the evolution of the subject proposal over a period of two and a half years. Residents would be chosen from a domestic rather than an institutional background, and would almost certainly have been to one of three specialist schools for people with an intellectual disability in South Australia.

47. Does the proposed development, as suggested by Professor Briggs, create a risk to children attending Massada College or the adjoining synagogue and community centre, such as would bring the proposal into conflict with relevant Development Plan provisions, including Council Wide Principle 3, Zone Objectives 2 and 4 and Principle 9(a)?

48. It was common ground between the parties that the risk to children of sexual abuse is present within all communities. Measures to protect children generally fall within the realm of supervision and education, rather than that of land use regulation. The question to be resolved in these proceedings, however, is whether the siting of the proposed development in close proximity to a school and community centre creates a level of risk significantly higher than that applying generally within the community.

49. All the experts were agreed that people with an intellectual disability were more susceptible or vulnerable to sexual abuse than those without such a disability. Mr Henry submitted that that susceptibility did not necessarily translate into a higher incidence of sexual abuse in the case of people with an intellectual disability. The American, Canadian and New Zealand studies referred to by Professor Briggs in support of the proposition that the incidence of sexual abuse was many times greater for all children with intellectual disabilities than it was for others do not, in my view, constitute a solid foundation for such a proposition, given that:

(a) it appears that some, if not all the cited studies included subjects with "borderline" intellectual disability, and were not restricted to those meeting the generally accepted measure of intellectual disability;

(b) no attempt had been made to factor in variables such as family circumstances, socio-economic status and institutionalisation as predictors of the incidence of sexual abuse;

(c) data obtained by interviewing respondents with an intellectual disability was of dubious reliability because of the tendency, acknowledged in evidence by Professor Briggs and Dr Nankervis, for such respondents to answer in the way they thought the interviewer wanted them to answer.

(d) the size of the sample groups used in some of the studies was quite small.

50. However, even if it is accepted that the incidence of sexual abuse of children with an intellectual disability is significantly greater than for others, it does not, in my view, necessarily follow that the young men chosen to reside in the proposed development have been sexually abused, nor that, even if they have been abused, they will exhibit sexually abusive behaviour themselves.

51. The principal research upon which Professor Briggs founded her assertion that a history of sexual abuse in childhood was likely to result in sexually abusive behaviour by the victims was a study she had jointly undertaken with Associate Professor Russell Hawkins for the Australian Institute of Criminology in 1994-95. That study involved 200 male victims and perpetrators of child sexual abuse, and compared the childhood experience of 84 convicted child sex offenders and 116 men who volunteered for the study on the basis that they had been sexually abused as children but had not gone on to offend themselves. The principal differences between those who had offended and those who had not were that the convicted offenders were:

(a) abused by, on average, seven times more offenders than victims who did not replicate their abuse;

(b) more socially disadvantaged as children, and

(c) received more physical and verbal abuse than non-offenders.

52. Although it appears some of the convicted offenders had an intellectual disability, the study did not seek to establish what proportion of the convicted offenders fell within the generally-accepted definition of "intellectually disabled", even though Professor Briggs asserted that "men with intellectual disabilities were over-represented in the prison population", a view which, she acknowledged, was based on comments by prison staff.

53. In my assessment there is nothing, in the research to which Professor Briggs has referred, to suggest that the incidence of sex offending by people with an intellectual disability differs significantly from that of the non-disabled population. That being the case, the foundation upon which she relies, in concluding that the siting of the subject proposal is inappropriate, is the greater likelihood of one or more of the occupants having been sexually abused, thus resulting in a greater likelihood of sexually-abusive behaviour.

54. The evidence of Mr Bruggemann and Mr Byass was that occupants of the proposed development would come from a family rather than institutional background, and would be selected on the basis of their capacity for semi-independent living. Any behavioural problems, including sexual misbehaviour, would, in their view, have become evident long before a prospective occupant became eligible for accommodation in the subject development, and would render that person unsuitable for the facility.

55. Having considered all the evidence, I am satisfied that there is no basis upon which to conclude that the development as proposed represents a risk to the children attending Massada College or the associated synagogue and community centre any greater than that represented by any other residential development of a comparable scale. I am reinforced in this view by the evidence of Dr Marshall, Vice President of the Board of Governors of Massada College, who advised the Court that the College did not object to the subject proposal, on the basis that it would pose no special risk to the children at the school.

Section 17 (4) Application

56. Section 17(4) of the Environment, Resources and Development Court Act 1993 relevantly provides:

"(4) Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, of its own initiative or on the application of a party to the relevant proceedings-

(a) dismiss or determine any proceedings that appear -

(i) to be frivolous or vexatious; or

(ii) to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose:

...."

57. Mr Henry, for the second respondent, referred to two exhibits in support of his contention that the appeal was motivated primarily by a desire, on the part of the appellant, to delay or prevent the proposal proceeding, in order to keep open the possibility of obtaining the subject land for the future development of an aged care facility for members of the Adelaide Hebrew Congregation, that desire constituting an "improper purpose" as that term is used in Section 17(4)(a)(ii).

58. Exhibit G, the first exhibit referred to by Mr Henry, which exhibit was obtained by subpoena, was a letter from Mr Rich, the President of the Adelaide Hebrew Congregation, to Mr Jim Hallion, CEO of the Department of Industry and Trade, which department was handling the sale of the subject land. The letter appears to respond to advice that the subject land had been sold to a third party, presumably the second respondent. The second paragraph of that letter reads as follows:

"The expectation of the AHC [Adelaide Hebrew Community] has always been, since our moving to Glenside in 1988, that Block 101 [the subject land] would be offered to us. We have sent several correspondences to Mr Scott attesting to this claim made over several years to all governments in power. Despite our long-standing interest, the land was sold to others without any consultation with us. The Board of the Adelaide Hebrew Congregation feels strongly that we have been treated unjustly, both morally and administratively."

59. I suspect that the appellant's sense of injustice may be based, in part, on a perception that the decision to sell the subject land to the Harrow Trust had been influenced to some extent by Mr Byass, who, as well as being a trustee of the Harrow Trust, is a senior officer of the Department of Industry and Trade. However, nothing was put to me in evidence which would support such a perception.

60. The second exhibit, Exhibit I, comprised a circular, apparently issued to members of the Adelaide Hebrew Community during the course of the hearing, entitled: "Update on Court Appeal." The circular sets out three reasons for the appeal being pursued:

1. "....the location of such a facility [the subject proposal] is incompatible with our centre on the basis that it will wedge in the synagogue and school between 2 negative facilities, leaving us and especially Massada College with a poor image, thus putting at risk future enrolments."

2. ".... the land has been the subject of extended negotiations with the government ever since we moved to Glenside. We feel that we have been unfairly dealt with by them. Our actions have so far delayed the development for two years. This is in itself a justification of our position. That aspect is being fought on a different front."

3. "....most importantly, we believe that the location of this facility next to a kindergarten, primary school and synagogue, poses a risk to our children."

61. In evidence, Mr Rich freely admitted that the Adelaide Hebrew Congregation saw the subject land as affording the opportunity for an extension of its existing activities and that it had had an expectation for some years that the land eventually would be offered to it.

62. Mr Henry submitted that for the Court to find, pursuant to Section 17(4)(a)(ii), that proceedings had been initiated or prosecuted "for the purpose of delay or obstruction or for some other improper purpose", it was not necessary for it to be satisfied that the proceedings were founded solely on one or more of the above purposes, but merely to find that a substantial motivating purpose for the proceedings fell within Subsection 4(a)(ii). Were that not the case, argued Mr Henry, that subsection would never have application, as it was always easy, in proceedings of this kind, to raise general planning issues to shore up a case founded primarily on an intention to delay or obstruct or other improper purpose.

63. Further, said Mr Henry, the use of the word "appear" in Section 17 left it open to the Court to draw whatever inferences were open to it in determining the motivating influences on the proceedings in question. The evidence before the Court in this matter, Mr Henry argued, led to the irresistible inference that the appellant, in instituting the appeal, was motivated substantially by a desire to enhance or maintain its chances of obtaining the land for itself. In support of this argument, Mr Henry referred to a number of considerations:

(a) the original objection to the proposal made by the appellant made no reference to the issue of child safety, the sole issue on which it called evidence in the course of the hearing;

(b) the notice of appeal lodged by the appellant did not refer to the issue of child safety, making only general references to conflict with the Development Plan;

(c) no planning, traffic or noise evidence was called by the appellant, despite issues of this nature being referred to in further and better particulars of its case provided at the direction of the Court;

(d) the prime witness for the appellant, Professor Briggs, was not approached until 7 January 2002, well after the institution of the appeal and well after the matter had been set down for hearing;

(e) exhibits G and I, and the evidence of Mr Rich, all attested to the appellant's sense of injustice at being denied the subject land and its continuing desire to obtain it.

64. In Mr Henry's submission, the motive of obtaining the subject land and the tactic of delaying the proposed development to enhance the appellant's chances of doing so constituted "improper purposes".

65. Mr Manos, for the appellant, referred to Exhibit A2, which was a copy of a letter of objection, on behalf of the appellant, submitted to the Council in July 2001 in relation to an earlier application by the second respondent for essentially the same development, which application was subsequently withdrawn. In that letter the issue of child safety was raised indicating, in Mr Manos' submission, that the issue was not one which the appellant had conjured up shortly before the hearing, and in the absence of substantive evidence on traffic, noise and other planning issues. The appellant's concern regarding the safety of children attending Massada College was the principal motivation behind the appeal, a concern substantiated, in his submission, by the evidence of Professor Briggs.

66. It would be a foolhardy appellant indeed who did not ensure that some form of planning argument was raised in the course of an appeal pursuant to the Development Act. Were that to suffice to preclude a finding that proceedings had been instituted for the purpose of delay or obstruction, or some other improper purpose, in terms of Subsection 4(a)(ii) of the Environment, Resources and Development Court Act 1993, that subsection would have little, if any work to do. Few appeals are likely to be based on a single motive, and I agree with the submission of Mr Henry that subsection 17(4)(a)(ii) would apply in circumstances where the Court is satisfied that a substantial motivating purpose comes within its scope.

67. Having regard to all the evidence, but, in particular, that of Mr Rich and Exhibits G and I, I have concluded that, on the balance of probabilities, a substantial motivating purpose for these proceedings, albeit not the sole purpose, was the appellant's desire to delay or prevent the proposed development proceeding, in order to keep alive the possibility of obtaining the subject land for its own purposes, that desire being based on a perception that it had been treated unjustly by the government when the land was made available to the second respondent. Such a purpose, in my view, falls squarely within the scope of Subsection 17(4)(a)(ii).

68. Having so concluded, what is the appropriate course to take in this instance? On my reading of it, Subsection 17(4) appears to be designed primarily to empower the Court to dismiss or determine proceedings at an early stage, when it can be demonstrated that that subsection applies. Subsection 4(a), in particular, affords the opportunity for an application to be made at the commencement of proceedings as a preliminary point, which application, if upheld, would result in dismissal and determination of the proceedings without evidence on the planning merits of the proposal the subject of those proceedings having been heard.

69. In this instance the application was made in the course of the second respondent's closing address, and following extensive evidence on a range of planning issues. In the course of that evidence a number of minor modifications to the proposal and recommended conditions of approval were suggested by Mr Burns, the planning witness called by the second respondent.

70. Although I have concluded that, in the terms used by Subsection 17(4)(a)(ii), a substantial, although not the sole motivating purpose for these proceedings, was an intention on the part of the appellant to delay, obstruct or prevent the proposed development proceeding for the improper purpose of keeping alive the potential for the subject land to be used for the appellant's own purposes, Subsection 17(4), on my reading, affords the Court discretion as to whether to dismiss or determine proceedings to which that subsection applies. Were I to do so at this stage, the opportunity to vary the proposal and the conditions of consent in the manner suggested by Mr Burns would be removed.

71. Accordingly, although I have found that Subsection 17(4)(a)(ii) has application, I have decided that, at this stage of the proceedings, it would be inappropriate to dismiss the appeal on that basis, having regard to the desirability of hearing the parties on conditions.

Conclusion

72. Having considered all the evidence, the relevant provisions of the Development Plan, and what I saw on the view, I have concluded that the proposal is in general conformity with the relevant provisions of the Development Plan and that, subject to the minor amendments and conditions recommended in evidence by Mr Burns, it warrants provisional development plan consent.

73. Having so concluded, I have decided that this appeal should be allowed only to the extent necessary to afford the parties the opportunity to discuss, and address me on, those amendments and conditions.

74. Having intimated my decision to the parties, I heard counsel on the question of conditions.

75. Mr Manos, for the appellant, invited the second respondent to reverse the entire footprint of the proposed development, so as to relocate the driveway and entrance some distance away from the driveway and entrance to the synagogue, community centre and school, and tendered a drawing indicating how this could be done.

76. Mr Henry, for the second respondent, advised that the latter was unwilling to alter the proposal in that way, and there is nothing in my conclusions to suggest that such a measure is necessary.

77. The conditions finally arrived at essentially adopt those conditions recommended in his statement of evidence by Mr Burns save where the amended proposal plans (Exhibit A) have already incorporated amendments foreshadowed by those conditions, together with several others designed to secure compliance with undertakings explicitly or implicitly contained in the documentation accompanying the second respondent's application to the Council.

78. Mr Manos and Mr Henry also addressed me on the conclusions set out in my intimation.

79. Mr Henry, noting that the views I expressed in my intimation had not, as yet, passed into a formal order of the Court, submitted that, notwithstanding that my primary decision would entail some variations to the approval granted by the Council, any such variations derived from evidence brought by the second respondent and would result in minor but worthwhile amendments to the proposal plans. Inasmuch as there was nothing, in the submissions and evidence put forward by the appellant, which necessitated any substantive change to what had been approved by the Council, it would still be appropriate for me to make an order under Subsection 17(4) (a) (ii).

80. Mr Henry acknowledged that, inasmuch as there were to be variations (albeit minor) to what was approved by Council, and notwithstanding that those variations derived solely from the evidence brought by the second respondent, it was not open to me to dismiss this appeal pursuant to Subsection 17(4) (a) (ii). Having regard to the ordinary meaning of "determine", however, he submitted that the Court could determine the appeal on the basis that it was motivated by an improper purpose, thereby invoking also the provisions of Subsection 17 (4a) , which is in the following terms:

"(4a) If the Court takes action under Subsection (4), than the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case."

81. Mr Manos submitted that the Court should not make an order pursuant to Subsection 17(4) (a) (ii), on several grounds:

(a) the Court had accepted that the nature of the evidence brought by the appellant was relevant to a planning assessment of the subject proposal, and, notwithstanding the fact that that evidence had not persuaded the Court to uphold the appeal, it would be inappropriate now to determine the appeal on the basis that Section 17(4) (a) (ii) had been made out, and to award costs against the appellant; and

(b) the test upon which I based my conclusion that Subsection 17(4) (a) (ii) had application to this matter was the incorrect test. Section 17(4) was directed towards abuse of process, and there was a long line of authorities, the principal of there being the decision of the High Court in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, which established the appropriate test for determining when an action constituted an abuse of process. The circumstances of this matter did not satisfy that test. Having regard to the decision of the Full Court in Cavanagh-Lang v O'Callaghan and Ors 2000 SASC 187, it was still open to me to reconsider that conclusion.

82. Cavanagh-Lang is authority for the proposition that a judgment remains open to reconsideration and review until such time as it is sealed and entered. I accept the submission, made by Mr Manos, that it is, at this time, open to me to alter my finding that Subsection 17(4) (a) (ii) has application to the circumstances of this case.

83. With reference to the first of Mr Manos' submissions, I reiterate the view I expressed at paragraph 66 of this judgment, that the raising of a relevant planning consideration does not, of itself, preclude a finding that proceedings have been instituted for an improper purpose, and that Section 17(4) (a) (ii) "would apply in circumstances where the Court is satisfied that a substantial motivating purpose comes within its scope."

84. With reference to the second, it is recognised that this Court has a power inhering in it to stay proceedings which are an abuse of process (see DAC v Macag Holdings Pty Ltd [2001] SASC 189; 80 SASR 104). It inheres in every Court. Thus, while I acknowledge that "improper purpose" is an element of "abuse of process", and therefore, if proceedings are commenced in a court with the intention of obtaining a result which is not within the scope of the remedies available in that kind of proceedings, the proceedings will have been commenced for an improper purpose, amounting to an abuse of process (see Williams v Spautz), the fact that Parliament has specifically empowered the Court in relation to proceedings which have been instituted or prosecuted for an improper purpose, suggests that a different test applies. It follows that I do not accept Mr Manos' submissions as to the incorrectness of the test I have applied with respect to "improper purpose".

85. I turn now to Mr Henry's submission that I should now determine this appeal on the basis that it was motivated by an improper purpose, and award costs against the appellant.

86. Read together, the provisions of Subsection 17(4) appear to be directed primarily towards circumstances in which proceedings should be terminated at an early stage, rather than being allowed to run their course. In this matter, however, Mr Henry's application, pursuant to Subsection 17(4) (a) (ii), was made in the course of his final address. I am not suggesting that application should or could have been made at the commencement of the hearing, as much of the evidence on which it was based emerged as the case proceeded. However, coming at the time it did, it placed the Court in a position where it was ready to consider both the merits of the proposal and the Subsection 17(4) (a) (ii) application contemporaneously. In those circumstances, and having regard to the need for conditions of consent to be the subject of submissions by the parties, I considered it inappropriate to dismiss or determine the proceedings at that point. Is it appropriate now to do so? After much reflection I have decided that it is not, for several reasons:

(a) the intention of Subsection 17 (4) (a) (ii) is to protect the beneficiary of a consent against the continuance of appeal proceedings which have been instituted predominantly to delay or obstruct that beneficiary, or for some other improper purpose, that is, a purpose other than that for which the Court process is intended. The underlying rationale must be that it would be unfair to put the beneficiary to the expense, delay and inconvenience that would result from the continuation through to conclusion, of the hearing of an appeal that had been instituted for an improper purpose. On the basis of that interpretation, I do not think it is open to me, at the conclusion of these proceedings, to base a decision in favour of the second respondent wholly or partly on any finding that the appellant's case was founded, in part, on an improper purpose;

(b) the conditions ultimately agreed between the parties, albeit deriving primarily from the evidence of a witness called by the second respondent, vary the consent issued by the Council. They do so as a direct consequence of these proceedings having been instituted, and would not have been imposed had the original approval stood. To the extent that the appeal has resulted in variations to the original consent, it is not, in my view, appropriate to determine these proceedings wholly against the appellant, as would be required were I to apply Subsection 17(4) (a) (ii).

87. It follows that an order for costs will not be made against the appellant.

88. The order of the Court is that this appeal is allowed only to the extent necessary to vary the consent (including the attached conditions) issued by the Council on 13 November 2001 in respect of Development Number 180/847/01/C3, which consent shall now read as follows:

89. Provisional development plan consent is granted for the subject proposed development, being for a single storey residential flat building containing twelve units (semi-independent living units) at 15 Flemington Street, Glenside (Development Application No. 180/847/01/C3) subject to the following conditions:

(1) Other than as varied by these conditions, the development shall be carried out in all respects in accordance with the amended proposal plans comprising Exhibit A in these proceedings, and with the details set out at pages 2 - 6 inclusive in the Copy Documents comprising Exhibit R1 in these proceedings, subject to the following conditions:

(2) residents accommodated in the facility shall meet the criteria for intellectual disability adopted by the SA Intellectual Disability Services Council or its successor from time to time;

(3) the facility shall at all times be licensed under the Supported Residential Facilities Act 1992 or any successor to that Act;

(4) a comprehensive landscaping scheme shall be prepared and approved by the Council, and implemented prior to commencement of the use hereby approved, or at such later time as may be approved in writing by the Council. The plan shall detail the location and type of all trees, shrubs and ground covers to be planted, and the method for watering all landscaped spaces;

(5) the copse of English Elm root suckers within a 3.0m wide strip of land adjacent to Flemington Street shall be temporarily retained until such time as landscaping on the development site has been established and has flourished for a period of not less than two years;

(6) the development hereby approved shall not be occupied and used unless and until a separate allotment with access to Flemington Street is created over the PIRSA testing pit, with associated rights-of-way being registered over portion of this allotment to provide free and unrestricted access to the five visitor parking spaces set aside to the immediate north of the proposed building, via the driveway adjacent to the western boundary fence.