High Court win for Council
Published on 13 April 2022
A High Court of Australia decision (on Tuesday 12 April) removes a key part of a campaign of litigation delaying a start on a nine-storey landmark development for the heart of Unley.
The High Court dismissed an application by the owner of the Unley Shopping Centre, the Duke Group, for leave to appeal to the High Court against a decision of the South Australian Court of Appeal. The Court of Appeal last year dismissed Duke’s appeal against a 2020 decision of the Supreme Court in favour of the City of Unley.
The development of apartments, a supermarket, cinemas, retail, offices and cafes on the western side of Unley Road in and around the current Target site was announced in December 2020.
To be known as Unley Central, it has been delayed by persistent litigation and appeals from the owner of the neighbouring Unley Shopping Centre (Duke Group).
Duke’s multiple court actions blocked Council’s sale of a strategic parcel of land of the development, 166-168 Unley Road, to the Unley Central development consortium.
Yesterday, the High Court removed a key legal blockage. It rejected Duke’s application for leave to appeal the previous rulings that dismissed Duke’s claim that an implied trust prevented Council from selling the land to the Unley Central development consortium.
This means that the decisions of the South Australian courts stand and that Duke is obliged to pay Council’s legal costs for all three court proceedings. The costs are expected to run into many hundreds of thousands of dollars.
One remaining court claim – launched by Duke in November 2020 – seeks a right of way or easement over Council’s land between the Duke carpark and Unley Road and an ongoing right for Duke’s customers to park on Council land at no cost to Duke. It is scheduled to be heard on 17 October 2022.
Duke’s remaining litigation stands in the way of the Unley community’s desire for a reinvigorated Unley city centre and greater choice of living, entertainment, shops and services.
Since it was announced in 2020, there has been strong community support for the project and frustration from residents wanting to know what is holding it up.
Council’s facilitation of the Unley Central project with the sale of 166-168 Unley Road is the result of extensive community consultation in Unley in 2016.
Duke was at that time briefed on Council intentions for its land at 166-168 Unley Road and did not raise any objection. It was not until nine months after consultation closed that it objected and initiated the first of its legal claims and actions.