LEASECORP ALDINGA PTY LTD v CITY OF ONKAPARINGA [2008] SAERDC 69 (10 October 2008)

Last Updated: 15 October 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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In the Matter of AN APPLICATION FOR JOINDER

LEASECORP ALDINGA PTY LTD v CITY OF ONKAPARINGA

[2008] SAERDC 69

Judgment of Commissioner Mosel

10 October 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS

Applications from 13 persons/groups/business to join as parties to a developer appeal - general observations made about the interests of those applicants who live in places and suburbs remote from the subject land - whether each joinder has sufficient interest in the subject matter in the appeal and whether the interests of justice would be served by joinder the main considerations - one party joined - the applications of the remainder declined.

Environment Resources and Development Court Act 1993; Development Act 1993, referred to.

O'Neill & Anor v Kimhi & Ors [2008] SASC 109; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; OneSteel Manufactoring Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Remibisi v City of Salisbury [2008] SAERDC 28, considered.

LEASECORP ALDINGA PTY LTD v CITY OF ONKAPARINGA
[2008] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By Notice of Appeal dated 26 August 2008, Leasecorp Aldinga Pty Ltd appealed against the decision of the City of Onkaparinga (“the Council”) to refuse to grant Development Plan Consent to construct a supermarket and detached specialty shops (together with carparking, landscaping, siteworks, signage, on-site wastewater and stormwater management) on Lots 1, 2 and 3, Section 400, Main South Road, Aldinga (“the subject land”). The notice of the Council’s decision sets out the following as its reasons:
   1. The proposed development in its current format, is inconsistent with the provisions of the Historic Township (Port Willunga/Aldinga) Zone and Aldinga Village Policy Area, and Objective 1 and Principles 1 and 7 under the Council wide provisions for Appearance of Land and Buildings, in regard to the following:
      • Scale of development, size of retail area, extend of carparking and landscaping is inconsistent with the centres policy and intended historic role and character of Aldinga township.
      • Proposed buildings are inconsistent with the scale and form of existing historic buildings in terms of frontage width, height and scale.
   2. The scale of retail development is inappropriate for a township zone (as opposed to a centres zone) having regard to Objectives 1 and 11 under the Council wide provisions for Centres and Shops.
   3. The proposal will create unsatisfactory conditions on adjoining roads contrary to Objectives 4 and 5 and Principles 1, 3 and 9 under the Council wide provisionf for Movement of People and Goods.
2. The following persons/groups/company have applied to be joined as parties to the appeal:

(a) McLaren Vale Grape, Wine & Tourism Association
(b) Friends of Willunga Basin Inc
(c) Sandra Loffler
(d) Jim Hullick
(e) Salvatore Alfio Lemura
(f) John Ackers
(g) Ashford Holdings Aldinga Pty Ltd
(h) Kath Richards & Ray Richards
(i) Elizabeth Sneddon
(j) Kerry Flanagan
(k) Giles Walkley
(l) Stephanie Johnston
(m) Christopher Reid

3. The proposal was processed by the Council as a Category 3 development. Each of the applicants for joinder made a representation in opposition to it. The Copy Documents of the Council which were submitted to the Court for the purposes of the Conference to be held pursuant to s 16 of the Environment Resources and Development Court Act 1993 (“the ERDC Act”) indicate that most, but not all, of the applicants spoke (in person or by representative) to the Council in support of their views.
4. Mr Treadrea appeared for Mr Kerry Flanagan and Ashford Holdings Aldinga Pty Ltd (“Ashford”), Mr Kourteff appeared for Mr Lemura, Mr Akers appeared on his own behalf and Ms Johnston appeared on her own behalf and for the applicants (a), (b), (c), (d), (h), (k) and (m). Ms Johnston’s application associates her with a group known as the Southern Community Coalition.
5. Ms Sneddon failed to attend the hearing. Her application is struck out.
6. The power to join parties to proceedings is provided in s 17 of the ERDC Act. The relevant provisions are in the following terms:

17—Parties
(1) The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).
        (2) A commissioner may not make an order under subsection (1) except—
            (a) on the application of, or with the consent of, the party to be joined; or
            (b) with the concurrence of a Judge.
(3) An order under subsection (1) may be made on an application without notice to any person.
(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;
(b) after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
            (c) give summary judgement 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.

7. As I said the proposal was determined by the Council to be a Category 3 development. On the face of it, the proposal falls within the exemption from the provisions of s 88(2)(c) of the Development Act 1993. Section 88(2)(c) is in the following terms:

88—Powers of Court in determining any matter
...
(2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:
...
(c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant)), determine not to grant the application—
(i) on the ground that the Court is not satisfied that the person has a special interest in the subject-matter of the application; or
(ii) on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or
                  (iii) on any other ground determined to be appropriate by the Court.

8. The proceedings from which the applications for joinder arise is a developer appeal. Whether the provision of s 88(2)(c) might also apply in this case was touched upon on the decision of Debelle J in O’Neill and Anor v Kimhi and Ors [2008] SASC 109:

It is to be noticed that s 88(2)(c) makes provision for joinder where the development application is for a development other than a Category 3 development. It applies, therefore, in the case of both Category 1 and Category 2 developments. A person who has made a representation in opposition to a Category 3 development is entitled to appeal against a decision of a planning authority granting development consent: s 86(1)(b) and s 38(14) of the Development Act. If development consent is refused, the person who made the development application may appeal to the Environment Court pursuant to s 86(1)(a) of the Development Act. In that case, the Environment Court exercises its power under Rule 5.4 of its Rules of Court and gives notice of the appeal to those who made representations and an application may be made to join the person to whom notice is given. Thus, the position of applicants and those who made representations in opposition to a proposed development in respect of Category 3 development is catered for although s 88(2)(c) may also operate in the case of a developer’s appeal. (my emphasis)

9. In addition to the foregoing there have been other decisions which have established the grounds on which it is appropriate to join a party: Pitt v Environment Resources and Development Court (1995) 66 SASR 274 and OneSteel Manufactoring Pty Ltd v Environment Protection Authority (2005) 92 SASR 67. In summary the factors for consideration relevant in these proceedings are these:

(1) the nature and strength of the interests of the applicant in the decision under appeal;

(2) the contribution which the applicant is likely to make to a proper resolution of the planning issues; and

(3) whether the interests of the applicant and the evidence to be lead will be adequately dealt with by the persons already before the Court.

10. In many cases, people who oppose a development seek joinder in a developer’s appeal with different purposes in mind. In some cases, an applicant wants to participate in the conference (s 16 ERDC Act) only or simply be available to lend weight to the Council’s decision. In other cases they want, by some manner, to provide a statement of their opposition. In other cases they desire to lead their own evidence or that of an expert witness. One or more of the applicants for joinder in these proceedings fall into each of these categories.
11. In O’Neill, Debelle J said this about leading evidence:

... it is clear that the ability to call evidence and make submissions is relevant but is not necessarily a basis on which to order joinder (my emphasis)

12. If the criteria in the nature of those set out in s 88(2)(c) also apply to these proceedings – an observation made at para 18 in O’Neill - then the following findings out at paras 17 and 20 in that matter are relevant:

... if the applicant has a special interest in the subject matter of the appeal and is also able to call evidence and make submissions, that is likely to constitute sufficient grounds for joinder.
... as a general rule, an adjoining neighbour will always have a sufficient interest in an application to justify joinder.

13. There are some general observations that are germane to my consideration in respect of the applications for joinder. Firstly, with the exception of Mr Lemura and Mr Flanagan most applicants reside or have their business interests quite some distance from the subject land. Some reside in Aldinga Beach, Willunga and Pt Willunga and by virtue of its title, the association bearing the name Friends of the Willunga Basin Inc. appear to have interests that sweep across a large area of the Council. When these applications and the respective representations to the Council are closely examined it becomes abundantly clear that most wish to agitate exactly the same issues as those identified as reasons for refusal in the Council’s decision notification. They stand in support of the Council’s concerns about the scale of the proposal and the size of the retail component when assessed against the provisions for centres, the associated conflict with the heritage value of the Aldinga township and concerns about the impacts arising from the question of traffic. Secondly, there was nothing put to me that would indicate an intention by the Council to reverse its stance. This was a factor that had a bearing on the decision in O’Neill. To the contrary, at the commencement of the hearing my enquiry of Ms Savva, who appeared for the Council, established that evidence will be led in its case from experts in heritage, planning, traffic and centres/retail hierarchy. On the face of it, any case for joinder on the footing that the Council might accede to a modification of the proposal has no foundation. It intends to lead the appropriate evidence to assist the Court to resolve the subject matter of the appeal. Mr Levinson, for the appellant, without being specific indicated that like evidence will be led in its case.
14. I now turn to the applicants for joinder. I first heard from Mr Ackers. He lives quite some distance from the subject land. His opposition mirrors that of the Council. He holds strong views about the retention of the heritage value of the locality within which the proposal is situated. However, there is nothing in his submissions that would lead me to conclude that his interests would be directly or materially affected if the proposed development was to proceed. Nor did he persuade me that the evidence he would lead would be of any more assistance to the Court in resolving the subject matter of the appeal than that I expect would be led by the Council or the Appellant. Mr Ackers application is rejected.
15. Mr Lemura lives on Old Main South Road opposite the subject land. He opposes the proposed development on the grounds that it would conflict with the heritage values of the locality and because its presence would erode his amenity to the point where emotional and financial hardship would occur. I agree with Mr Levinson that the latter reasons are not for argument in the assessment of the proposed development against the relevant provisions of the Development Plan. On the face of it, Mr Lemura may have a material interest in the outcome of the appeal in light of the proximity of his land to the subject land. However, I do not consider his circumstances sufficient for joinder. Those issues raised by Mr Lemura that are relevant planning considerations (arising mainly from nuisance from traffic movements) are matters well within the scope of the Council’s case. The Court would not be assisted greatly by Mr Lemura’s evidence. His application is rejected.
16. Mr Tredrea appeared for Mr Flanagan and Ashford. The former is described by Mr Tredrea as a neighbour. Apparently Mr Flanagan is the owner of the property situated at 22 Old Coach Road, Aldinga. According to Mr Treadrea his property adjoins the subject land. In his representation to the Council, Mr Flanagan speaks of several concerns; some of which bring into question the design detail of the proposed development. Among the issues raised is the loss of views, landscaping, security and parking. These issues along with others are also raised in his application. According to the Council’s Copy Documents Mr Flanagan spoke of his opposition to the proposed development during the public hearing of representations.
17. In my view, Mr Flanagan has established a sufficient interest to be joined. The construction of a shopping centre on land adjacent to his raises the prospect of there being material impacts to his amenity. That said, I have made the assumption that Mr Flannagan is a neighbour in the conventional sense of the term. The interests of a neighbour in the nature of an “absentee owner” or infrequent occupier of adjoining land might be viewed somewhat differently and thus distinguishable from His Honour’s findings in O’Neill. Some of the amenity impacts to which he refers do not appear to be of specific concern to the Council but might accrue as a consequence of the scale of the development. It is in that sense that Mr Flanagan if joined would not be introducing issues foreign to the subject matter of the proceedings. His case for joinder is reinforced by his intention to call expert planning evidence. Mr Flanagan is joined as a party to the appeal.
18. I now turn to the application by Ashford. I decline to join it as a party. Ashford owns and operates the Aldinga Central Shopping Centre. It is quite some distance from the subject land. Its principal concerns revolve around, if not entirely focussed upon, the economic impacts of the proposed development on its retail and business interests. Couched in planning terms that concern also appears in the Council’s decision notification. This aspect of the Council’s decision bespeaks the role of the local planning authority to ensure adequate compliance with the established policy framework for the orderly distribution of centres throughout its area.
19. I have considered the following question: is it necessary to join Ashford in the interest of justice? I am assisted in resolving this question by the remarks of Commissioner Hodgson in the application by Engel’s Hardware Pty Ltd to be joined in an appeal by Remibisi v City of Salisbury [2008] SAERDC 28:

In common with local authorities elsewhere in the State, the City of Salisbury is enjoined by the Development Act to have regard to the provisions of the Development Plan in assessing applications within its area. No individual trader or property owner could, in my assessment, claim an interest in the regulation of retail development, which would, in any way, equate with that of the Council itself.
To conclude otherwise would be to contemplate the possibility that any trader or landowner potentially affected, to any degree, by proposed new retail development would be able to argue successfully for joinder in any instance in which such development was refused by the Council.
I am far from satisfied that the interests of justice would be served by accepting the argument that a business as far removed from the subject land as that of the applicant for joinder, had sufficient interest in an application by a potential competitor as to warrant joinder in proceedings of this kind.

20. So far as I can see, Ashford’s application may be seen in the same light. Little will be served with joining as a party to the appeal the owner and operator of a shopping centre some 3 kms distance from the subject land. In any event it is evident, from Mr Tredrea’s submission, that it is not its intention to lead evidence from acknowledged experts in retail analysis and related economic impact in support of the subject matter of its principal opposition to the proposed development.
21. Ms Johnston spoke on behalf of several applicants. I have considered at some length the reasons cited for joinder in respect of each applicant, their respective representations and the submissions of Ms Johnston on their behalf. I can only but conclude that they hold passionate views in opposition to the proposed development on grounds similar or identical to the grounds for refusal set out in the Council’s decision notification. I acknowledge that Ms Johnston saw value to the resolution of the planning issues by leading evidence from a particular expert in planning. However passionate their views may be, I am not satisfied that the Court would be assisted in the resolution of the subject matter of the appeal nor the interests of justice served by a person or persons that are well removed from the subject land.
22. I now turn to Ms Johnston’s assertion that the soil on the subject land may not be suitable for proper effluent disposal. According to the grounds for refusal set out in the Council decision notification constraints on the proper disposal of effluent is not an issue in this appeal. I acknowledge that Ms Johnston is not satisfied that the assessment of the proposed development by the Council did not include soil suitability. However, it is necessary in the interests of the prompt dispatch of the subject matter on appeal to avoid the introduction of matters which – other than the assertions of Ms Johnston - have no foundation in the mind of the planning authority. Questions about the technical capabilities of soil in respect of effluent disposal are best answered, if need be, by the appropriate public authorities. Those authorities must be satisfied that the proposed development takes appropriate measures for proper effluent disposal for reasons that go to the protection of the environment and the maintenance of public health standards. If such matters are relevant in the assessment of the proposal against the provisions of the Development Plan, it is for the Council as the local planning authority to pursue the appropriate enquiries. The Council can, at the appropriate time apply to amend its ground of refusal to include the question matter of effluent disposal. In my view it would be necessary to give advance notice to such an intention and give good reason for so doing. For the above reasons the application for joinder by Ms Johnston and the applicants she represented (those identified in para 4) are declined.
23. There will be an order to join Mr Flanagan in the appeal, an order to strike out the application by Ms Sneddon, and an order declining to join all remaining applicants.