HALL v DEVELOPMENT ASSESSMENT COMMISSION & ORS

The decision granting provisional development plan consent had been made by the Development Assessment Commission ("the Commission"). The decision granting development approval had been made by the City of Burnside ("the Council"). However, the Council was not a party to the plaintiff's application for judicial review. I adjourned the proceedings to enable the plaintiffs to apply to join the Council.

The hearing resumed on 5 April 2001. The plaintiffs had applied to join the Council. The Council consented to the application but on condition that it not be liable for costs. It was not appropriate to accede to the Council's conditions. The Council was joined as a party. I then heard argument as to costs. I then made the following orders:

"1 That the City of Burnside be joined as a party to this action.

2 An order in the nature of a declaration that the development application 180/393/00/DC lodged by the second defendant with the City of Burnside is for a category 3 development.

3 An order in the nature of a declaration that the relevant planning authority was the City of Burnside and not the second defendant.

4 An order quashing the provisional development plan consent issued by the first defendant to the second defendant in respect of development application 180/393/00/DC.

5 An order quashing the development approval issued by the City of Burnside in respect of development application 180/393/00/DC.

6 That the second defendant pay the plaintiffs' costs of and incidental to this appeal as taxed or agreed."

My reasons for the orders as to costs are stated in Hall v Development Assessment Commission (No 2) [2001] SASC 181.

Before the order had been perfected, the solicitors for City Apartments made an application that the matter be listed for further submissions as to the terms of the order. That application was heard on 18 April. Mr Besanko QC appeared for City Apartments. He pointed to the fact that the effect of the judgment was that the Council would be considering and determining City Apartments' application for provisional development plan consent. He submitted that, as the Council had reported to the Commission recommending that the application be refused, the Council had publicly stated its position in respect of the application. That, he said, gave rise to a reasonable apprehension that the Council had prejudged the matter and might not bring an impartial mind to its consideration of the application of City Apartments. The matter should, he submitted, be heard and determined by the Commission.

There is an obvious difficulty with Mr Besanko's submission. I will deal with it in a moment. The relevant test to be applied for determining whether a decision-maker should be disqualified because of prejudgment is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question to be decided: Johnson v Johnson (2000) 74 ALJR 138 at para 11.

The difficulty with Mr Besanko's submission is that both the Council and the Commission have made decisions concerning City Apartments' application for provisional development plan consent. The Council had recommended to the Commission that development consent be refused. The Commission decided to grant development consent. Thus, a reasonable apprehension of prejudgment may exist if either the Council or the Commission is to consider and determine the application.

This is therefore an instance where the principle of necessity arises: R v City of Whyalla; ex parte Kittel (1979) 2 SASR 386. There is no alternative decision-maker. The effect of s 34(1)(a) of the Development Act 1993 is that the Council is the relevant planning authority subject to the exceptions lists in s 34(2). None of those exceptions apply. Because of the Commission's decision to grant provisional development plan consent, the Council should not make a request to the Minister to refer the matter to the Commission under s 34(2)(b)(iii).

A further reason for this conclusion is that the decision of the Council will not be the final word on the matter and is subject to appeal. For the reasons expressed in the judgment delivered on 28 March, the application by City Apartments is for a Category 3 development. Thus, both City Apartments and the plaintiffs, as well as any other person who makes representations to the Council, will be at liberty to appeal to the Environment, Resources and Development Court against the Council's decision: s 38 of the Development Act. The capacity to appeal provides both a safeguard and an opportunity for a full hearing on the merits of the proposed development.

For these reasons, the application of City Apartments must be dismissed.