Case law update: Significant judgments relating to recent joinder applications

The ERD Court has recently delivered two judgments in relation to joinder applications made for refused category 2 development applications under the Development Act 1993. While the two cases differ in facts and outcome, they serve as a timely reminder of the relevant factors considered when determining whether to join an applicant to proceedings, particularly given the limited rights of third parties under the Planning, Development & Infrastructure Act 2016.

Approach to applications

In both cases, the leading authority of Pitt v Environment Resources and Development Court (1995) 66 SASR 274 was applied in determining how the Court should exercise its discretion when considering a joinder application. This first involves considering the nature of the interest of the applicants for joinder and then determining whether the interests of justice are served in granting the joinder.

The following matters were determined as relevant to the exercise of the Court’s discretion:

1. The nature and strength of the interest of the applicant for joinder (special interest);
2. The contribution which the applicant for joinder is likely to be able to make to a resolution of the issues before the Court;
3. Whether the interest and the material to be advanced by the applicant for joinder will be adequately dealt with by the existing parties;
4. The impact upon the proceedings of the joinder and whether it would unduly prolong the appeal;
5. The prior involvement of the interested parties in the development application;
6. The interests of the parties before it as a matter of right; and
7. The public interest in the prompt efficient dispatch of proceedings.

21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4

These proceedings concerned a proposed development at Glenelg by the applicant, 21-25 South Esplanade Pty Ltd. The original proposal was for a thirteen-storey residential building, comprising of 93 apartments which was refused by SCAP.

Following the refusal, South Esplanade appealed and submitted a revised development proposal, consisting of a ten-storey building containing 73 apartments. SCAP indicated that it would settle the matter by accepting the revised proposal.

Each of the six applicants for joinder owned properties which abutted or were adjacent to the proposed development, including the City of Holdfast Bay which owned property across the road. During the application the joinder applicants were each notified of the proposed development and made representations to SCAP opposing the proposal. Following the commencement of South Esplanade’s appeal, the applicants for joinder applied to the Court to be joined as parties to the proceedings.

South Esplanade opposed the joinder applications, submitting that to join the applicants as parties to the proceedings would jeopardise the settlement that had been reached with SCAP and that this would be not in the interests of justice.

The Court held that while the settlement between South Esplanade and SCAP was a relevant factor in determining the joinder applications, the settlement did not operate as a bar to joinder, as to do so would ignore the interests of the applicants for joinder and the broader community.

The Court stated that an adjacent land owner and occupier who seeks to be joined in proceedings will almost always have a direct or material interest in the proposed development. Such an interest arises if an order could be made on appeal that prejudicially and directly affects their interests. The Court was satisfied that each joinder applicant had a special and genuine interest in the decision under appeal.

Each applicant for joinder had prior involvement in the development application through making initial representations to SCAP, and a further willingness to participate in the appeal, indicating thoroughly prepared cases and the capacity to call expert evidence in relation to the revised development. The Court held it would benefit from the receipt of such evidence and submissions and that the interests of the applicants for joinder would not be adequately addressed by the existing parties given the proposed settlement.

While the Court held that the joining of the applicants would have a substantial impact on the proceedings and the settlement between the existing parties, it could not be in the interests of justice to deny the interested parties in circumstances where the legislation envisages the joinder of parties to appeals against category 2 development refusals.

With the exception of the Council, the Court determined that all of the applicants for joinder should be permitted to be joined as parties to the proceedings.

South Esplanade submitted that there was no evidence that the Council had resolved to make the application for joinder or had delegated the power to make such authorisations to one of its officers. As such, the Court held that it was not satisfied the Council was authorised to make the application and adjourned the matter for further consideration, giving the Council the opportunity to ratify the joinder application.

Similar principles will be applied to joinder applications in appeals against refusals of notifiable performance assessed development.

Optus Mobile Pty Ltd v City of Prospect [2022] SAERDC 3

These proceedings concerned the proposed development of a 30 metre telecommunications facility submitted by Optus Mobile Pty Ltd that was initially refused by the City of Prospect. Mr Milburn, as the owner of the property immediately abutting the subject land, made a representation opposing the development.

The Council refused the application stating that insufficient information was provided to demonstrate the appropriate consideration of alternative sites. Optus appealed and subsequently provided additional information which satisfied the Council that the subject land was the most suitable site and it proposed to accept the compromise and settle the appeal by consent orders.

On the same day that the Council accepted the compromise, Mr Milburn filed a joinder application. Mr Milburn stated that the proposal would be an eyesore and was not compliant with the Council’s Development Plan, suggesting that an alternative site was available but did not identify its location.

He submitted that his status as a neighbour demonstrated sufficient interest to warrant joinder and that the proposed development would have a significant impact on his plans for the future redevelopment of his land. In support of his case, Mr Milburn retained the services of a town planner and intended to give evidence himself and be legally represented.

Optus and the Council strongly opposed the application for joinder, submitting that the joinder was the difference between the matter progressing to a hearing or not and that the interests of justice weighed heavily upon not joining Mr Milburn as a party. They further submitted that for Mr Milburn to be in a position to assist the Court he would need to call evidence to his case, noting that with the exception of town planning evidence, there was no other expert evidence proposed in respect to any of the matters raised, as Mr Milburn suggested any technical matters could be worked out in later proceedings post joinder.

The Court acknowledged that as an adjoining property owner Mr Milburn had a special interest in the proceedings. However, the fact that he was contemplating the redevelopment of his site did not assist in determining the question of interest as no plans had been provided, and this submission would not assist the Court in considering the appropriateness or the merits of a telecommunications facility on the subject land.

The Court explained that a telecommunications facility was identified as critical infrastructure and therefore changed the balance of weight applied to provisions of the Council’s Development Plan. The Court acknowledged that while Mr Milburn may suffer a loss of amenity, the interests of the broader community reliant on the telecommunication facility carried significant consideration.

The Court held that while Mr Milburn had a special interest in the proceedings, the case that he proposed to bring was both unclear and largely unsubstantiated and would do little to assist the Court in the proper resolution of the matter. As such, the joinder application was refused.

The refusal of the joinder application has since been appealed to the Supreme Court.

Take Home Message

The above judgments demonstrate the Court’s consideration and application of the relevant principles established in Pitt. Of note, a proposed settlement between existing parties does not mean a joinder application will be refused, but does carry with it relevance in determining whether it is in the interests of justice to allow the joining of additional parties.

Further, it is evident that adjoining property owners and occupiers will almost always have a special interest in notifiable development proceedings, but applicants for joinder must be able to assist the Court in resolving the matter by demonstrating a substantiated case and the ability to present expert evidence.

Whilst these applications were determined under the Development Act, the principles remain relevant as we expect joinder arguments will occur in a very similar manner in appeals under the PDI Act for notifiable performance assessed development that a relevant authority has refused.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au, Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au or Alice Tonkin on +61 8 8217 1372 or atonkin@normans.com.au.