HENDERSON v DAC & ANOR [2009] SAERDC 29 (19 May 2009)

Last Updated: 25 May 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

HENDERSON v DAC & ANOR

[2009] SAERDC 29

Reasons for Decision of Her Honour Judge Trenorden (ex tempore)

19 May 2009

ENVIRONMENT AND PLANNING - BUILDING CONTROL

Applicant lodged an Application for Review pursuant to s 86(1)(f) and s 85(1) and (9) of the Development Act 1993 - Whether applicant falls within class of persons entitled to bring this application under s 86(1)(f) - Whether ERDC has jurisdiction to hear application for enforcement order against planning authority - Application for costs against applicant.

HELD: Both applications dismissed. Application for costs dismissed.

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

Smith v Mt Barker Products P/L Anor [2000] SASC 164, considered.

HENDERSON v DAC & ANOR
[2009] SAERDC 29

THE COURT DELIVERED THE FOLLOWING REASONS FOR DECISION:

1. I have come to the conclusion that there is no jurisdiction in this Court to deal with the application. I might say, by way of preamble, I do understand that applications of the nature that Ms Henderson has sought to make are difficult for a person who is neither legally trained nor legally represented. However, there are various forms of assistance available to make such applications.
2. I also say by way of preamble that I understand the frustration of Ms Henderson in seeking to address what she believes has been an inappropriate decision and inappropriate processing. Nonetheless, this Court is a court of limited jurisdiction. It was created by an Act of Parliament and its jurisdiction is given by other Acts of Parliament and it cannot act outside these or give itself jurisdiction; it cannot go beyond the jurisdiction given to it by Parliament.
3. Having said that, Ms Henderson, whom I shall call the applicant, lodged a pro forma document headed ‘Notice of Appeal’ on 24 April 2009. The reasons for appeal were expressed to be: “breach of the Development Act, failure to carry out statutory requirements to give notice, incorrect categorisation of development as category 1”.
4. The development identified as the subject of the appeal is described in the document called ‘Notice of Appeal’ as ‘The redevelopment of western stands at Adelaide Oval’.
5. The Development Assessment Commission, the first respondents in this matter, granted an approval, as I understand it, on 26 February 2009 to the South Australian Cricket Association for redevelopment of the western grandstands at Adelaide Oval.
6. This appeal or application by the applicant first came before the Court on 12 May 2009 on which occasion the Court adjourned the application to enable Ms Henderson to further investigate her position and to show the Court how it was that she fell within the class of persons entitled to bring an application under s86(1)(f) of the Development Act 1993. That provision gives to a person, who can demonstrate an interest in the matter that is relevant to the determination of an application for a development authorisation, a right to come to this Court for a review of the matter with respect to a decision as to the nature of the development, or a decision under s 38 as to the category of development. However, to demonstrate that interest, a person must be either an owner or occupier of the land constituting the site of the development as proposed, or an owner or occupier of a piece of adjacent land.
7. Now, the Court in effect on 12 May 2009 asked Ms Henderson to show how she fell within the category of owner or occupier of a piece of land adjacent to the site of the development. On 15 May 2009 Ms Henderson filed an affidavit which indicated that she was making an application to this Court under both s 86(1)(f) and s 85(1) and (9) of the Development Act. I read the latter as being an application, in her words, to ‘restrain a breach of the Act in relation to the decision of the Development Assessment Commission on the application by South Australian Cricket Association’.

Application Pursuant to s 86(1)(f)

8. I will deal first with the section of the application purportedly made under s 86(1)(f).
9. Ms Henderson claims to be an owner of land either of the site or of land adjacent to the site by virtue of being, as I understand her application, a beneficial owner of the parklands by virtue of a trust or a kind of trust created by the process by which the parklands were preserved or reserved for the benefit of the citizens or residents of the City of Adelaide.
10. Now, without going through the trail of the Crown Record in relation to the parklands and what transpired, as asserted by Ms Henderson, I have determined that that argument cannot successfully bring Ms Henderson within the category of an owner or occupier of the site of the proposed development or of a piece of land adjacent to the site of the proposed development.
11. My reasons for coming to that conclusion is that even if the parklands were established subject to a trust in the nature of a public charitable trust binding the owner to hold those lands in effect in trust for the use and the enjoyment or the recreational activities of the citizens of the City of Adelaide, that of itself would not give the citizens of Adelaide any beneficial interest in the lands subject to that trust. It would only give the residents of Adelaide or the citizens of the City of Adelaide some kind of interest limited to the ability to use the parklands for the purposes of the trust such as the enjoyment of activities of a recreational nature in the example I have used. Whatever such a trust provided for the citizens and residents of the City of Adelaide, it would not give them any beneficial interest.
12. I don’t see anything in the material that Ms Henderson has provided to suggest anything other than a right of use, such as I have described, and such a right of use cannot amount to ownership, nor can it amount to putting any resident or citizen of Adelaide, such as Ms Henderson, in the category of occupier of those lands or the parklands generally. So I cannot see in any of the material that has been put before me or in the submissions of Ms Henderson this morning, that she comes within the category of a person who has an interest in terms of s 86(1)(f) of the Development Act. It follows that the Court does not have jurisdiction to address the issue as to whether the nature of the development was adequately determined or whether the category of the development was appropriately described or determined. The court, therefore, cannot address further the purported application pursuant to s 86(1)(f).

Application Pursuant to s 85

13. With respect to the purported application under s 85, I note that section provides that: ‘Any person may apply to the Court for an order to remedy or restrain a breach of the Development Act, whether or not any right of that person has or may be impinged as a consequence of the breach of the Act’.
14. There is a form of proceeding set out in the Rules of this Court to be followed for an application pursuant to s 85. Ms Henderson acknowledges she was not aware of that and has not followed that form for the application. That is not necessarily fatal to the proceedings, however there are other factors that are fatal to the purported application.
15. In Smith v Mt Barker Products P/L Anor [2000] SASC 164 the Supreme Court determined that, this Court, in dealing with the applications under s 85, cannot address those applications as if they were applications for judicial review. As part of its reasoning in that judgment, the Court also held that it is not open to an applicant under s 85 of the Development Act to bring proceedings in this Court, against a relevant planning authority to challenge the procedure pursued by the relevant authority in coming to a decision. What is sought in this application is to challenge the decision of the Development Assessment Commission. That course is not open to the applicant.
16. Ms Henderson has also referred to her belief that the development has expanded outside of the existing site. Again, leaving aside the issue of whether a decision or the procedure of the Development Assessment Commission, in relation to the application by the South Australian Cricket Association was appropriate, matters such as this now raised by Ms Henderson concerning the extent of the development, are not something that can be considered by the Court in s 85 proceedings. It may be something that is able to be pursued in another court and, in particular, in the Supreme Court. However it is not something that this Court has jurisdiction to address in a s 85 application. Accordingly, the Court does not, for the reasons that I have given, have jurisdiction to deal with the application insofar as it has been made under s 85 of the Development Act.

Applications Dismissed

17. In conclusion, I dismiss the application or applications purported to have been made pursuant under s 86(1)(f) and s 85 of the Development Act. Those are my reasons.

Costs and s 17 Application

18. I’m not going to grant the application by the Second Respondent for costs. It is inappropriate to consider an application under s 17 of the Environment, Resources and Development Court Act 1993, namely to dismiss or determine any proceedings to be frivolous or vexatious because the Court has already dismissed the proceedings for want of jurisdiction.
19. I think it is important to just recap on the history of these proceedings. As I said earlier, in respect of the application lodged by Ms Henderson on 24 April 2009. The Court listed the matter for directions having regard to the fact that it was not clear in the application on what basis it was brought and what was sought from the Court. All parties were notified there would be a directions hearing on 12 May. At that directions hearing the Court adjourned the matter, having directed: ‘The applicant to provide the Court and the parties with relevant documentation and supporting evidence as to the basis of her application to the Court to enable the Court to determine whether it has jurisdiction to hear the matter.’
20. The Court on that occasion (12 May) went on to list the matter for a one hour argument on jurisdiction, today at 11 am. In the course of the directions hearing, Mr Manos first of all opposed Ms Henderson’s right to appeal and made an application then and there to have the matter struck out for want of jurisdiction.
21. In addition Mr Manos foreshadowed that his client intended to make an additional application or an application pursuant to s 17 of the Environment, Resources and Development Court Act if Ms Henderson did not withdraw her application.
22. So, the first thing was that the Court itself listed the matter for argument and directed Ms Henderson to file further material showing how she brought herself within the relevant class of persons entitled to come to the Court. Mr Manos, indeed, sought to have the application struck out for want of jurisdiction. That is what the Court has now done.
23. Now, Mr Manos, in the interim, made an application pursuant to s 17 to have the matter struck out and that was filed in the Court yesterday.
24. It was my view, and it is the way in which I have proceeded, that I should deal with Ms Henderson’s application, to assess whether the Court had jurisdiction to deal with it, first and foremost. That is what was done. The application was dismissed. Mr Manos’ application then logically falls to be dealt with and there was nothing to dismiss because the application has been dismissed already. It follows that I cannot make any order under s 17.
25. His further application is for costs pursuant to s 85. I decline to make any order and effectively, therefore, dismiss the application for costs.
26. I do so on the basis that it was only apparent that Ms Henderson’s application was in part made under s 85, on Friday last, when a further document was filed in the Court and, I presume, on that same day served on solicitors for the first and second respondents.
27. In addition, the matter was always coming back on today in relation to the jurisdiction question on what was seen to be on 12 May, an application under s 86(1)(f). So, the parties were always coming back today to have that application addressed. I see no basis, therefore, to make any order for costs under s 85. That is my decision.
28. Section 29 of the Environment, Resources and Development Court Act enables the court to adjourn proceedings on such terms as it considers just and may make an order for costs against a party in favour of another party where a party either applies for an adjournment of the hearing of proceedings or by his or her conduct renders it appropriate or necessary for the Court to adjourn the hearing of proceedings.
29. In my view there was no adjournment of the hearing of proceedings on 12 May. On that date there was a directions hearing. It became apparent in that directions hearing that there was a question of jurisdiction, and the applicant was asked to file some further information and at the same time the matter was set down for hearing on jurisdiction today.
30. So, in that sense there was no adjournment of a hearing, although it could be argued there was an adjournment of proceedings. Now, in any event, this argument could not have been had on 12 May because it was a directions hearing and a directions hearing is only listed for 10 minutes maximum.
31. In conclusion, I am of the view that s 29 is not strictly applicable to the situation before the Court and even if the proceedings were adjourned for directions no order for costs should be made against the applicant.
32. The application for costs is dismissed. That concludes the proceedings.