ERD Court Confirms Limits on Third Party Reviews

The recent decision of Rossi v City of Holdfast Bay Assessment Panel & Anor [2022 SAERDC 18 confirms that under the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act), interested third parties are no longer able to seek review of a relevant authority’s decisions as to whether a proposed development is seriously at variance with the Code.

Nor can they seek review of a decision that amended plans do not require renotification.

Background

On 16 November 2021, DesignTech Studios (DesignTech) applied to the City of Holdfast Bay Assessment Panel (Assessment Panel) for planning consent for renovations and an extension of the upper story of a dwelling on Beach Road Brighton.

Public notification was undertaken as required by the PDI Act, and Mr Rossi, an adjoining property owner, made representations to the Assessment Panel on about 6 December 2022 opposing the development.

On about 3 February 2022, DesignTech lodged amended plans with the Assessment Panel. The Assessment Panel determined that the variations to the plans were not substantial. As a result of this, per regulation 35(3) of the Planning, Development and Infrastructure (General) Regulations 2017 (Regulations), the Assessment Panel was not required to repeat public notification of the proposed development and did not do so.

On 23 February 2022, the Assessment Panel granted planning consent to the proposed development, having assessed it as performance assessed development and determined it not to be seriously at variance with provisions of the Planning and Design Code (Code).

Mr Rossi then commenced an appeal under section 202(1)(g) of the PDI Act, which provides that specified persons ‘may apply to the Court for a review of the matter with respect to the decision under this Act as to the nature of the development under Part 7 Division 2 Subdivision 1, Subdivision 2 or Subdivision 3’.

Issues for Determination

The following jurisdictional issues fell for determination in this matter as preliminaries to Mr Rossi’s appeal:

• does section 202(1)(g) of the PDI Act enable the Environment, Resources and Development Court (ERD Court) to review a decision of the relevant authority that a proposed development is not seriously at variance with the Code under section 107(2)(c) of the PDI Act?
• does section 202(1)(g) of the PDI Act enable the Court to review a decision of a relevant authority under regulation 35(3) of the Regulations that variations to an application (or accompanying information) are not substantial such that the authority does not need to repeat public notification under Division 3 of the PDI Act?

The Decision of the Court

The Court ultimately held that section 202(1)(g) of the PDI Act does not enable the Court to review decisions of either kind.

The Court found that its jurisdiction under s 202(1)(g) of the PDI Act only extends to decisions made under Part 7 Division 2 Subdivision 1, Subdivision 2 or Subdivision 3 (sections 103 – 107 (inclusive)) about the nature of the development.

The Court held that:

• the decision of a relevant authority that a proposed development is not seriously at variance with the Code is not a decision about the nature of the development, which is a separate antecedent question; and
• a decision of a relevant authority under regulation 35(3) of the Regulations that variations to an application (or accompanying information) are not substantial is not a decision made under sections 103 – 107 of the PDI Act, and in any event, is one that requires identifying differences between the lodged plans and not the determination of the nature of the development.

In reaching this view the Court considered, amongst other things, the differing objects of the PDI Act and the repealed Development Act 1993 (SA) (D Act). It also contrasted the drafting of section 202(1)(g) of the PDI Act with its equivalent under the D Act, section 86(1)(f), which allowed appeals of, relevantly, ‘a decision under the Act as to the nature of development, including any decision that is relevant to the operation of section 35’.

The Court found that whereas it was an object of the D Act ‘to provide for appropriate public participation in the planning process and the assessment of development proposals’ ‘the PDI Act has an object to provide for community participation in relation to the initiation and development of planning policies and strategies’. In light of this, the Court also found that the failure to carry over an equivalent to the phrase ‘including any decision that is relevant to the operation of section 35’ from the D Act to the PDI Act evidenced an intention that appeals under section 202(1)(g) have a more limited scope. Ultimately, this led to a conclusion which differed from previous cases decided under the D Act, including Terra Group P/L v City of Port Adelaide Enfield [2015] SAERDC 26 and Bates v City of Holdfast Bay [2017] SAERDC 40.

Take Away Message

As the Court stated, ‘[this construction of section 202(1)(g)] has operational consequences that conform to the underlying objectives of the PDI Act that decisions in relation to the assessment of a development are matters for the relevant authority and third-party appeals are very substantially limited to procedural matters’.

It should be noted that this decision in no way fetters the powers of the Supreme Court to entertain judicial review proceedings in relation to decisions that fall outside the scope of s 202(1)(g) of the PDI Act. However, judicial review proceedings are more costly to institute and can expose parties to an adverse costs order.

For more specific information on any of the material contained in this article, please do not hesitate to contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au.