Lightfoot v District Council of Lower Eyre Peninsula [2005] SAERDC 7 (4 February 2005)

Last Updated: 9 February 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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LIGHTFOOT v DISTRICT COUNCIL OF LOWER EYRE PENINSULA

Judgment of Her Honour Judge Cole (ex tempore)

4 February 2005

LOCAL GOVERNMENT - TOWN PLANNING

Application for joinder by third parties - factors relevant to exercise of discretion to permit joinder - application refused.

Development Act 1993; Water Resources Act 1997; Environment, Resources & Development Court Act 1993, referred to.

Pitt and Others v The Environment Resources and Development Court and Others (1995) 66 SASR 274, applied.

LIGHTFOOT v DISTRICT COUNCIL OF LOWER EYRE PENINSULA
[2005] SAERDC 7

THE COURT DELIVERED THE FOLLOWING EXTEMPORE JUDGMENT:

1	This is an application for joinder by Mr Mueller and Ms Manthorpe in relation to an application by Dennis Lightfoot to establish an olive grove on land within the area of the District Council of Lower Eyre Peninsula. The primary parties to the appeal, Mr Lightfoot and the District Council, have indicated that the matter will settle if it remains simply between them.
2	Mr Mueller, who made a representation in relation to the matter, has applied to be joined as a party to the proceedings presumably with a view to taking it to a full hearing.
3	The application was processed as a Category 2 kind of representation which would have had the consequence, had the District Council approved it, that no third party rights of appeal would have come into existence. That does not end the matter though. There is a Supreme Court decision in Pitt and Others v The Environment Resources and Development Court and Others (1995) 66 SASR 274 which makes it clear that Category 2 representors can be entitled to joinder if certain prerequisites are made out.
4	Mr Mueller has made full submissions in relation to his application and provided the Court with quite a lot of documentation. It is clear from the submissions of all parties that there is no planning issue to be tried in relation to this application. That is, no-one is arguing that the application is contrary to the relevant provision of the Development Plan. That must have considerable weight in this decision.
5	It is also clear that Mr Mueller objects primarily on the basis of the use of natural resources, water use and the potential for feral olives to pollute the surrounding countryside.
6	Concerning water use, Mr Lightfoot has a water licence under the Water Resources Act 1997 and is regulated under that Act for future use of water. So, to a certain extent, that area is regulated by means other than a development application. The same thing applies to the potential use of recycled water.
7	In relation to Mr Mueller’s fear that the grove may become unproductive in the future and need to be removed, the Council has already sorted that problem out by means of a draft condition which it intends to impose if the matter is compromised.
8	That leaves the question of feral olives, which is related to a number of processes and is particularly within the control of the Southern Eyre Animal and Plant Control Board which has legislation to back it up. Mr Mueller has some reservations about the efficacy of the Memorandum of Understanding which the applicant has entered into, but there are other measures to control feral plants which that board has at its disposal.
9	In short, all of the areas of Mr Mueller’s concern are regulated by other pieces of legislation. There are no outstanding concerns under the Development Act.
10	To the extent that it can, it would appear that the Council has sought to impose conditions relating to Mr Mueller’s concerns. For those reasons I find that the prerequisites for joinder in the Pitt case have not been made out and the application is refused. That is not to say that Mr Mueller has not raised some valuable points and has achieved some measure of recognition of those points in the consent, so he can rest content that his concerns have been taken into account.
11	Mr Mueller was representing Ms Manthorpe in addition to making submissions on his own behalf. I take it that the argument he advanced encompassed the grounds of Ms Manthorpe’s application for joinder. Her application is dismissed for the same reason as his.