Hall & Anor v City Apartments Pty Ltd & Anor [2005] HCATrans 596 (11 August 2005)

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Hall & Anor v City Apartments Pty Ltd & Anor [2005] HCATrans 596 (11 August 2005)

Last Updated: 26 August 2005

[2005] HCATrans 596

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A62 of 2004

B e t w e e n -

GRANT HALL AND JILL HALL

Applicants

and

CITY APARTMENTS PTY LTD

First Respondent

CITY OF BURNSIDE

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 12.16 PM

Copyright in the High Court of Australia

MR B.R.M. HAYES, QC: If the Court pleases, I appear with MR G. MANOS for the applicant. (instructed by Manos & Associates)

MR M.J. RODER: If the Court please, I appear for the respondent. (instructed by Jamie Botten & Associates)

CALLINAN J: Yes, Mr Hayes.

MR HAYES: If the Court pleases. There is an application before the Court to adjourn the hearing of this application for special leave. I am not sure how familiar the Court is with the circumstances behind that. Can I briefly explain to you the - - -

CALLINAN J: It is your application, is it?

MR HAYES: Yes. The application has come about as a result of what occurred after the application for special leave was filed. The consent, which is the subject of this application for special leave which was confirmed by the Full Court, subsequently lapsed. An application was taken out by the applicants for a declaration that that consent had lapsed under the provisions of the Development Act.

That went for hearing before Justice Debelle and his Honour held that the consent had lapsed and that whilst the consent had lapsed it was still open to the applicant, the developer, to apply to extend the consent. That decision was appealed to the Full Court, and all of this occurred after the application for special leave. That appeal was heard I think last week, and the Full Court has reserved its decision on that issue. There was also a cross-appeal in relation to whether or not the applicants were able to extend that consent. In the meantime I can tell you from the Bar table that the developer applied to the Council pursuant to that information of Justice Debelle that the Council was able to extend if they chose to do so - applied to the Council to extend the approval and that has been refused by the Council, and of course the developer now has its rights to appeal that decision.

So the current state of affairs is that on one view there is no consent which founds the basis of this application for special leave but if the Full Court was to overturn Justice Debelle’s decision, then of course there will be a consent which will found the basis for this application for special leave; hence the application to the Court to adjourn the hearing of this application for special leave pending the outcome of the Full Court’s decision on this point. That application was opposed by my friend and, as I understand it, has therefore been listed today before this Court. So I am in the Court’s hands in relation to that.

CALLINAN J: What do you say about that, Mr Roder?

MR RODER: Your Honour, I am instructed to oppose the adjournment. The subject matter of this appeal relates to a development application which was made in 2002. There has been numerous pieces of litigations between the parties. The current situation is that we have a consent, but according to the judgment of Justice Debelle the period for which it was operative expired whilst all these challenges were being made to our consent. Now, that is a matter before the Full Court.

The other aspect of Justice Debelle’s decision is that we may apply to extend that period. We have been knocked back by the Council, but I would expect very shortly a notice of appeal will be filed against that and then that will go to the Environment Court. There are further rights of appeal. Even if we lost in the Full Court, those questions about the extension of this consent may go on for potentially years, particularly given the history of all of this litigation. We say that we should not have to embark on a drawn-out examination on whether to extend the period for which the consent operates when the very existence of that consent is under challenge in this special leave application, and we say we should not have to go through all of that and then, if we get an answer in the affirmative, come back here and be met with an argument that we should never have got the consent in the first place, and the whole thing is going to have to go back to the Environment Court to start again.

We also say that there really are no proper grounds advanced in the application for special leave, and we all here now ready to proceed, and that there is no apparent saving to anyone in time and expense in not proceeding.

CALLINAN J: Yes, we propose to hear the application.

MR HAYES: If the Court pleases. The language the subject of this application is in the Hills Face Zone. Your Honours will have seen from the submissions that the application involves the erection of a single storey dwelling on an elevated site on a spur of the Mount Lofty Ranges.

The Hills Face Zone, if the Court pleases, has been the subject of special attention by the planning authorities in this State and indeed that is common in other parts where the - - -

CALLINAN J: What do you say is the error in the judgment of the Full Court?

MR HAYES: Can I put it in this way. There are three issues which this case gives rise to. The importance of the bushfire provisions in the Hills Face Zone are recognised by the development plan and by the court. Despite the importance of the bushfire risk in the Hills Face Zone - and that was identified by the CFS as very high - the court at first instance at a very early stage of the proceedings intimated to the parties – can I take you to page 45 of the application book – that they were:

unanimously of the view that the evidence concerning the bushfire risk is not going to be decisive in this matter, given the provisions of the development plan, so that might be something that you might like to consider today as well.

That came about because Mr Menadue, who was the CFS representative, was unable to be called at the time at which his evidence was due. There was some discussion which took place, and then the court came out and gave that firm intimation, that, “Look, this issue is not going to be decisive.” Now, they had not heard from Mr Menadue. All they had was his statement of evidence, and his statement of evidence identified the area as a high bushfire risk and that it would be better to minimise the bushfire risk by locating the building lower down the site. That is the first issue.

HEYDON J: But was any application made to the tribunal to disqualify itself because of that pre-judgment?

MR HAYES: No application was made, no. From the point - - -

HEYDON J: Is that not the end of that point?

MR HAYES: Well, from the point of view of the applicants, that did not seem to be a conclusion which was contrary to its case because Mr Menadue’s evidence, which the court had, was saying, “This is a high bushfire risk area and it is preferable to relocate the house lower down the slope.” Now, in that circumstance the Council and the applicants, who were arguing that it was a high bushfire area, gets an intimation from the court, “We’ve had a look at it. It’s not going to be decisive in this matter.” They were reasonably, in our respectful submission, able to take that as being in their favour. They were surprised when the decision then came down subsequently that the court regarded the landscaping plan, et cetera, which had been put in, as being sufficient to meet the concerns of Mr Menadue, from whom they had not heard.

Now, that is the first issue, but it must be taken in the context of two other issues. The landscaping plan, which was admitted by the court, was an amendment which contained a significantly greater number of plantings than that which went before the Council and that which was considered by Mr Menadue when he prepared his evidence. Now, we say, with respect, the legislation requires an amendment of that kind, particularly in the context where the court itself had said that the landscaping in this case was so extensive that it formed an element of the proposal in its own right, and that is at page 42 at paragraph 23. The court makes a finding there that – it says:

Very often, a landscaping plan is subordinate to the plan for the dwelling. In this matter, the scale of planting is such that the landscaping of the site is an element of the proposal in its own right. This is not a matter in which the function of the landscaping is to hide the buildings. In our assessment, the landscaping plan, as a substantial component of the proposed development, will go a very significant way towards re-establishing the natural character of the area on the site.”

Now, that is said in the context of a high bushfire risk area where they had not heard from the CFS, and this is in an area where the natural character under the development plan is sought to be not only maintained but enhanced. What we say is the Full Court was wrong in saying, “Well, that amendment was just an ordinary amendment because it was still a house, some excavation and some landscaping”, but in the context of a high bushfire risk area, that is a very significant amendment, In the context of legislation which requires such an amendment to go back to the normal process of public scrutiny, this did not even go back to the CFS to have a look at in the context of their report which they had previously done.

Now, your Honours, this raises, in our respectful submission, errors which are significant errors in the way in which the Full Court dealt with them. They said the variation, for example, was no more than a simple variation which did not change the nature of the development. That overlooked the specific finding that landscaping in this particular case was a significant element in its own right of the proposal. Now, if that remains, if that is the law, then there can be any variation of a fairly major kind to develop an application without going through the process of scrutiny which the legislation requires.

That process and that scheme of legislation is not peculiar to South Australia.....amendment. We say, with respect, that the Full Court has erred. This gives rise to issues of principle which justify the intervention of this Court. The ERD Court needs to have some guidance in relation to what we say is the pre-judging of the case by telling the parties, “We’re not going to see bushfire risk as being decisive, so we basically don’t have to hear from the CFS.” That intimation dissuaded the Council and the applicants from calling oral evidence in support of its case. By permitting the landscaping plan, which included many more trees than had previously been proposed, without any reference to the CFS, but it is the context of legislation which requires a variation which changes the nature of the proposal to go through the process again, but this only came out at the very end of the ERD Court hearing.

By failing to give effect to the detailed provisions of the Hills Face Zone, which speak in terms of maintaining the natural character in the context of high bushfire risk and an extensively changed landscaping plan, and ultimately – and this is important from this Court’s point of view – if I can take you to page 8 of the decision of the court at first instance. Giving no reasons of any kind in terms of its finding, at page 8 under “Bushfire Protection”, all the court said was:

Several letters from the Country Fire Service (“CFS”) . . . were tendered. We are satisfied that the proposed development is sufficiently in compliance with the above quoted provisions with respect to bushfire safety to be acceptable. If a condition of approval is imposed with respect to the species of plants to be planted close to the dwelling, by reference to their mature height, we are satisfied that the concerns of Mr Menadue of the CFS can be met.

Now, that is the extent of the reasons which they provide for what is a significant issue.

HEYDON J: Was a point taken about this in the Full Court

MR HAYES: Yes.

HEYDON J: And where does the Full Court deal with that point?

MR HAYES: Well, at page 41 the Full Court identifies the reasons of the ERD Court, but there is not any real discussion about this issue other than at page 46. The court refers, after dealing with the intimation given at paragraph 38 on page 45, at paragraph 41 on page 46:

The ERD Court had Mr Menadue’s statements from the oust of the hearing. Those statements were lacking in detail, although it is apparent that Mr Menadue favoured the relocation to a lower site, with a reduction in bushfire risk. That was a matter for the ERD Court to consider. But Mr Menadue’s statements did not, understandably, grapple with the practicality of an alternative site. More significantly, his statements did not quantify the extent of the bushfire risk - - -

HEYDON J: I do not think your present point was taken before the court because ground 9 of the notice of appeal is the only ground dealing with paragraph 28 of the primary judgement, and that does not make a complaint about the lack of reasons.

MR HAYES: Sorry, your Honour?

HEYDON J: Page 34, paragraph 9 of the notice of appeal to the Full Court complains about paragraph 28 which is the one you were just complaining about for a deficiency of reasons. That is not the point taken in ground 9.

MR HAYES: My recollection was that it was argued in the Full Court.

HEYDON J: It does not seem to have made an impact on the Full Court’s mind.

MR HAYES: I am reasonably clear. I think my recollection was that the issue was argued on many of those grounds. The argument in the Full Court did not always proceed along the grounds set out in the notice of appeal.

Your Honours, what we invite this Court to do is to look at that judgment in the context of those issues which are common to many of the specialist courts or tribunals dealing with these sort of issues, to see whether it is – we say it justifies intervention because the court was wrong to give that intimation so early in the piece. It was wrong to permit a landscaping plan, albeit – and I have to acknowledge that, as the Full Court acknowledged, there was no objection taken to that at the time, but - - -

CALLINAN J: Thank you, Mr Hayes. I think your time has expired. There is no need for us to hear you, Mr Roder.

The decision in this case at first instance depended upon the weighing of essentially factual matters by a specialist court with respect to which the Full Court detected no error sufficient to justify a reversal of that decision. We do not think that the Full Court was wrong in so concluding. The application must be dismissed therefore with costs, and we so order.

AT 12.34 PM THE MATTER WAS CONCLUDED