South Australian Environment, Resources and Development Court finds in respect of the new planning regime that "misconduct" warranting an award of costs does not include conduct that is open to a party in the provisions of the statute

In brief

The case of McGregor & Anor v Clare and Gilbert Valleys Council & Anor [2021] SAERDC 6 concerned an application for costs to the Environment, Resources and Development Court of South Australia (Court) premised on an allegation that the second respondent (Respondent), who was the holder of a development plan consent (Consent) granted under the Development Act 1993 (SA) (DA Act) by the Clare and Gilbert Valleys Council (Council), had engaged in "misconduct" within the meaning of section 29(6a) of the Environment, Resources and Development Court Act 1993 (SA) (ERD Court Act). 

Subject to section 29(6b) of the ERD Court Act, which states that "no order for costs is to be made… unless the Court considers such an order to be necessary in the interests of justice", section 29(6a) of the ERD Court Act allows the Court to make an order for costs against a party in favour of any other party to proceedings, where the Court considers the first party to have engaged in misconduct. 

The Applicants' alleged that the Respondent's conduct in proceedings, which sought a review of the categorisation of the development the subject of the Consent and an appeal against the grant of the Consent (Planning Appeal), suggested that the Respondent sought to delay the decisions of the Court until the Respondent had considered its position under the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act), which had repealed the DA Act.

The Court had regard to the nature of the Planning Appeal and the intention of the Parliament in creating the PDI Act. The Court took a liberal approach to the construction of the words of the provisions of the relevant legislation and applied the ordinary dictionary meaning of "improper conduct or wrong behaviour" to "misconduct" under section 29(6a) of the ERD Court Act. 

The Court relevantly held the following and dismissed the application for costs: 

• The DA Act and PDI Act both allow an applicant to amend, vary, or bring multiple development applications. 

• Seeking to retain or obtain a development approval and pursuing legal rights in respect of a development approval is a proper purpose. 

• The Court is inclined to adjourn proceedings: 

  • where it is consistent with the achievement of just outcomes; 

  • where parties to a proceeding are attempting to achieve a settlement; and 

  • to enable an amended, varied, or fresh development application to be made. 

• The interlocutory applications made and adjournments sought in the Planning Appeal were legally open to the Respondent, and the Respondent was transparent about its consideration of making a fresh development application under the PDI Act. 

• The Respondent's decision to ask the Court to quash the Consent in order to make a fresh development application represents the intention of the Parliament in respect of the future of planning in South Australia. 

Factual matrix and parties' positions 

The Consent related to an integrated depot facility used for earthmoving, quarrying, and transport activities located at Stanley Flat, South Australia.  

Prior to the Planning Appeal trial, the Court quashed the Consent as was requested by the Respondent for the Respondent to pursue a fresh development application under the PDI Act.

The Applicants relevantly submitted the following in respect of the Planning Appeal to support its allegation that the Respondent improperly acted to delay the decision of the Court: 

• A court-directed mediation was unsuccessful. 

• An adjournment was made for the Respondent to consider its position under the PDI Act. 

• The Respondent made in March 2020 interlocutory applications seeking to dismiss the proceedings as an abuse of process or to obtain a summary judgment, which the Court declined to hear until the date of the trial. 

• The Respondent made an unsuccessful application to adjourn the trial.

• The Respondent had sought the Court to quash the Consent the subject of the proceedings, approximately one-month prior to the trial.

Pursuing a legitimate legal interest does not amount to "misconduct" under section 29(6a) of the ERD Court Act 

The Court's jurisdiction as a creature of statute is limited to that conferred under the ERD Court Act or another Act (at [10] and section 7(1) of the ERD Court Act). Where construing legislation which confers jurisdiction, the Court noted that a liberal approach must be taken and the ordinary meaning of words applied to the provisions of the statute (at [12]).

The Court examined the words of the DA Act and the ERD Court Act and held that both items of legislation envisaged and sought to facilitate the settlement of matters before the Court, including during the course of proceedings, where it was in the interests of justice.

The Court had regard to the Respondent's transparency in the Planning Appeal of its intention to make a fresh development application under the PDI Act, and the legitimacy of seeking to retain or obtain a development approval and to pursue legal rights in that respect. 

The Court held that it was open to the Respondent to make the commercial decision to ask the Court to quash the Consent to pursue a development application under the PDI Act, as was contemplated by the DA Act and the Parliament's intention in creating the PDI Act. 

Conclusion

In light of the Court's construction of the relevant legislation, and the pursuit by the Respondent of legitimate interests in respect of the Consent which were communicated to the Court and the parties, the Court held that the Respondent did not engage in "misconduct" within the meaning of section 29(6a) of the ERD Court Act and dismissed the application for costs.