Jolly v District Council of Yankalilla (No 2) [2006] SAERDC 39 (2 June 2006)

Last Updated: 7 June 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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JOLLY v DISTRICT COUNCIL OF YANKALILLA (No 2)

[2006] SAERDC 39

Judgment of Her Honour Judge Cole

2 June 2006

LOCAL GOVERNMENT - TOWN PLANNING

Appeal lodged in this court was previously refused - appeal of that decision heard by Full Supreme Court where the appeal was allowed and matter remitted to this Court for reconsideration in accordance with that decision - should matter be dealt with by this Court making a series of declarations and then hearing and determining the matter on the planning merits or should matter be remitted to the Council for assessment on the planning merits - found that the assessment of development applications more appropriately performed by the local authority as the primary decision maker - matter remitted to the Council for further processing.
Development Act 1993, referred to.
Jolly v District Court of Yankalilla [2006] SASC 53, considered.

JOLLY v DISTRICT COUNCIL OF YANKALILLA (No 2)
[2006] SAERDC 39


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This matter has been remitted to this Court by the Full Supreme Court.

2

The matter concerns a shack at Lady Bay. The facts as they emerged from the evidence put before this Court at first instance are set out in my previous judgment. In summary, Mr Jolly obtained development approval to undertake building works upon the shack (over which he holds a lease or licence), including the building of a second storey. He then proceeded to perform building works upon the shack, but not in accordance with the development approval he had obtained. The Council became aware of the unauthorised building works, and issued an enforcement notice. Eventually, this led to Mr Jolly making a fresh development application, the purpose of which was to obtain development approval for the works he was undertaking. At all relevant times, a land management agreement was noted on the title to the land occupied by the shack. Clause 3.2(d) of the Land Management Agreement provided:-

Any Development relating to the Land shall only allow or create buildings of a single storey.

3

The parties to the Land Management Agreement are Lady Bay Shores Pty Ltd, which is the owner of the land, and the District Council of Yankalilla. Both of those entities were opposed to the development proposed by Mr Jolly. The effect of the evidence was that there was no prospect that the Council would waive compliance with clause 3.2(d) of the Land Management Agreement. On that basis, the Council proceeded to refuse the application without categorising it, without forming a view as to whether any comments should be sought from State Government agencies and without undertaking a planning assessment of the proposal. The Council refused the application on the basis that it was hypothetical.

4

This Court at first instance upheld the Council’s decision. The Supreme Court has now quashed this Court’s decision at first instance. His Honour Justice Perry said:-

The Council, in the first instance, and the ERD Court on the appeal to it, should have dealt with the matter on the basis that there was a lawfully erected two-storey shack, with respect to which planning consent was sought for extensions to the second storey. The application fell to be determined by reference to ordinary planning considerations.

5	Mr Tredrea, counsel for Mr Jolly, and Mr Henry, counsel for the Council, have now made submissions regarding what the next step in these proceedings should be. Mr Tredrea wished the ERD Court first to make a series of declarations concerning the manner in which the matter should be treated, and then to hear and determine the matter on the planning merits. Mr Henry asked for the matter to be remitted to the Council to be assessed on the planning merits.
6	The Development Act 1993 creates quite an intricate administrative system for the assessment of development applications. It designates local authorities as the primary decision maker. The role of this Court is (among other things) to hear appeals from the decisions of those primary decision makers. There is no reason for this Court to usurp the primary decision maker’s function. Administrative steps, such as the notification of State agencies, and the public notification of the application (where required) are more appropriately performed by the local authority. The matter will therefore be remitted to the Council for further processing.
7	Mr Tredrea sought a series of declarations which would partially dictate the basis upon which the primary planning authority could process the development application. The Supreme Court has directed that the development application be considered in accordance with its reasons. It is not for me to interpret or add to those reasons. I decline to make the declarations sought.