Common sense prevails! The Full Court of the Supreme Court confirms the time within which the determination of the nature of a development application or its public notice category may be challenged.

11 February 2016

Hoff & Anor v City of Mitcham & Ors [2016] SASCFC 3

Section 86(1)(f) of the Development Act 1993 (“the Act”) enables the owners or occupiers of adjacent land to the site of a proposed development to apply to the ERD Court for a review as to the decision made on the nature of the development and whether it is complying, merit or non-complying and/or a review on the decision as to public notice category.

Section 86(4) of the Act provides that a review must be commenced within two months after the applicant for review receives notice of the decision which they wish to challenge.

This provision causes some difficulty in respect of category 1 developments, where adjacent land owners and occupiers are not notified of a development application.  In such circumstances, the ERD Court had determined that the two month period runs from when the land owner or occupier became aware of the development application (or should have been aware of it.)

In terms of category 2 and 3 development applications, notice of the application has, since section 86(1)(f) first came into effect, been taken to be the point where public notification letters are received so that a review must be commenced within two months from that date.

This approach to section 86(1)(f) reviews was not questioned until recently.

In February 2014 a development application was lodged with the City of Mitcham (“the Council”). The Council subsequently categorised the development as a category 2 form of development and carried out the required public notification process. The public notices described the development as a category 2 form of development. Mr and Mrs Hoff received notification during this process, lodged a representation and subsequently gave oral submissions in support of their representation at the Council’s Development Assessment Panel meeting.

In November 2014 (some 6 months after public notification occurred) the Council granted development plan consent to the application and notified, pursuant to section 38(12) of the Act, those who had made representations, including Mr and Mrs Hoff.

In January 2015 Mr and Mrs Hoff lodged an application in the Environment, Resources and Development Court (“the ERD Court”) for a review of the Council’s decision to treat the development application as a category 2 form of development.

The Council, represented by Kelledy Jones Lawyers, argued that the Mr and Mrs Hoffs’ review was out of time.

Mr and Mrs Hoff argued that the two month period for a review does not commence until the decision as to whether or not to grant development plan consent is made.

The ERD Court dismissed the application for review on the grounds that the application to review the decision as to category had been made out of time.

The Supreme Court appeal

 Mr and Mrs Hoff appealed to the Full Court of the Supreme Court.  The basis for their appeal was that for the purposes of section 86(4) of the Act, no decision is made on an application, until the final decision as to whether or not to grant development plan consent is made.

Mr and Mrs Hoff submitted to the Supreme Court that the Act does not involve the making of administrative decisions.

The Full Court of the Supreme Court confirmed that the Act requires a number of decisions to be made as to the nature of proposed developments for the purposes of determining whether to give a development a planning consent. Some of these administrative decisions include determining whether the proposed development:

• is a complying form of development;
• is a minor variation from a complying development;
• is seriously at variance with the development plan;
• is a non-complying development.

The Supreme Court held that it is plain that the Act establishes a scheme for the determination of development applications and expressly recognises that the planning authority proceeds by making decisions on the nature of the development.

In this instance the Court found that it is the matter of the categorisation, and not the merits of the planning consent, that was the relevant matter to be reviewed pursuant to section 86(1)(f). The Supreme Court noted that if it were otherwise, section 86(1)(f) would grant an unrestricted right of review of the ultimate planning decision to neighbours of category 3 developments and grant rights of review against those decisions to neighbours of category 2 developments. This would clearly undermine the express conferral of a right of appeal against the grant of planning consent only on those persons who made a representation on a category 3 form of development.

Ultimately the Supreme Court found that as Mr and Mrs Hoff lodged their application for review outside the two month time period pursuant to section 86(4), their appeal must be dismissed.

If you have any questions please contact Victoria Shute  on 08 8113 7104 or by email at  vshute@kelledyjones.com.au