The risks in reliance on explanatory materials to the planning regime

Relevant authorities should be cautioned by the recent decision of Town of Gawler Assessment Manager v Brunt [2023] SAERDC 15 in their reliance on explanatory materials to understand the legal requirements of the South Australian planning regime.

In its judgment the Environment, Resources and Development Court (Court) refused to grant an extension of time to proceedings brought by the Assessment Manager seeking orders to quash a deemed planning consent for the division of an allotment. The Assessment Manager’s delay in bringing the proceedings was in part attributed to a mistaken belief that deemed consents were not available for applications for “land division or planning consent and land division”, and identified PlanSA explanatory materials to that effect.

In its judgment, the Court recommended that:

“[a]n urgent review of the guidelines currently on line should be undertaken as they inform the reader a ‘deemed planning consent will not be available for … planning and land division consent and land division consent.”

On 11 October 2023, an updated ‘Respond to Deemed Consent’ guide for relevant authorities was published on PlanSA. That guide advises that:

“[a]ny application to quash the deemed planning consent must be made within 22 business days from the date that the deemed planning consent it taken to have been granted (e.g. 13 August 2020) unless the Court, in its discretion, allows an extension of time.”

We understand that the 22 business-day period reflects what is displayed in the DAP. However, this does not accord with the timeframe prescribed by the Planning, Development and Infrastructure Act 2016 (SA) (Act).

Section 125(7) of the Act provides that:

“[a]n application [to the Court for an order quashing the consent] must be made within 1 month after the deemed planning consent is taken to have been granted, unless the Court, in its discretion, allows an extension of time …”

Pursuant to the Legislation Interpretation Act 2021 (SA) ‘month’ means ‘a period starting at the beginning of any day of one of the calendar months and ending—

• immediately before the beginning of the numerically corresponding day of the next calendar month; or
• if there is no such corresponding day occurring in the next calendar month, at the end of that next calendar month;

Therefore, the relevant business days within a relevant one-month period will vary according to the length of the month and public holidays and weekends which fall within that month.

The difference between ‘1 month’ and ’22 business days’ is seemingly minor, but has potentially significant ramifications for the ability of relevant authorities to apply to the Court for an order quashing a deemed consent.

Take Home Message

A sound understanding of the legal requirements of the planning regime is best obtained by direct reference to the Act and legislative instruments created thereunder. Of course, the simplicity of that statement belies the difficulty of that task, and we recommend that relevant authorities obtain expert advice where necessary.

For more specific information on any of the material contained in this article please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au or Stephan Koefer on +61 8 8217 1368 or skoefer@normans.com.au.