Environment and Planning – New joinder decision in ERD Court

A council has recently been successfully joined to a planning appeal brought against a decision of the State Commission Assessment Panel (SCAP) in Citify Pty Ltd v State Planning Commission [2024] SAERDC 26.

This is one of only a few instances where a council has succeeded in establishing a case for joinder in unrelated proceedings in the Environment, Resources and Development Court (Court).

The full decision is available to read here.

Background

The appeal, brought by Citify Pty Ltd (Appellant), concerns the refusal of planning consent by SCAP for an application to redevelop the site of the Buckingham Arms Hotel in Gilberton (a local heritage place).

The application proposes the construction of new multi-storey buildings, the refurbishment and reuse of the existing hotel building, and the removal of four regulated trees (including two significant trees).

The Town of Walkerville (Council) sought to be joined to the proceedings, which application was opposed by the Appellant. The State Planning Commission (Respondent) did not make any submissions in relation to the Council’s application for joinder.

Joinder considerations

Section 17 of the Environment, Resources and Development Court Act 1993 (ERD Court Act) creates a general power for the Court to grant joinder of non-parties.

The test for granting a non-party joinder to proceedings is well established. In weighing up the merits of an application for joinder, the Court will have regard to:[1]

• the nature and strength of the applicant’s interest in the proceedings (i.e. whether they have a ‘special interest’);
• the contribution which the applicant for joinder is likely to make towards a resolution of the issues in the proceedings;
• whether the interests of the applicant or the material it is likely to contribute are already sufficiently addressed by existing parties to the proceedings;
• the impact that a grant of joinder will have upon the proceedings;
• the interests of the parties already before the proceedings and the public interest in the prompt and efficient dispatch of the proceedings; and
• any factors particular to the proceedings.

The Court noted in this case that applications by local government for joinder are uncommon and in previous cases, it was noted by the Court that ‘there is nothing in the legislative framework [the Development Act 1993] which speaks against the local authority, where not the relevant planning authority, being joined’.[2]

The Court held this could equally apply to these proceedings brought under the Planning, Development and Infrastructure Act 2016. As such, the general test for joinder was applicable.

Case for joinder

Special Interest

The Council argued that the nature and strength of its interest in the matter was sufficient for joinder having particular regard to:

• the impacts the proposed development would have on the Council’s own infrastructure and assets (namely, the adjoining roads); and

• the Council’s role as the local authority administering the locality and impacts the proposed development would have as a result (e.g. waste collection).

Also relevant was the role the Council had played in listing the site of Buckingham Arms Hotel as a local heritage place, and the representations the Council had actively made to the SCAP in relation to the proposal.

The Court held that the Council’s concerns in relation to its infrastructure were not itself enough to meet the special interest test. To that extent the Council’s concerns were speculative and, in the Court’s view, not founded on any specific empirical evidence as to the impact of the proposal. However, the Council’s role as an active representor in relation to the town planning and heritage aspects was enough in itself to satisfy the special interest test.

Contribution to proceedings

The Council submitted that, if joined to the proceedings, it would call expert evidence specifically in relation to town planning, urban design, heritage architecture, and infrastructure issues.

The Appellant opposed the Council’s contribution to those issues, which it held could be adequately addressed by the parties already before the Court. However, the Respondent provided no indication that it would necessarily adduce its own evidence in relation to those specific issues.

On the matter of the heritage issues in particular, the Court held that the Council could provide a contribution, in the form of specialist heritage expert opinion, that would not have been already provided by the parties to the proceedings.

Impact on proceedings and interest of the parties

The Council’s application for joinder was not held to have any meaningful impact on the proceedings.

The Council submitted it would endeavour to coordinate its case with the Respondent to avoid duplication and unnecessarily drawing-out of the proceedings, which the Court accepted.

While the existing parties had been in conference pursuant to section 16 of the ERD Court Act, no compromise or settlement had been put to the Court as at the date of the joinder hearing. The Court considered this was irrelevant in any case.

Considering the above, the Council had satisfied the special interest test and established it was able to contribute to the proceedings in a meaningful way, without significant detriment to the existing parties.

Considerations for future joinder applications

This case provides a useful illustration of the types of matters the Court will consider significant in granting an application for joinder where a local government entity seeks to participate in proceedings.

It is important to note that, in this case, simply making a contribution regarding planning and infrastructure issues was not considered enough to establish the special interest necessary for joinder.

Instead, it was the contribution that could be made regarding local heritage issues in particular – and the Council’s consistent history of making representations regarding those issues – that was given the most weight by the Court in establishing grounds for joinder.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.

[1] These factors were first articulated in Pitt & Ors v Environment, Resources and Development Court & Ors (1995) 66 SASR 274 and have consistently been applied in subsequent joinder decisions.

[2] See Barrio Developments Pty Ltd v Development Assessment Commission [2017] SAERDC 21.