JEFFREY PAYNE In Person via Telephone [2026] SASC 40

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (COMMISSIONER DYER) ERD-23-000050 Appellant: JEFFREY PAYNE In Person via Telephone Respondent: WATTLE RANGE COUNCIL No Attendance Hearing Date/s: 23/03/2026 File No/s: CIV-25-011009 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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. PAYNE v WATTLE RANGE COUNCIL [2026] SASC 40 Judgment of the Honourable Justice B Doyle 31 March 2026 ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS – COSTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - APPEALS AS TO COSTS The applicant was the owner of land in Millicent (‘the Land’) on which was located, amongst other things, a bus, an enclosed trailer, a shipping container and a ‘red shed’ that he had constructed. Wattle Range Council (‘the respondent’) issued an enforcement notice to the applicant pursuant to the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’), requiring the applicant to remove certain items from the Land and to refrain from using the ‘red shed’ as a residence. The applicant commenced proceedings in the Environment, Resources and Development Court (‘ERD Court’) challenging that notice pursuant to s 213 of the PDI Act (‘the s 213 proceedings’). Shortly thereafter, the respondent commenced and was granted permission to serve proceedings pursuant to s 214 of the PDI Act (‘the s 214 proceedings’). Those proceedings sought orders requiring the ‘red shed’ to be demolished and the shipping container, bus and enclosed trailer to be removed. The respondent also sought an order that the applicant cease and refrain from residing on the Land until any residential use was lawfully permitted in an approved dwelling on the Land. Prior to the commencement of the hearing of both proceedings, the ERD Court was advised of a compromise of the substantive issues. The consent orders made closely corresponded to the final relief sought by the respondent by way of its s 214 proceedings and reserved the question of costs. A Commissioner of the ERD Court dismissed the s 213 proceedings and ordered that the applicant pay the respondent’s costs of both sets of proceedings, to be taxed if not agreed. The applicant now challenges those orders on appeal. -- 1 of 7 -- Held, refusing an extension of time to appeal and leave to appeal, and dismissing the appeal: 1. the grounds of appeal do not identify any arguable error of principle, or material misapprehension of the material before the Commissioner, which might warrant intervention on appeal; 2. in those circumstances, there is no utility in granting an extension of time to appeal or permission to appeal, to the extent it is required. Environment, Resources and Development Court Act 1993 (SA) s 30(2); Planning, Development and Infrastructure Act 2016 (SA) ss 213 and 214; Uniform Civil Rules 2020 (SA) r 213.1(c) and (d), r 214.1, referred to. Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood [1999] SASC 327; Ferngrove Pharmaceuticals Pty Ltd v Betterway Health Care International Group Pty Ltd [2025] SASC 153; Northern Territory v Sangare (2019) 256 CLR 164; Palace Gallery Pty Ltd v Liquor and Gambling Commissioner (No 2) (2014) 120 SASR 299; Wattle Range Council v Payne [2025] SAERDC 5, discussed. -- 2 of 7 -- PAYNE v WATTLE RANGE COUNCIL [2026] SASC 40 Single Judge Appeal – Civil 1 B DOYLE JA: The applicant was the owner of land in Millicent (‘the Land’) on which was located, amongst other things, a bus and a ‘red shed’ that he constructed. He received an enforcement notice from Wattle Range Council (‘the respondent’) under the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’) requiring him to remove various items including the bus and an enclosed trailer from the Land and requiring him to refrain from using the ‘red shed’ as a residence. 2 The applicant commenced proceedings in the Environment, Resources and Development Court (‘ERD Court’) in relation to that notice pursuant to s 213 of the PDI Act (‘the s 213 proceedings’). A little while after those proceedings were commenced, the respondent commenced and was granted permission to serve proceedings pursuant to s 214 of the PDI Act (‘the s 214 proceedings’). In those proceedings, the respondent sought orders which required the ‘red shed’ to be demolished, a shipping container to be removed, and the bus and trailer to be removed. The proceedings also sought an order that the applicant cease and refrain from residing on the Land until any residential use was lawfully permitted in an approved dwelling on the Land. 3 The two proceedings travelled together. They were listed for a three day hearing in Mount Gambier commencing Monday 11 September 2023. On the preceding Friday, the ERD Court was advised of a compromise of the substantive issues. At that time, the applicant was represented. 4 The consent orders closely corresponded to the final relief sought by the respondent by way of its s 214 proceedings. In respect of costs, the consent orders provided that ‘costs are reserved’. 5 There were a number of directions hearings scheduled during 2024 which were adjourned to facilitate negotiations about costs. The applicant was represented for several months by a different law firm, but by late 2024, he was self-represented. By the time the ERD Court came to hear submissions about costs and the disposition of the s 213 proceedings, it was common ground that the applicant had sold the Land. Additionally, in early 2025, the respondent withdrew the enforcement notice, on the basis it had no more work to do. The respondent invited the applicant to discontinue the s 213 proceedings, and requested that, if that did not occur, the proceeding be dismissed on the grounds it is otiose. The respondent ultimately sought an order for its costs of both proceedings. 6 In relation to the s 214 proceedings, a Commissioner of the ERD Court reasoned that in circumstances where: (1) the issues in dispute in the s 214 proceedings had become moot by reason of the consent orders and the applicant’s compliance with those orders; (2) the consent orders reflected that the respondent -- 3 of 7 -- [2026] SASC 40 B Doyle J 2 had succeeded in those proceedings; (3) it was reasonable to conclude that the respondent had succeeded because it took the step of instituting the proceedings; (4) the respondent had acted reasonably in bringing and conducting the proceedings; and (5) the respondent had reasonable prospects of succeeding in the matter had it not resolved; it was appropriate to exercise the Court’s discretion with respect to costs by ordering that the applicant pay the respondent’s costs to be taxed if not agreed.1 7 In respect of the s 213 proceedings, the Commissioner reasoned that there was a material overlap between the enforcement notice the subject of those proceedings and the relief sought in the s 214 proceedings. Resolution of the latter rendered consideration of any challenge to the enforcement proceedings pointless. The Commissioner considered it appropriate to dismiss the s 213 proceedings and to order that the applicant pay the respondent’s costs of those proceedings to be taxed if not agreed.2 8 The ERD Court made orders reflecting the Commissioner’s reasons on 7 March 2025. 9 By a notice of appeal filed on 17 September 2025, the applicant seeks to challenge those orders. An extension of time is required.3 At least in respect of the orders concerning costs, permission to appeal is required.4 10 The respondent wishes simply to abide the outcome of the appeal and it requested to be excused from attendance, presumably on the basis that the cost of legal representation in respect of the appeal is considered to be unjustified by reference to the extant costs orders in its favour. In any event, it remains for the Court to consider whether an extension of time should be granted and, if so, whether there is merit in the proposed appeal. 11 The applicant is self-represented on the appeal. Despite the appeal being deferred for a lengthy period at the applicant’s request, no written submissions were filed. The basis for the proposed appeal must be discerned from the content of the applicant’s notice of appeal, as supplemented by his oral submissions on the hearing of the appeal and in a subsequent email he was permitted to provide within two days after the appeal hearing. 12 The applicant appears to contend on appeal that: • the respondent changed its position in relation to his use of the Land as a result of a personal vendetta in some way connected with his ex-partner; and 1 Wattle Range Council v Payne [2025] SAERDC 5 (‘Reasons’) at [46]-[63], [68]. 2 Reasons [64]-[68]. 3 Uniform Civil Rules 2020 (SA) (‘UCRs’), r 214.1. 4 Environment, Resources and Development Court Act 1993 (SA), s 30(2), UCRs r 213.1(1)(c) and (d). -- 4 of 7 -- [2026] SASC 40 B Doyle J 3 • the legal representative acting for the applicant did not inform him or obtain his consent in relation to the consent orders. 13 These are contentions which impute serious misconduct to others. They are made in conclusory terms, making it difficult to understand their true import. They would appear to involve an attack upon the basis for, or making of, the consent orders, but those orders are not in terms challenged by the proposed appeal. Further, these allegations of serious misconduct are not supported by any admissible evidence. 14 Similar assertions were made in submissions before the ERD Court, where reference was also made to the fact that at the time of the consent orders, the applicant was on a lot of medication and that he was incarcerated only a few weeks after that. It appears from the submissions he made to the ERD Court that the applicant’s position was that whilst his lawyer discussed the consent orders with him, he did not fully understand their import. In responding to this contention, the respondent’s representative reminded the Commissioner that the applicant had been copied to the emails relating to the consent orders including one in which the applicant’s then lawyer confirmed that the orders had been discussed and agreed. 15 At the hearing of this appeal, the applicant suggested he was incarcerated at the time the consent orders were made. When it was pointed out to him by the Court that this differed from what he told the Commissioner, he frankly conceded that he had difficulty recalling the sequence of events. 16 The applicant has not adduced evidence on appeal that would provide a reasonably arguable basis for going behind the consent orders at this late stage. Accordingly, contentions which go to the merits of the consent orders do not avail the applicant on appeal. 17 Otherwise, the applicant makes contentions: • to the effect that when the applicant purchased the Land he was led to believe that the Land could be used for residential purposes; • that the two proceedings had become confused or confusing, with it being unclear to the applicant from listings which of the matters was listed; • that in dealing with the s 214 proceedings, the s 213 proceedings were overlooked; and • that the applicant’s difficulties in accessing legal assistance and disabilities have led to unfairness in the conduct of the proceedings below. 18 In circumstances where the consent orders in the s 214 proceedings are not challenged, and where the enforcement notice was withdrawn as moot, it is difficult to see a basis upon which the dismissal of the s 214 proceedings could successfully be challenged. -- 5 of 7 -- [2026] SASC 40 B Doyle J 4 19 In respect of the costs orders, the applicant has not identified any arguable error of principle, or material misapprehension of the material before the Commissioner, which might warrant intervention on appeal in what were discretionary decisions about a matter of practice and procedure.5 20 The authorities urge caution in making any order other than that the parties bear their own costs where the merits of the proceedings have not been adjudicated upon by the Court.6 That is particularly the case where a proceeding has simply been discontinued (without any decision about the merits) or where there has been a compromise which suggests that the parties perceived the underlying merits to be mixed or finely balanced. However, the discretion is broad, and in a case where the relief granted by consent very closely reflects the relief sought by one party, and where it is not suggested that the relief was consented to only because the merits were rendered irrelevant by some subsequent development, I do not consider it to be reasonably arguable that the discretion with respect to costs miscarried. 21 In his notice of appeal, the applicant contends that: Some of these issues [were] my own confusion to some degree but, I believe the Court took advantage of me and my physical and mental disabilities and my lack of legal knowledge, even the lack of Lawyers that deal with this of field of Law and proving almost impossible to get sound advice on what action to take. 22 Complaints of this kind based on belief do not expose a basis in fact or law for a reasonable argument that the challenged orders were erroneous. Insofar as the applicant points to his financial difficulties and lack of means, these are grounds for sympathy, and may lead the respondent to take a concessionary approach to enforcement, but they do not vitiate the costs orders made.7 23 Care is required in summarily dismissing appeals by self-represented litigants who may have difficulty articulating the basis for their complaint. However, there are limits, informed by considerations of proportionality, finality and impartiality, to the lengths to which an appellate court can or should go in attempting to unpack unfocused grievances expressed in conclusory terms with a view to exploring whether, if some more fundamental attack were made on presently unchallenged orders, it might possibly succeed. 24 Having briefly identified for the applicant some of the difficulties that I considered his application faced, and the need for him to satisfy the Court both that the appeal is arguable and that an extension of time should be granted, I allowed 5 See, eg, Ferngrove Pharmaceuticals Pty Ltd v Betterway Health Care International Group Pty Ltd [2025] SASC 153 at [4]-[13]. 6 See, eg, Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood [1999] SASC 327 at [14]-[22] (Debelle J), Palace Gallery Pty Ltd v Liquor and Gambling Commissioner (No 2) (2014) 120 SASR 299 at [11] (Kourakis CJ, Blue and Stanley J). 7 cf. Northern Territory v Sangare (2019) 265 CLR 164 at [32] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). -- 6 of 7 -- [2026] SASC 40 B Doyle J 5 the applicant a further opportunity to make any submissions he wished to make by email. 25 The applicant took up this opportunity. However, the contents of the applicant’s email dated 25 March 2026 do not materially advance his position. In that email, the applicant said that: • he is on a disability pension and that his difficulties include depression and some memory issues; • he has had trouble with locals in the Millicent area and has been harassed by police, Council members and a sheriff; and • the proceedings have taken a big toll on him. 26 Whilst these explanations for the delay in filing the appeal are not presented in a satisfactory form, and the nexus between these difficulties and the delay is not clearly addressed, in circumstances where the respondent has not sought to participate in the appeal, and has not made a submission of prejudice, I would not be inclined to decide this matter simply on the basis that an inadequate explanation has been given. It is better to consider the merits of the proposed appeal. 27 Here, the consent orders made were made with the apparent authority of the parties in September 2023. No proper attempt has been made to set those orders aside. The consent orders were a critical foundation for the orders dismissing the s 213 proceedings, and for awarding costs to the respondent in respect of each proceeding. No reasonably arguable basis for challenging the dismissal of the s 213 proceedings or the costs orders has been identified. It follows there would be no utility in granting an extension of time. There is also no point in granting permission, to the extent it is required. 28 I therefore refuse an extension of time within which to appeal. To the extent required, I refuse permission to appeal. I dismiss the appeal. In circumstances where the respondent has not participated, there will be no order as to costs. -- 7 of 7 --