City of Enfield v Development Assessment Commission

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby,Hayne JJ,Gaudron J
• Judgment Date: 10 February 2000
• Neutral Citation: 2000-0210 HCA C,[2000] HCA 5
• Court: High Court
• Docket Number: A37/1998
• Date: 10 February 2000

Corporation of the City of Enfield

Appellant

and

Development Assessment Commission & Anor

Respondents

[2000] HCA 5

Gleeson CJ, Gaudron, Gummow, Kirby AND Hayne JJ

A37/1998

HIGH COURT OF AUSTRALIA

Corporation of the City of Enfield v Development Assessment Commission

Administrative law — Judicial review of administrative discretion — Jurisdictional facts — Consent of statutory authority to provisional development plan — Consent prohibited if development ‘non-complying’ — Classification a jurisdictional fact — Whether statutory authority exceeded power — Whether weight to be accorded to opinion of statutory authority upon judicial review — Whether court restricted to evidence before statutory authority.

Courts and judges — Jurisdiction — Equity — Public law — Restraint of apprehended breach of law — Error with respect to jurisdictional fact.

Administrative law — Remedies — Error with respect to jurisdictional fact — Availability of prerogative writs and equitable remedies.

Words and phrases — ‘Jurisdictional fact’ — ‘special industry’ — ‘non-complying development’.

Development Act 1993 (SA), ss 32, 33, 35(3), 38, 44, 108.

Development Regulations (SA), regs 16, 17, Sched 1.

Representation:

A J Besanko QC with G K Feary for the appellant (instructed by Piper Alderman)

No appearance for the first respondent

D F Jackson QC with B R M Hayes QC for the second respondent (instructed by Johnson Lawyers)

ORDER

1. Appeal allowed.

2. Set aside Orders 2 and 3 of the orders made by the Full Court of the Supreme Court of South Australia on 25 July 1997.

3. Set aside Order 4 of the orders made by the Full Court on 25 July 1997 in so far as it deals with the payment of costs by the appellant to the second respondent.

4. Remit the matter to the Full Court of the Supreme Court of South Australia for the determination of the remaining grounds of appeal to that Court.

5. Second respondent to pay the costs of the appellant in this Court and any costs of the first respondent in this Court.

6. Costs of the proceedings before Debelle J in the Supreme Court of South Australia and in the Full Court to abide the outcome of the appeal to the Full Court, and to be determined by that Court.

1 Gleeson CJ, Gummow, Kirby AND Hayne JJ. This is an appeal from the Full Court of the Supreme Court of South Australia (Doyle CJ, Lander and Bleby JJ) 1, which allowed an appeal from a decision of Debelle J 2. The appeal to this Court raises issues respecting the grant of injunctive and declaratory relief to restrain conduct which is alleged to contravene prohibitions imposed by the statute which regulates planning and development in South Australia.

2 The second respondent, Collex Waste Management Services Pty Ltd (‘Collex’) applied pursuant to the Development Act 1993 (SA) (‘the Act’) to the first respondent, the Development Assessment Commission (‘the Commission’), for a Provisional Development Plan to alter and add to an existing liquid waste treatment plant on its land so that it might treat some additional kinds of liquid waste. The land is situated within the local government area of the appellant, the Corporation of the City of Enfield (‘Enfield’). The Commission was not represented at the hearing in this Court and will abide the outcome, save as to costs.

The Act

3 Part 4 of the Act (ss 32–56) is headed ‘DEVELOPMENT CONTROL’. Section 32 is the first provision in Div 1 of Pt 4 (ss 32–45), which is headed ‘GENERAL CONTROL’. Subject to the Act, s 32 forbids the undertaking of any development unless the development is an approved development. The term ‘development’ is defined in s 4 in terms which include ‘building work’ and ‘a change in the use of land’. In addition to the general prohibition imposed by s 32, s 44 prescribes various offences. One is the undertaking of development contrary to Div 1 (s 44(1)). Another is the undertaking of development contrary to a development authorisation under Div 1 (s 44(2)).

4 Section 33(1) provides that a development is an approved development ‘if, and only if’ the ‘relevant authority’ has assessed that development against, and granted consent in respect of, each of various matters in so far as they are relevant to the particular development. These matters are listed in pars (a)-(f) of s 33(1). Paragraph (a), which is material here, requires assessment of the proposed development against the provisions of the appropriate Development Plan and identifies this assessment process by the phrase ‘provisional development plan consent’. The Commission was the ‘relevant authority’ in question. This followed from the operation of s 34 of the Act, reg 38 of the

Development Regulations made by the Governor under the power conferred by s 108 of the Act (‘the Regulations’) and Item 2 of Sched 10 thereof.

5 The Commission also was obliged to comply with reg 16(1) of the Regulations. This states:

‘If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.’ (emphasis added)

It follows that, before carrying out the assessment, the Commission was required to ‘determine the nature of the development, and proceed to deal with the application according to that determination’.

The ‘special industry’ criterion

6 If under the terms of the existing Development Plan the proposed development was for ‘special industry’ 3, it would be prohibited by that Development Plan and it would be a ‘ non-complying’ development for the

purposes of the Act 4. The consequence would be that the Commission was required by s 35(3) not to grant a provisional development plan consent unless the concurrences specified in s 35(3) were given. Section 35(3) states:

‘A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless–

• (a) where the relevant authority is the Development Assessment Commission — the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;

• (b) in any other case — the Development Assessment Commission concurs in the granting of the consent.’

Enfield's case is that the proposed Collex development attracted par (a) of s 35(3).

7 The land upon which the proposed development by Collex was to take place was within a ‘General Industry Zone’ under the existing Development Plan. This had the consequence that, if (as Enfield contended) the development was for ‘special industry’ and therefore was a ‘ non-complying’ development, there were attracted the requirements with respect to public notice and consultation specified in s 38 of the Act for a ‘Category 3 development’. Section 38(5) states:

‘Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to–

• (a) the persons referred to in subsection (4); and

• (b) any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected

  to a significant degree by the development if it were to proceed; and

• (c) the public generally.’

The persons referred to in s 38(4) are the owners or occupiers of each piece of adjacent land and any other members of a ‘prescribed class’.

8 Persons to whom, by force of s 38(12), there is a requirement for the giving of notice of a decision in respect of a Category 3 development (those who, after notice of an application for consent has been given, have made representations in writing to the relevant authority under s 38(7) in relation to the granting or refusal of consent) have the right conferred by s 86(1)(b) to appeal against the decision to the Environment, Resources and Development Court (‘the Environment Court’). On the other hand, the applicant for consent in general has no right of appeal against a refusal of consent or concurrence, or against the imposition of a condition attached to a consent in respect of a ‘ non-complying’ development. This is the effect of s 35(4) of the Act.

Determination by the Commission

9 On 12 September 1995, the Commission, acting under reg 16(1), determined that the proposed development was ‘general industry’ within the definition contained in the Regulations and that, for the purposes of public notification, it was a Category 2 development. The proposed development was not classified as ‘special industry’. The consequence was that the proposed development was not a ‘ non-complying’ development. This meant that s 35(3)(a) of the Act did not require the Commission to refuse consent unless Enfield concurred in it. On 13 November 1995, the Commission granted to Collex a provisional development plan consent to undertake the development and to use its land for the purpose of a liquid waste treatment plant. It imposed 22 conditions on the grant of consent.

10 The Commission's treatment of the development as ‘general industry’ rather than as a ‘ non-complying’ development had a further consequence. Whilst notice of the application had to be given to owners or occupiers of adjacent land, notice to the public generally was not required. This is because s 38(4) merely obliges the giving of notice of a Category 2 development to a limited class. The differences in the regimes for the giving of notice and in those respecting appeals to the Environment Court emphasise the significance which the statute attaches to the classification of a proposal as one for a ‘ non-complying’ development.

11 Enfield maintained its assertion that the development was ‘special industry’ within the definitions contained in the Regulations so that the...