Macag Holdings P/L v Development Assessment Commission & Ors [2005] SAERDC 6 (8 February 2005)

Last Updated: 10 February 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MACAG HOLDINGS P/L v DEVELOPMENT ASSESSMENT COMMISSION & ORS

Judgment of Her Honour Judge Cole

8 February 2005

LOCAL GOVERNMENT - TOWN PLANNING

Applications for costs by respondents in relation to appeals lodged by developer - notice of discontinuance filed - whether notice of discontinuance effective - Court Rule 4.1(b) considered - whether the applications for costs have been made out - no order as to costs.
Development Act 1993 s 86; Environment, Resources & Development Court Act 1993 s 17 and s 29, referred to.
T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (1993) S4296 , considered.

MACAG HOLDINGS P/L v DEVELOPMENT ASSESSMENT COMMISSION & ORS
[2005] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This judgment deals with applications for costs in relation to four appeals pursuant to s 86 of the Development Act 1993 ("planning appeals"). The four planning appeals relate to different proposals by Macag Holdings Pty Ltd ("the developer") concerning land on Duncan Road, Beaumont. The planning appeals are:-

1) Macag Holdings Pty Ltd v Development Assessment Commission No. 413/2001, which is an appeal from the decision of the Development Assessment Commission ("DAC") in relation to Development Application No. 180/DO69/00. The notice of appeal was filed on 6 April 2001.

2) Macag Holdings Pty Ltd v Development Assessment Commission, City of Burnside, Maxwell Donald Bessell and the Environment Protection Authority ("EPA") No. 81/02 which is an appeal from the decision of DAC in relation to Development Application No. 180/1088/00. The notice of appeal was filed on 29 January 2002.

3) Macag Holdings Pty Ltd v Development Assessment Commission, City of Burnside and Maxwell Donald Bessell No. 238/04 which is an appeal from the decision of the DAC in relation to Development Application No. 180/DO547/03. The notice of appeal was filed on 5 July 2004.

4) Macag Holdings Pty Ltd v Development Assessment Commission, City of Burnside and Maxwell Donald Bessell No. 239/04 which is an appeal from the decision of the DAC in relation to Development Application No. 180/D0562/03. The notice of appeal was filed on 5 July 2004.

2	Mr Bessell seeks costs in each of the above appeals to which he is a party. The Crown Solicitor represented both the DAC and the EPA. The DAC seeks costs in all four appeals. The EPA seeks costs only in relation to expert statements prepared by officers of that agency in appeal No. 81 of 2002.
3	All of the planning appeals have been the subject of numerous directions hearings. The matters have mostly been dealt with together.
4	On 14 September 2004, there was a directions hearing in all four planning appeals. The developer applied to have appeal No. 239 of 2004 listed for hearing, and the other three appeals adjourned. Both Mr Bessell and the DAC objected to the adjournment of those three appeals. Appeal No. 239/04 was listed for hearing for 5 days commencing on 13 December 2004, and the other appeals were adjourned. Other orders were made concerning preparation for the hearing. The preparation for the hearing was the subject of a further directions hearing on 22 October 2004. Mr Manos, counsel for the developer, foreshadowed that he would seek to withdraw appeals No. 81/02 and 413/01 on that occasion. Dr Manetta, counsel for the DAC, foreshadowed a costs application in relation to those appeals to be withdrawn. At a further directions hearing on 29 October 2004, Mr Manos indicated that he would be seeking to withdraw all four appeals because the developer wished to begin a fresh application process with a new plan. Costs applications were foreshadowed by Mr Roder, counsel for Mr Bessell, and Dr Manetta. The hearing dates were vacated.
5	On 2 November 2004, a document entitled "Notice of Discontinuance" was lodged at the Court Registry in relation to each of the planning appeals.

Ability to Withdraw Appeals

6	The right to appeal against a refusal to grant a development authorisation is provided for in s 86 of the Development Act 1993. The Act and the Development Regulations are silent on the question of whether a planning appeal, once commenced, may be discontinued by the appellant.
7	The Environment, Resources and Development Rules 2003 provide, in Rule 4.1(b):-

"4.1 The Court shall have power generally to give effect to the purpose of these Rules and, in particular may:
...

(b) give leave to any party to amend, alter or withdraw any step in the proceedings;"

8	Dr Manetta argued, in effect, that Rule 4.1(b) provides the only process by which a planning appeal can be terminated by the appellant. Dr Manetta pointed to Rule 5A.5.1 of the Rules, which relates only to appeals from the Warden’s Court, by way of contrast. Rule 5A.5.1 provides:-

"5A.5.1 An appellant may at any time file and serve a notice of discontinuance of appeal and upon its being filed the appeal shall be abandoned."

9	In filing a notice of discontinuance, the appellant was not seeking to use Rule 4.1(b). Withdrawal of a "step in the proceedings" is different from discontinuance. The power conferred upon this Court by Rule 4.1(b) does not extend to the termination of a planning appeal (see T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (1993) S4296, unreported delivered 30 November 1993 - Mullighan J at p.5).
10	Mr Hayes QC, counsel for the developer, argued that it must be implicit in the Development Act 1993 that the party who institutes an appeal can discontinue that appeal. I agree. This is not a question relating to the power of this Court, as Dr Manetta’s argument implied, but a question relating to the rights and obligations of the parties to litigation. A party may discontinue its action subject to any limitations upon that process imposed by the applicable Rules. The Rules of this Court do not constrain the discontinuance of a planning appeal. The fact that no procedure for discontinuance is provided for does not alter the fundamental position. Rule 5A.5.1 is purely declaratory in relation to Warden’s Court appeals and does not impliedly constrain appellants in planning appeals. The notice of discontinuance was effective and terminated the planning appeals.
11	Mr Roder argued that, even if the notice of discontinuance was effective, the Court has power to make an order for costs under s 29 of the Environment, Resources and Development Court Act 1993. I agree. Section 29(3) gives certain powers to the Court in relation to costs, which may be exercised "at the conclusion of those proceedings". "At the conclusion of those proceedings" cannot mean that the exercise of the power must be contemporaneous with the conclusion of the proceedings. As a practical matter, it must allow for the conclusion to be a trigger for an application under s 29(3).

Section 17

12	It was submitted that I should exercise the powers conferred by s 17(4)(a) or (c) of the Environment, Resources and Development Court Act.

"17(4) Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on 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;

...

(c) give summary judgment against a party -

(i) who obstructs or unnecessarily delays the proceedings; or

(ii) who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or

(iii) who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court."

13

Mr Roder and Dr Manetta suggested that it could be inferred from the many adjournments of the directions hearings in the four appeals that the appeals had been prosecuted, for at least part of the time, for the purpose of delay or obstruction, or for some other improper purpose. It was suggested that obstruction and unnecessary delay could also be inferred. It is true that an undesirably high level of vacillation on behalf of the developer is evident from the record of adjournments in the planning appeals. It is understandable that the respondents, who have been put to the expense of having counsel appear and, in relation to the most recent listing of the matter, having experts prepare reports, should feel the high level of frustration expressed by their counsel on their behalf. However, I am unable to infer from what is before me that the pre-conditions for an order under s 17(4)(a) or (c) are in existence. The developer’s vacillation, whilst unusual in its extent and duration, may have many explanations beyond the factors set out in s 17(4)(a) and (c). For example, a delay cannot be characterised as "unnecessary" unless the reason for it is known.

14

I therefore decline to make an order under s 17.

Section 29

15	The Environment, Resources and Development Court Act 1993 provides, in s 29(2):-

"29(2) If a party to proceedings before the Court –

(a) applies for an adjournment of the hearing of the proceedings; or

(b) by his or her conduct renders it appropriate or necessary for the Court to adjourn the hearing of the proceedings,

the Court may adjourn the proceedings on such terms as it considers just and may make an order for costs, in accordance with the scale prescribed for the purpose, against the party in favour of any other party to the proceedings."

16	Mr Roder argued that, in the light of the attempted discontinuance of the appeals, only now is it possible to see that all of the previous adjournments were granted in circumstances which justify an order for costs under s 29(2). Again, Mr Roder’s client’s frustration is understandable. However, there is no factual basis upon which I could find that the developer did not sincerely intend to proceed with one or other of the appeals from time to time. There is no evidence, for example, that the developer decided to abandon its proposals months ago but chose to keep stringing the respondents along. I cannot infer those circumstances from the material before me. The rationale for the developer’s conduct of the planning appeals, and the circumstances forming the context for that rationale from time to time are simply not before me.
17	Ordinarily, an application for costs under s 29(2) would be made at the time that the issue of whether the proceedings should be adjourned under that section arises. However, in appropriate circumstances, when the question of costs is not dealt with at the time of the adjournment, it is possible to seek an order for costs after that time.
18	I decline to make an order under s 29(2) of the Environment, Resources and Development Court Act 1993.

Summary and Conclusion

19	A planning appeal can be discontinued by the appellant at any time, and the planning appeals the subject of this judgment were discontinued on 2 November 2004.
20	The power of the Court to award costs in a planning appeal is limited to the power expressly granted in the Environment, Resources and Development Court Act 1993 in s 16 (which is not relevant here), s 17 and s 29. The power in s 29 may be exercised subsequent to the discontinuance of the appeal.
21	The applications on behalf of the DAC, the EPA and Mr Bessell have not been made out. The factual basis for making the requisite findings which would underpin the characterisation of the developer’s conduct of its planning appeals in the manner required for the use of the power provided for in s 17 or s 29 has not been put before me. It does not arise as an irresistible inference from the Court record.
22	I note that an order for costs was made on 27 July 2003. That order stands. I reject the application for further orders for costs.