21-25 South Esplanade Pty Ltd v State Planning Commission & Ors

[2022] SASC 106

Supreme Court of South Australia

(Appeal to a Single Judge)

21-25 SOUTH ESPLANADE PTY LTD v STATE PLANNING COMMISSION & ORS

[2022] SASC 106

Judgment of the Honourable Chief Justice Kourakis 

23 September 2022

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES

The appellant made an application for development at 25 South Esplanade, Glenelg in South Australia. The application was initially refused by the relevant planning authority and the appellant instituted an appeal in the Environment, Resources and Development Court (ERD Court). The appellant also produced a revised development proposal, which the relevant planning authority accepted by way of settlement. After the revised development proposal was agreed between the appellant and the relevant planning authority, certain persons made applications to be joined as parties to the appeal in the ERD Court. Those applications were allowed in the ERD Court.

This is an appeal against the decision of the ERD Court to join certain persons who lived adjacent to the appellant’s proposed development. As the persons were joined after the appellant and the relevant planning authority had agreed to settle the appeal, to which the joined parties had not agreed, the appeal had to proceed to a hearing on the merits. The appellant complains that the joined parties had no right to be joined and complain that the ERD Court made various errors in its reasons for making the determination for joinder.

Held, per Kourakis CJ allowing the appeal:

1.The parties should not have been joined because they were not persons with a direct or material interest in the appeal which would be prejudiced by the recording of the settlement pursuant to s 16(9) of the Environment, Resources and Development Court Act 1993 (SA).

2.The appeal is allowed and the orders joining the applicants as parties to the appeal are set aside.

Development Act 1993 (SA) ss 32, 33, 38, 38(4), 38(5), 38(7), 38(10), 38(12), 38(14), 86(1), 86(2), 88(1), 88(2); Environment, Resources and Development Court Act 1993 (SA) ss 16, 17(1), 17(2), 17(3); Development (Assessment Procedures) Amendment Act 2007 (SA), referred to.

21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4; Pitt & Ors v Environment Resources and Development Court & Ors (1995) SASR 274; O’Neill & Anor v Kimhi & Ors [2008] SASC 109; Coast Protection Board v Carramatta Holdings Pty Ltd (2015) SASR 409; The Corporation of the City of Marion v Lady Becker (1973) 6 SASR 13, discussed.

Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully (1985) 42 SASR 584; Independent Holdings Ltd v City of Adelaide Planning Commissioner (1994) 63 SASR 318; Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11, considered.

21-25 SOUTH ESPLANADE PTY LTD v STATE PLANNING COMMISSION & ORS
[2022] SASC 106

Appeal to a single Judge

1. KOURAKIS CJ:  This is an appeal against a decision of the Environment, Resources and Development Court (the ERD Court) to join certain persons who live adjacent to a Category 2 development as parties to an appeal against a refusal to grant development plan consent.[1]  The persons were joined after 21-25 South Esplanade Pty Ltd (South Esplanade) and the relevant planning authority had agreed to compromise the appeal.  The parties who were joined did not agree to the compromise and the appeal therefore had to proceed to a hearing on the merits.

   [1]     21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4.

2. In January 2021 South Esplanade applied under the now repealed Development Act 1993 (SA) (the Development Act) for the development of land at 21-25 South Esplanade, Glenelg. The development application was for the construction of a 13-storey residential building. The State Planning Commission (the Commission) delegated its functions under the Development Act to the State Commission Assessment Panel (SCAP).

3. The proposed development was assessed as a Category 2 development.  Accordingly, the relevant authority was required to give the owner or occupier of each piece of adjoining land, and any other person of a prescribed class, notice of the application, and was required to consider the representations any of them might make.[2]  I will refer to such persons as Category 2 representors, and to persons given equivalent and additional rights with respect to Category 3 developments, as Category 3 representors. 

   [2] Development Act, s 38.

4. On 30 June 2021 SCAP resolved that the proposed development was not seriously at variance with the policies in the Development Plan but nonetheless refused development plan consent.  This decision was largely based on the scale and mass of the proposed development and a failure to demonstrate that the local heritage place, in which it was to be built, could not be conserved. 

5. South Esplanade appealed to the ERD Court against the decision of the SCAP on 10 August 2021.  Before the appeal was instituted, a revised development proposal for a building ranging between four storeys and 10 storeys was put to SCAP on 20 July 2021 and 29 July 2021.  SCAP considered the development proposal on 11 August 2021 and 25 August 2021.  That consideration was held in confidence because SCAP took the position that acceptance of the proposal would constitute a compromise of legal proceedings.  SCAP agreed to settle the appeal on the basis of the revised plans (the revised plans) subject to the imposition of certain conditions.  That offer was communicated to South Esplanade on 21 September 2021.  The proceedings before the ERD Court, and the appeal to this Court, were premised on the acceptance of the conditions imposed such that there was a concluded agreement to compromise the proceedings between South Esplanade and SCAP (the compromise). 

6. After the institution of the appeal to the ERD Court, the following parties applied to be joined to the proceeding pursuant to the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act):

   ·By application dated 20 August 2021, Mark Forgie and Dale Hanson, who were the owners of apartments in Saltram Towers which is immediately adjacent to the proposed development on its northern side, and who had made submissions to SCAP. 

   ·By application dated 23 August 2021, Peter Moloney, who was the owner and occupier of land immediately adjacent and adjoining the southern side of the development and who had lodged representations with SCAP.

   ·By application dated 31 August 2021, the City of Holdfast Bay (the Council), the owner of reserves which were directly opposite the proposed development and which had made submissions to SCAP. 

   ·By application dated 14 September 2021, Bruce Kay and Henriette Kay, who lived next door to Mr Moloney and immediately adjacent the southern boundary of the proposed development, and who had made representations to SCAP. 

7. I will refer to those persons collectively as the joinder applicants.

8. On 3 September 2021 the appellant and SCAP appeared before a Commissioner of the ERD Court in a conference held in accordance with s 86(6) of the Development Act and s 16 of the ERD Court Act. South Esplanade requested that the conference be adjourned for directions before a judge of the ERD Court to consider the joinder applications which, by that time, had been filed by the Council and Messrs Moloney, Forgie and Hanson. Mr Kay was also present but had yet to lodge his application. South Esplanade foreshadowed objections to the applications and sought time to consider, in particular, the late joinder application made by the Council. It indicated that it proposed to file affidavits and submissions in opposition to the joinder applications which raised ‘novel issues at law’. Counsel for the Council and Messrs Forgie and Hanson opposed the adjournment and asked that their applications to be joined be heard by the Commissioner. SCAP and South Esplanade agreed that the revised plans would be provided to the joinder applicants by close of business on 6 September 2021 on a strictly confidential basis. The Court ordered that the hearing of the joinder applications be adjourned and that a conciliation conference be held on 10 September 2021.

9. On 10 September 2021 the joinder applicants informed the conference that after considering the development, they would not withdraw their application to be joined.  Mr and Mrs Kay advised that they would also file joinder applications.  The Court ordered that South Esplanade provide all existing joinder applicants and Mr and Mrs Kay an indexed and paginated book of documents and in electronic form the revised plans which had earlier been given in hardcopy form, again on a strictly confidential basis.  Directions were given as to the filing of submissions. 

10. The ERD Court heard the joinder applications on 24 September 2021 and judgment was delivered on 16 February 2022.  The ERD Court ordered that Mr Moloney, Mr and Mrs Kay, Mr Forgie and Mr Hanson be joined as parties to the appeal. 

11. The application by the Council was not finally determined at that time.  The Council was given further time to show that a proper delegation had been given to its officers to make the application or alternatively to ratify their acts.  On 21 March 2022 the Council was joined as a party to the appeal.  No issues are raised on the appeal concerning the reasons for the Council’s subsequent joinder. 

    Grounds of appeal

12. The appellant appeals on 18 grounds.  Rather than reproduce each of them in full, they can be adequately summarised as follows:

    1.The ERD Court proceeded on the erroneous premise that the joinder applicants had a right to be joined when instead they had a mere procedural entitlement to apply to be joined.

    2.The ERD Court erred in discounting the weight to be given to the compromise by giving an excessively wide meaning to the words ‘direct or material interest’ in s 16(9)(b) of the ERD Court Act.

    3.The ERD Court erred at [52] by adopting the binary approach that the Category 2 status of the applicants either prohibited their joinder or was no bar to it, when instead the correct position is that the Category 2 status of the applicants is one of a number of considerations in the proper exercise of the discretion.

    4.The ERD Court erred at [109] in concluding that ‘… evidence and submissions propounding an alternative view’ would be of benefit to the ERD Court on the merits hearing of the appeal because it presupposed that there should be a merits hearing after the compromise was reached.

    5.The ERD Court erred at [111] and [113] in its consideration of the impact of joinder on the proceedings by discounting the substantial prejudice to South Esplanade arising from joinder and by failing to recognise the prejudicial impact that joinder would have in subverting the entitlement (subject to s 16(9)) to have the compromise recorded and orders made authorising the development pursuant to s 16(7) of the ERD Court Act without a de novo hearing on the merits. 

    6.The Court erred at [117] in its analysis of the impact on the settlement on the joinder applications by:

    6.1 holding that the mere ability of Category 2 representors to apply to join recognises their interest in the proceedings under appeal, when s 17 of the ERD Court Act does not mention Category 2 representors, or limit joinder to Category 2 representors;

    6.2    construing the dicta of Doyle CJ in Pittv Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) as stating that persons in the position of Category 2 representors have a ‘right to join in an appeal’.

13. I allow the appeal and set aside the orders joining the applicants as parties to the appeal. The parties should not have been joined because they were not persons with a direct or material interest in the appeal which would be prejudiced by the recording of the settlement pursuant to s 16(9) of the ERD Court Act.

14. The underlying error of the ERD Court is that it considered the applications for joinder on the premise that there would be a de novo hearing on the merits. The premise is a false one. In circumstances where South Esplanade and SCAP had agreed to compromise the appeal, the ERD Court was bound, pursuant to s 16(7) of the ERD Court Act, but subject only to s 16(9), to record that settlement, and to make any determination or order necessary to give it effect. If pursuant to s 16(9) of the ERD Court Act, it appeared to the presiding officer that the settlement was inconsistent with a relevant Act, the presiding officer was bound not to record the settlement. Alternatively, the presiding officer could exercise the discretion conferred by s 16(9) of the ERD Court Act, not to record the compromise and give effect to it, if satisfied that the compromise may materially prejudice the direct or material interest in the matter of a person who was not represented at the conference. In the context of an appeal against the refusal of a development authorisation, the only non-party persons with a direct and material interest in the appeal are persons notified of a Category 3 development who, if the appeal is compromised by the grant of an authorisation without their joinder and consent, would suffer the prejudice of being denied a right of appeal against the giving of a development authorisation.

15. If neither of the two limbs of s 16(9) of the ERD Court Act stood in the way of the recording of the settlement, the presiding officer was bound to record the compromise and make the consequential orders. There could then be no hearing, and certainly no de novo hearing, of the merits of the planning application. However, the joinder applicants were joined as parties without first determining whether they had a direct or material interest in the appeal. Once they were joined the compromise could not be recorded, nor could consent orders be made, because even though they had no greater standing than persons being Category 2 representors, as parties, they could veto the settlement. There was no longer a compromise of the appeal which could be effected with the consent of all the parties. It became necessary therefore to proceed to a hearing on the merits of the appeal even though, for the reasons I give below, the joined applicants did not have a direct or material interest in the appeal, which would be materially prejudiced by the settlement. In that way, their joinder subverted the operation of ss 16(7) and (9) of the ERD Court Act.

16. If, any additional statutory warrant for limiting joinder, after the original parties to the appeal have reached a compromise, to applicants who have a direct or material interest (which would be prejudiced by the settlement) be needed, it can be found in s 88(2) of the Development Act. It provides that the ERD Court should only seek to deal with and resolve those issues in dispute between the parties and that it should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision assessment that is not being challenged.

17. Moreover, any wider joinder of parties with no direct or material interest would have curious results.  It would convert a proceeding in which there was no extant controversy between the parties, who properly constituted the proceeding immediately before the joinder, to a proceeding in which there was a controversy between those parties on the one hand and, on the other hand, parties who did not enjoy any right of appeal against the grant of a development authorisation of the kind which had been agreed. 

18. South Esplanade is therefore correct to submit that the joinder applicants had no right to be joined.  They held a procedural entitlement to be notified and to provide written submissions.  They were afforded that procedural entitlement by SCAP.  If SCAP had approved the development before any proceedings were initiated in the ERD Court, the joinder applicants would have no right to appeal against the decision unless they were also successful on their application to review the categorisation which the development had been given.  Their position may be contrasted with persons notified of a Category 3 development who may appeal against a development authorisation as of right.  Category 3 representors are materially prejudiced if a relevant planning authority, and a proponent, reach a compromise after an appeal against a refusal of development authorisation is brought which results in orders in the ERD Court granting development consent.  In that event persons notified of a Category 3 development are denied their rights of appeal, and possibly a de novo hearing on the merits of the development application. 

19. It follows that the ERD Court gave an excessively wide operation of s 16(9) of the ERD Court Act. The ERD Court also wrongly had regard to the assistance which the joinder applications might provide if the appeal proceeded to a hearing on the merits without first addressing South Esplanade’s entitlement or otherwise to have orders made without a hearing on the merits. The ERD Court fell into that error because it applied the observations of Doyle CJ in Pitt, when, in that case, a compromise had not been reached. 

20. I elaborate on my reasons below.

    The legislation

21. Sections 32 and 33 of the Development Act prohibit the undertaking of a development unless the relevant authority has assessed it and granted consent in respect of the applicable Development Plan.

22. Section 38 of the Development Act prescribes the public notice which the relevant authority is required to give and the consultation in which it must engage, according to the Category (1, 2, 2A or 3) assigned to the development by either the Development Plan or the regulations:

    38—Public notice and consultation

    …

    (4)Where a person applies for a consent in respect of the Development Plan for a Category 2 development, notice of the application must be given, in accordance with the regulations, to—

    (a)     an owner or occupier of each piece of adjacent land; and

    (b)     any other person of a prescribed class.

    (5)Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to—

    (a)     the persons referred to in subsection (4); and

    (b)     any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed; and

    (c)     the public generally.

    …

    (7)Subject to subsection (17), where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent.

    …

    (10)In addition to the requirements of subsections (7), (8) and (9)—

    (a)     in the case of a Category 2 development—the relevant authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation; and

    (b)     in the case of a Category 3 development—the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation.

    …

    (12)Where representations have been made under this section, the relevant authority must—

    (a)     give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person's appeal rights under this Act; and

    (b)     in the case of a Category 3 development—give notice to the Court—

    (i)of its decision on the application and of the date of the decision; and

    (ii)of the names and addresses of persons who made representations to the relevant authority under this section.

    …

    (14)An appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision.

    …

1. The following features of s 38 of the Development Act are important. Subsections (5) to (10) of s 38 of the Development Act carefully prescribe the different procedural entitlements of those persons to whom notice must be given of a Category 2 development or a Category 3 development. The relevant authority has a discretion, conferred in the widest possible terms, to decline to hear oral submissions from the former but must afford that opportunity to the latter. It is also significant that in addition to requiring that persons notified of a Category 3 development be given notice of the rights of appeal conferred on them by s 86 of the Development Act, s 38(12) requires that the relevant authority provide their contact details to the ERD Court. It should also be noted that s 38(14) of the Development Act imposes a statutory time limit within which to appeal against approval of a Category 3 development instead of leaving the matter to be prescribed by the rules of the ERD Court.

2. Section 38(14) of the Development Act anticipates the right of appeal conferred by s 86 of the Development Act which provides:

   86—General right to apply to Court

   (1)The following applications may be made to the Court—

   (a)     a person who has applied for a development authorisation may appeal to the Court against—

   (ai)any assessment, request, decision, direction or act of a relevant authority under this Act that is relevant to any aspect of the determination of the application; or

   (i)a refusal to grant the authorisation; or

   (ii)the imposition of conditions in relation to the authorisation; or

   (iii)subject to any exclusion prescribed by the regulations, any other assessment, request, decision, direction or act of a relevant authority under this Act in relation to the authorisation;

   (b) a person who is entitled to be given a notice of a decision in respect of a Category 3 development under section 38 may appeal to the Court against that decision (subject to the limitations imposed by that section);

   …

   (f)     a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of a piece of adjacent land, may apply to the Court for a review of the matter with respect to—

   (i)a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of section 35;

   (ii)a decision under section 38 as to the category of the development.

   …

   (6)Any other application, other than an application of a prescribed class, must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). 

3. I observe in passing that the joinder applicants also sought a review of the categorisation of the development pursuant to s 86(1)(f) of the Development Act in order to secure appeal rights should their applications to be joined fail. However, nothing turns on those applications on this appeal. For the purposes of this appeal, the cardinal feature of s 86 is that it confers on the proponent of the development an appeal as of right against the refusal of a development authorisation and confers on a Category 3 representor, an appeal as of right against the grant of development plan consent. The controversy in the appeal proceeding constituted by the former appeal right is one between the relevant authority and the proponent of the development. In those proceedings the relevant authority must act in the public interest, and in resolving the controversy, the ERD Court weighs the public interest against the proponent’s interest to the extent that there is any inconsistency. The public interest is in the proper application of the Development Act. In appeal proceedings of the latter kind the controversy may be tripartite because both the proponent of the development and the relevant authority will also be parties to that appeal.

4. Finally, it should be noted that the introduction to s 86(1) of the Development Act uses the word ‘applications’ to encompass both of the processes, appeals and reviews, falling within that section.

5. Section 88 of the Development Act relevantly provides:

   88—Powers of Court in determining any matter

   (1)The Court may, on hearing any proceedings under this Act—

   (a)     confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate;

   (b)     affirm, vary or quash any order, notice or other authority that has been issued;

   (c)     order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit;

   …

   (da)   if appropriate in the circumstances of the proceedings—make any determination or declaration, or grant any other remedy or relief as the Court thinks fit;

   (e)     make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

   (2)The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:

   (a)     subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged;

   (b)     if—

   (i)a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or

   (ii)a third party is appealing against a decision to grant a development authorisation,

   the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit);

   (c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under s 37) or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant)), determine not to grant the application—

   (i)on the ground that the Court is not satisfied that the person has a special interest in the subject-matter of the application; or

   (ii)on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or

   (iii)on any other ground determined to be appropriate by the Court.

6. Section 88(1) of the Development Act confers on the ERD Court wide powers to confirm, vary or reverse the decision against which an appeal is brought. Those powers are indicative of an appeal by way of rehearing. Section 88(2)(b) of the Development Act which was enacted in 2007[3] confirms that is so and goes further by allowing the ERD Court a discretion to consider the application for development authorisation de novo.  Two consequences of the conferral of an appellate jurisdiction of that width should be noted.  First, whatever the historical practice of the ERD Court might be, the Court should not proceed to hear a matter de novo if to do so would be inconsistent with s 88(2)(a) of the Development Act. Nonetheless, I acknowledge that in the generality of cases in which the appellant’s complaint is that the wrong decision was made on the merits, it is unlikely to be inconsistent with s 88(2)(a) to proceed to hear the matter de novo. 

   [3]     Development (Assessment Procedures) Amendment Act 2007 (SA).

7. True it is that the subject matter of the application to the ERD Court may be whether or not development plan consent ought to have been given or refused on the merits. However, the special interest referred to in s 88(2)(c)(i) of the Development Act must be in the matters arising on the appeal and not in the effects of the administrative decision to grant consent which, if given, might impact on the enjoyment of the joinder applicant’s premises. If that was all that was required, Category 2 representors would have been included alongside Category 3 representors in the prefatory words of s 88(2)(c) of the Development Act. It follows that there must be something more than the mere status of a joinder applicant as a person notified of a Category 2 development. The additional matter might be that the adverse effects of the development on the particular joinder applicant extends beyond the generally contemplated effects on occupiers of premises adjacent to Category 2 developments. Alternatively, or it might be that the course of the proceedings and possible adverse outcomes for the particular joinder applicant go well beyond what might have been anticipated when notification was first given.

8. The significance of the obligation imposed by s 38(12) of the Development Act on the relevant authority to provide the ERD Court with the contact details of the persons entitled to be notified of a Category 3 development is also found in s 88(2)(c) of the Development Act. Those persons, and the Crown, cannot be excluded from joinder on the ground that the ERD Court is not satisfied that they have a special interest in the application, or the interests of justice require their joinder or on any other ground. The notification of the contact details by the relevant authority allowed the ERD Court to readily identify these persons. The application referred to in s 88(2)(c)(i) is, of course, the application, whether an appeal or a review, brought before the ERD Court pursuant to s 86(1) of the Development Act. It is not the application for development authorisation.

9. I also draw attention to the effect of enacting s 88(2)(c)(iii) of the Development Act. Plainly enough, the ERD Court will not join a party in the exercise of its discretion if it determines that it is not appropriate to do so ‘on any other ground’. If the word ‘may’ in the prefatory words at s 88(2)(c) of the Development Act conferred a residual discretion to join, or to decline to join a party, despite failure to satisfy either of the first two placita, it would have been unnecessary to enact placitum (iii). It follows that the power to join a person as a party is conditional on satisfaction of one or more of those placita.

10. Section 16 of the ERD Court Act provides for the holding of an early conference to explore a resolution of the proceedings by consent:

    16—Conferences

    (1)A relevant Act, or the rules, may provide that proceedings of a specified class must at first instance be referred to a conference under this section.

    (2)The purpose of a conference is to enable the member of the Court presiding at the conference (appointed by the Senior Judge of the Court or selected in accordance with the rules) to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing.

    (3)The Court may dispense with a conference if it is of the opinion that—

    (a)     no useful purpose would be served by a conference between the parties prior to a hearing of the matter; or

    (b)     there is some other reason that justifies dispensing with the conference.

    (4)A conference may, at the discretion of the member of the Court presiding at the conference, be adjourned or reconvened from time to time.

    (5)Unless otherwise determined by the member of the Court presiding at the conference, a conference will be held in private.

    (6)Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party.

    (7)The member of the Court presiding at a conference may—

    (a)     if that member is a magistrate or commissioner—refer any question of law to a Judge of the Court for determination;

    (b)     require a party to the proceedings to furnish particulars of his or her case;

    (c)     determine who, apart from the parties to the proceedings (and their representatives), may be present at the conference.

    (d)     subject to subsection (9), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement;

    (e)     on his or her own initiative, close the conference at any time if, in his or her opinion, settlement cannot be reached;

    (f)     advise the Court if the conference does not reach a settlement within a reasonable time;

    (g)     permit a party to withdraw from the proceedings (and make any consequential order that is appropriate in the circumstances);

    (h)     give summary judgment (with costs) against any party who obstructs or delays the conference, fails to attend the conference or fails to comply with a regulation, or a rule or order of the Court;

    (i)    do such other things as the rules of the Court may provide.

    (8)Evidence of anything said or done in the course of a conference under this section is inadmissible in proceedings before the Court except by consent of all parties to the proceedings.

    (9)The member of the Court presiding at a conference—

    (a)     must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and

    (b)     may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter.

    (10)If the member of the Court presiding at a conference is unable to continue with the conference, another member of the Court may be appointed to continue and complete the conference.

    (11)Unless all parties to the proceedings agree to his or her continued participation, the member of the Court who presided at the conference is disqualified from sitting as a member of the Court for the purpose of hearing and determining the matter.

11. The use of the word ‘may’ in the opening words of s 16(7) of the ERD Court Act, is explained by the wide and open textured discretion conferred on the presiding officer to select the most appropriate case management orders from the subparagraphs which follow.

12. Secondly, the effect of s 16(6) of the ERD Court Act may be limited to a statutory expression of the common law rule that, unless otherwise expressly stipulated, a party is bound by the agreement made by their legal, or other, representative. It therefore seems to go a little further in precluding any express limitation being placed on a party’s legal representative. The subsection may also bind parties to the settlement they have reached in the conduct of the proceedings even if the settlement is not recorded and orders implementing it are not made by the presiding officer pursuant to s 16(7) of the ERD Court Act.

13. I would construe s 16(7)(d) of the ERD Court Act as requiring the presiding officer to record the settlement and make consequential orders unless precluded from doing so by s 16(9). So much is strongly indicated by subjecting the power to record a settlement to s 16(9). It is neither necessary, nor possible, to imply a wider discretion to be exercised in the public interest, of the kind that has been implied in interstate legislative schemes which do not have an analogue to s 16(9) of the ERD Court Act. Parliament cannot be taken to have expressly subjected s 16(7) of the ERD Court Act only to s 16(9), with its limited exceptions, while at the same time impliedly conferring an unfettered discretion to decline to record a settlement as the Court sees fit.

14. If it be assumed that the presiding officer may decline to record a settlement for another reason, that circumstance would rarely arise. In any event, the applications in this case for joinder rely primarily on s 16(9)(b) of the ERD Court Act

15. In construing the phrase ‘may materially prejudice any person … who has a direct or material interest in the matter’, its immediate context is the application to the ERD Court and the settlement of that matter. As to the application, it is to be noted that the very purpose of the conference is stated by s 16(2) of the ERD Court Act to be the exploration of a possible resolution of the matters in dispute on the application ‘without resorting to a formal hearing’. The absent person must have a direct or material interest in the issues arising on the application. In an appeal against the refusal of a development authorisation, the appellant, as the proponent of the development, has a direct or material interest in the matters arising on the appeal because the resolution of those matters will either grant or deny the proponent a right to undertake the development. On appeal by a Category 3 representor, the proponent, as respondent, has the same direct or material interest, and the Category 3 representor has the opposing interest. The nature of the interest of the proponent and Category 3 representors must inform the meaning of the phrase ‘direct or material interest’. As to the context provided by the settlement, its effect is to settle the very controversy which the proceeding was brought to quell. The effect of declining to record the settlement will necessarily require the joinder of the absent person because there is little utility in proceeding to a ‘formal hearing’ if there is no contradictor. The question therefore is; Does the absent person have a direct or material interest in the appeal which is so prejudiced by the compromise as to effectively require a reconstituted proceeding to proceed to a de novo hearing in which the only controversy is between that person on the one hand and the original parties on the other?  The direct or material interest in the matter which is prejudicied cannot be found in the effect of the development on the amenity of nearby premises. 

16. On a proper construction of s 16(9)(b) of the ERD Court Act, its purpose, in the context of a planning appeal, is to protect Category 3 representors. A Category 3 representor is the paradigm case of a person who has a direct and material interest in the matter, in the sense of an appeal against a refusal of development consent, and who may be materially prejudiced by a settlement in which consent to a revised development is given. That is so because if the relevant authority had given development consent in the first instance, a Category 3 representor would have an appeal as of right against that authorisation. However, if development authorisation is given pursuant to a compromise and consent orders made on appeal to the ERD Court, in the absence of a Category 3 representor, that right of appeal is lost. Again the significance of the obligation imposed on the relevant authority to provide the contact details of the persons it was bound to notify of a Category 3 development can be seen. It allows the presiding officer to readily and reliably ascertain that a person with a direct or material interest is not present at the conference pursuant to s 16 of the ERD Court Act.

17. I acknowledge that s 16(9) of the ERD Court Act is not, in terms, limited to the persons entitled to notification of a Category 3 development. That is not surprising because the provision is of general application to proceedings other than appeals by a proponent. However, the special provisions made for persons entitled to be notified of Category 3 development by ss 38(10)(b), 38(12), 86(1)(b) and 88(2)(c) of the Development Act, in combination, lead to the conclusion that they, and not persons notified of Category 2 developments, are persons with a direct or material interest in the compromise of a proponent’s appeal against a refusal of development consent. A Category 2 representor may well be interested in the outcome of a planning appeal because of the effects of the development on the amenity of their premises but that is not to be equated with a direct or material interest in the appeal.

1. Finally, the consequences of a contrary construction would unnecessarily complicate and prolong the processes of giving effect to a development consent to which the relevant authority agrees as an element of a compromise. In this case the joinder applicants submit that South Esplanade would not obtain an approval under the legislative scheme which has replaced the Development Act. However, in the ordinary course, if persons notified of a Category 2 development are joined as parties after a settlement and veto it, the proponent may choose to make a new application, instead of incurring the delay, cost and uncertainty of a contested Court hearing with Category 2 representors as the opposing parties. On making a fresh application the proponent can expect that the relevant authority may be bound by the compromise in respect of a fresh application pursuant to s 16(6) of the ERD Court Act, and, if not bound, at least that it will act consistently with the policy position it adopted in reaching the compromise.

2. If the proponent chooses to make a fresh application the joinder of Category 2 representors will have been futile, and result instead in a circuitous route to obtaining development consent.  Of course on a fresh application for consent to a Category 2 development, the persons notified would not enjoy appeal rights. 

3. Parliament could not have intended that the joinder power conferred by s 17 of the ERD Court Act would frustrate the expeditious resolution of proceedings at a conference held in accordance with s 16 of the ERD Court Act.

4. Section 17 of the ERD Court Act confers the relevant power to join a person as a party which is governed, in the case of development authorisation appeals, by s 88(2)(c) of the Development Act:

   17—Parties

   (1)The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).

   (2)A commissioner may not make an order under subsection (1) except—

   (a)     on the application of, or with the consent of, the party to be joined; or

   (b)     with the concurrence of a Judge.

   (3)An order under subsection (1) may be made on an application without notice to any person.

   …

5. I note that the jurisdiction conferred on the Commissioner extends to an application made by a person which is opposed by one or all of the parties to the proceedings as first constituted. However, in this case, the application was heard by a Judge and Commissioner, sitting together, to determine South Esplanade’s objections. I emphasise that the broad power conferred by s 17 of the ERD Court Act must be exercised in accordance with s 88(2)(c) of the Development Act. It must also be exercised by focussing on the particular issues before the ERD Court at the time the application is made.

   Authorities on joinder pursuant to s 17 of the ERD Court Act

6. In Pitt the Full Court considered the nature of the discretion conferred by s 17 of the ERD Court Act to join persons who resided nearby to the development as parties to an appeal brought under the City of Adelaide Development Control Act 1976 (SA) (the 1976 Act). Section 88(2)(c) of the Development Act or any analogue was yet to be enacted. Before the enactment of s 17 of the ERD Court Act there was no equivalent power in the Court to join persons as parties on appeal against the refusal of development plan consent. Nor did the 1976 Act confer any right of appeal on those persons who had been notified of the development application. A Judge of the ERD Court declined to join the applicants as parties. On appeal to this Court, the Full Court in Pitt allowed the appeal and made orders that the persons be joined.

7. After holding that the ERD Court had the power to join those persons, Doyle CJ made some brief observations about the relevant considerations and test to be applied on an application for joinder.  The matters which Doyle CJ identified were:

   ·The nature and strength of the interest of the applicant for joinder;

   ·The contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court;

   ·Whether the interests which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court; and

   ·The impact upon the proceedings of joinder including the interests of the parties constituting the appeal and the public interest in the prompt and efficient dispatch of proceedings.

8. I pause to identify that, save for the first consideration, the remainder require close attention to the scope of the controversy before the court.  Importantly, in Pitt the parties to the appeal, as originally constituted, had not reached a settlement and the appeal was to proceed on the merits.

9. Doyle CJ acknowledged that if an order for joinder were made, the interests represented in the proceedings would necessarily be expanded beyond the applicant for planning approval and the planning authority.  Doyle CJ described that result as ‘a necessary consequence of the conferral of the power to join’.[4]  Doyle CJ held that that consequence did not subvert the absence of any third party rights of appeal in the legislative scheme.  Doyle CJ said:

   The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances in the case there are factors making it appropriate to do so.  Joinder will never be made as of course.[5]

   [4] (1995) 66 SASR 274, 275-276.

   [5] (1995) 66 SASR 274, 276.

10. Doyle CJ’s analysis of the legal significance of joinder is, with respect, correct when there has been no compromise.  In such a case there is in the appeal proceedings to which the person is joined an extant controversy on whether or not development authorisation should be granted.  It is however difficult to say that a party with no legal right to appeal against a development plan consent has not been given a de facto ability to do so if they are joined to an appeal which has been compromised with the agreement of the relevant authority that development authorisation should be given. 

11. Doyle CJ also rejected the contention that because the 1976 Act did not allow third party appeals, a restrictive approach should be taken to the making of an order for joinder.  Doyle CJ’s position is, with respect, correct in its application to an appeal which has not been compromised. 

12. Duggan J acknowledged that mere meddlers and busybodies should not be joined. He identified as ‘the starting point’ that the applicant for joinder must have a genuine interest in the appeal which would prejudicially be affected by an order which might be made on the appeal. Even though Duggan J referred to ‘an interest in the appeal’, it is clear that he had in mind the effect of the development if approved on the nearby premises of the joinder applicants. Duggan J rejected the contention that something in the nature of a ‘special’ case must be established. As we have seen, s 88(2)(c) of the Development Act now requires the ERD Court to be satisfied that an applicant for joinder has a special interest in the subject matter of the application in the ERD Court or that the interests of justice require joinder, or that there is some other appropriate ground to join a person to the application.

13. In O’Neill v Kimhi,[6] Debelle J upheld an appeal against a decision of a Judge of the ERD Court dismissing an application by neighbours to be joined as parties to an appeal in that Court.  The development in question was a Category 2 development which was to be constructed at Tennyson on a block that extended from Military Road through to Seaview Road.  On the Military Road frontage, it was to be three storeys high and on the Seaview Road frontage, it was to be two storeys high. 

    [6] [2008] SASC 109.

14. The proponents, (the Kimhis) appealed to the ERD Court against the decision of the Council refusing Development Plan Consent. After the Judge had refused the application for joinder, a Commissioner presided over a conference pursuant to s 16 of the ERD Court Act, at which the applicants for joinder (the O’Neills), were permitted to be present. The Kimhis and the Council did not settle their dispute at the conference. However, at a later time, a Commissioner of the ERD Court made an order with the consent of the Council granting development plan consent subject to certain conditions. The O’Neills were not, at that time, parties to the appeal.

15. The proceedings in O’Neill v Kimhi were governed by the then recently enacted s 88(2) of the Development Act which had come into operation on 26 April 2007.[7] Section 88(2)(c) of the Development Act was then in relevantly similar terms to the sub-section governing this case.

    [7]     The Development (Assessment Procedures) Amendment Act 2007 (SA).

16. The second reading speech perhaps diplomatically states that the purpose of the enactment of s 88(2) of the Development Act was to clarify the discretion of the Court on an application by certain persons to be joined in proceedings.[8] The ‘clarification’ involved a statutory confinement of the widely expressed power to join a party conferred by s 17 of the ERD Court Act which was considered by this Court in Pitt. It appears that the amendments were the product of successful negotiations between the government and the opposition. For that reason, they were not debated. However, the subject matter of the provision is plainly enough the broad discretion conferred by s 17 of the ERD Court Act and the manifest intention of s 88(2)(c) of the Development Act is to restrict the width of that discretion. It is therefore wrong to apply the approach adopted in Pitt to applications for joinder which fall within s 88(2)(c) of the Development Act. The duty of the Court is to properly construe and apply s 88 (2)(c) of the Development Act.

    [8]     South Australia, Parliamentary Debates, House of Assembly, 29 March 2007, 2256-2258 (The Hon J.W. Weatherill).

17. Debelle J said of s 88(2)(c) of the Development Act:[9]

    [12]Section 88(2)(c) invests the Environment Court with a wide discretion. The Court has power to refuse an application for joinder if the applicant does not have a special interest in the application or if, whatever the interest of the applicant, the Court is not satisfied with the interests of justice require the applicant be joined, or for any other ground determined by the Court to be appropriate. Notwithstanding the width of that discretion it must be exercised within the scope and ambit of the Development Act, the Development Regulations and the Development Plan.

    Debelle J then observed that the terms of s 88(2)(c) of the Development Act:[10]

    [14]… do not create a presumption against joinder in the case of developments that are Categories 1 or 2.  Instead, they state that an applicant for joinder will not succeed if he fails to establish a special interest or fails to persuade the Court that the interests of justice require that he be joined.  In a particular case it might be sufficient if he satisfies the court of only one of those factors.

    Implicit in that paragraph is an acceptance by Debelle J that notwithstanding the use of the word ‘may’, in the ordinary course the ERD Court will refuse an application unless the person seeking to be joined establishes that they come within one or more of the placita of s 88(2)(c) of the Development Act. For the reasons I developed in [31] above I respectfully agree. On the other hand it appears to me that there is necessarily a presumption against joinder once it is accepted that a person will not be joined unless they show that they fall within placitum (i) and do not fall within (ii) and (iii) of s 86(2)(c) of the Development Act. Moreover, even though it can be expected that the terms ‘interest of justice’ and ‘any other ground’ are widely expressed, the effect is not to grant the Court a wide discretion to join parties. On the contrary, the Court is given a wide power to refuse joinder. Section 88(2)(c) of the Development Act is so structured that the Court will not order joinder unless the applicant has a special interest pursuant to placita (i) and there is no reason or ground under placitum (ii) or (iii) to refuse joinder.

    [9] [2008] SASC 109.

    [10] Ibid.

18. The reasoning of Debelle J in respect of the exercise of the discretion to allow the O’Neills to be joined as parties did not take into account the fact of the settlement between the Kimhis and the Council on a compromised plan.  Debelle J dealt with the fact of that settlement in response to a submission that allowing the appeal would be inutile:[11]

    [33]The Kimhis rely on the fact that on 15 April a Commissioner in the Environment Court made an order granting development consent to the Kimhis.  They contend that it is now too late for the O’Neills to be joined.  The submission fails to allow for the fact that this court can order that its order joining the O’Neills as parties to the appeal in the Environment Court operate as from the day on which the judge decided the application for joinder.  It is appropriate that the order should operate as from 27 February.  If the judge had made the correct order, the O’Neills would have been joined on that date.  If the court does not make the order operate from 27 February, there is a real potential for injustice.  The order joining the O’Neills will, therefore, operate from 27 February.  The consequence is that, as they ought to have been parties from that date, every step in the proceedings thereafter is a nullity, at least to the extent that the O’Neills do not consent to that step.  The order made on 15 April is, therefore, a nullity and must be set aside.

    [11] Ibid.

19. With respect, Debelle J did not address the critical effect of the settlement on the exercise of the discretion to join.  Debelle J weighed the relevant considerations which come into play on the premise that the appeal will proceed to a merits hearing, as was the case, in fact, in Pitt.  However, in O’Neillv Kimhi, accepting that the order for joinder if made on appeal could operate retrospectively, the question was whether it was appropriate to join the O’Neills when the first question which the ERD Court had to address was limited to whether the Commissioner should decline to make the consent order pursuant to s 16(9) of the ERD Court Act. The only issues in that respect were inconsistency with the Development Act and whether the O’Neills had a direct or material interest in the appeal which would be materially prejudiced by the compromise. Those questions are materially different from the minimum threshold for joinder in s 88(2) of the Development Act but were not addressed by Debelle J.

20. Moreover, that being the only issue on the appeal to the ERD Court, unless and until a decision was made not to record the compromise pursuant to s 16(7) of the ERD Court Act, the joinder of the O’Neills would necessarily radically prolong and complicate the proceeding before the Court because the O’Neills, by withholding consent, could outflank the limited discretion which the Commissioner was called on to exercise pursuant to ss 16(7) and (9) of the ERD Court Act.

    The decision of the ERD Court

21. At paragraphs [71]-[72] of its reasons, the ERD Court rejected South Esplanade’s submission that the power of the Court to record a settlement at a compulsory conference (at which the developer and the relevant authority were present as the only parties to the appeal) confirmed the weight to be given to the settlement for the following reasons:

    [73]First, s 16(7)(d) of the ERDC Act provides that the member of the Court presiding at a conference may, subject to subsection (9), record any settlement reached at a conference and make any determination or order necessary to give effect to a settlement. Section 16(9) provides that the member of the Court presiding at the conference must not accept a settlement that appears inconsistent with a relevant Act and may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter.

    [74]It appears to us that an adjacent owner and occupier who seeks to be joined in the proceedings will almost always have a direct or material interest in the proposed development.  Their interests are likely to be materially prejudiced should settlement be viewed as a bar to the grant of joinder, and hence their right to participate as a party in a hearing as to the merits of the proposed development would be lost.  Only if their objection is so weak that it is almost doomed to fail or perhaps that their objection relates only to one small aspect of the proposed development could it be said that their loss of the right to participate in a hearing does not constitute material prejudice.

    [75]Secondly, South Esplanade submitted that the right of applicant for a development and the Commission to settle at a section 16 conference was a substantial right which the applicants for joinder seek to interfere with. We reject that submission. Kourakis CJ in Carramatta Holdings held that the jurisdiction and power to make an order recording a settlement is not found in s 16 of the ERDC Act which regulates the procedure by which the Court may make an order, but in other provisions of the Development Act - in that case s 85, but in the present case s 88(1)(a) of the Act which provides that the Court on hearing any proceedings under the Act may:

    (a)     confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate.

    [Citations omitted]

    There are with respect several errors in those paragraphs. First, as I have explained, even though the power to join a party conferred by s 17 of the ERD Court Act is expressed widely, the power to join in that section must be read together with s 88(2)(c) of the Development Act which limits the discretion by providing that the Court may determine not to join a party (other than the Crown or a Category 3 objector) on the ground that the Court is not satisfied that the person has a special interest in the subject matter of the application, and even if so satisfied, on the alternative grounds that whatever the interest of the person, the Court is not satisfied that the interests of justice require that the person be joined as a party, or on any other ground determined to be appropriate by the Court.

22. The special interest in the subject matter of the application is a special interest in the subject matter of the application to the Court made pursuant to s 86(1) of the Development Court Act and not, as paragraph [74] of the reasons holds ‘the proposed development’. Moreover, the three grounds on which the Court may decline to join a person cover the field in the sense that the Court may decline to make a joinder order for any one of the three reasons set out in s 88(2)(c) of the Development Court Act. If any one of those reasons or grounds is made out, the Court must refuse the application. So much follows as have I earlier explained, from the enactment of s 88(2)(c)(iii) of the Development Act which reads ‘on any other ground determined to be appropriate by the Court’.

23. Secondly, the ERD Court also erred in its construction of the phrase ‘direct or material interest’ in s 16(9)(b) of the ERD Court Act. The first sentence of paragraph [74] of the reasons states that an adjacent owner or occupier will almost always have a direct or material interest in the development application. However, for the reasons I have given in paragraphs [29] and [37] above, the matter referred in s 16(9)(b) is not the development application, but the appeal, and in particular, the settlement of the factual and/or legal controversy between the parties to the appeal as first constituted. Moreover, not only does the phrase ‘direct or material interest’ require a more focussed forensic enquiry, the obstacle to recording a settlement in s 16(9)(b) requires that the interest be materially prejudiced by the settlement.

1. Thirdly, adjacent owners and occupiers generally do not have a direct or material interest in the development itself.  The proposed development may be likely to affect their enjoyment of land in which they have a direct or material interest, but it is a strained use of language to say that they have a direct or material interest in the development.

2. In that respect, it is significant that the procedural rights to be heard on a proposed application are not assigned by reference to the concept of an interest in the proposed development. Rather, subsections (4) and (5) of s 38 of the Development Act confer a right to be heard on carefully delineated classes of persons. For example, s 38(5) of the ERD Court Act requires, for Category 3 developments, notice to ‘any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed’. Any notion of giving notice to those persons having an ‘interest’ in the development application, is, for sound reasons, eschewed.

3. Fourthly, it is not obvious what the ‘interests’ of Category 2 representors are, which are likely to be materially prejudiced by a development. Category 2 representors have no right of appeal from a decision to approve a development. Their procedural entitlement at the development consent stage is simply to make written submission to the planning authority and they have no right to appeal against a grant of consent. On appeal by a proponent against a refusal, or on an appeal against approval by a Category 3 representor, Category 2 representors have a mere procedural facility to ask the ERD Court to favourably exercise its discretion to join them. It is wrong therefore to say that a settlement recorded pursuant to s 16(7) of the ERD Court Act deprives Category 2 objectors of ‘their right to participate as a party in a hearing as to the merits of the proposed development’. They have no such right.

4. Fifthly, persons notified of Category 2 development do not have a right to be joined, even to an appeal which is proceeding to a formal hearing, brought by the proponent or a Category 3 representor irrespective of the strength or width of their objection. Whether or not they are joined is still dependent on satisfaction of placitum (i) and the absence of any other reason not to join under placitum (ii) and (iii) of s 88(2)(c) of the Development Act. The exercise of the discretion under s 88(2)(c)(iii) of the Development Act requires attention to a wide range of circumstances, including whether or not other parties will put their case or whether or not they will add anything to the proceedings by being joined. Even when the objection of a Category 2 representor is strong and is to the entire development, it cannot be said that they have a right to participate in the hearing.

5. Finally, it is plainly the case that an order made pursuant to s 16(7) of the ERD Court Act is an order made pursuant to s 88(2)(a) of the Development Court Act. However, the observation concerning Coast Protection Board v Carramatta HoldingsPty Ltd,[12] (Carramatta Holdings) at paragraph [75] of the reasons does not address the duty imposed on the ERD Court to exercise the power in a particular way if a settlement has been reached and there is no obstacle presented by s 16(9) of the ERD Court Act to recording it.

   [12] (2015) 122 SASR 409.

6. The ERD Court proceeded to hold, correctly, that it had a role in determining whether to make an order approving a development following an earlier refusal by a planning authority notwithstanding an agreement reached between the developer and the relevant authority. However, that role and power is fully circumscribed by s 16(9) of the ERD Court Act.

7. The ERD Court relied on the terms of s 88(1)(a) of the Development Act, and the decision of Carramatta Holdings in support of its decision to join the joinder applicants. With respect, the bare power to vary an order previously made is only remotely, if at all, connected to the judicial power and function to be exercised in accordance with ss 16(7) and 16(9) of the ERD Court Act. Importantly, the power to hear from an interested person in accordance with the rules, or even informally, in deciding whether the ERD Court should act on its own motion does not inform the proper exercise of the power conferred by s 16(7) of the ERD Court Act. Joinder of a person who does not have a direct or material interest which will be materially prejudiced by the settlement will subvert the very power conferred by s 16(7) of the ERD Court Act.

8. Next, the ERD Court then suggested a possible limit on its power on which the joinder applicants might usefully be heard:

   [79]The Full Court in City of Marion v Lady Becker & Ors also held that the Court would not have power to approve a revised plan that was fundamentally different to the plan which gave rise to the appeal.  Bray CJ held:

   On this I can be briefer.  I agree with the learned Judge that the Board “would not have the power to approve a plan that was fundamentally different in character from that which originally gave rise to the appeal”.  I prefer that positive formulation to the negative one that found its way into the learned Judge’s order that there is no power to approve a plan which differs from the one which gave rise to the appeal, unless the one is the same as the other “with only minor and immaterial variations”. 

   [80]Lady Becker was followed in Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully & Ors.  In that case, following a rejection of the proposed development by the Planning Appeal Board, the developer appealed to the Supreme Court (as was then the planning regime) and submitted new plans to address the concerns of the Council.  Jacobs J (at first instance) held that “any changes must not pass the point where a new proposal is produced.  The question as to when that point is reached must be one of degree having regard to all of the facts of each particular case”.  The Full Court per O’Loughlin J (Zelling and Cox JJ agreeing) reached the same conclusion.

   [81]The Full Court in Independent Holdings Limited & Ors v City of Adelaide Planning Commission & Ors also applied Lady Becker but reached the opposite conclusion on the facts of that case.  In Independent Holdings, the court emphasised the need and convenience of permitting a revised plan to implement an agreement reached in consequence of a conference.  However, if the amendments are so extensive so as to change the character of the development, the Court will not approve the revised development.

   [82]We do not accept that SCAP is functus officio when it comes to consider the revised development following the institution of the appeal.  SCAP can form a view on the revised development for the purpose of the appeal proceedings and for settling those proceedings.  That is what SCAP has done in the present case.  If the Court considers the revised development proposal to be fundamentally different in character from the initial proposal within the meaning of Lady Becker, then the Court will not have power to make an order approving the revised development, irrespective of any agreement that may have been reached between the existing parties.

   [Citations omitted]

9. In The Corporation of the City of Marion v Lady Becker (Lady Becker),[13] Wells J at first instance, and Bray CJ and Zelling J on appeal, held that the review authority at the time, the Planning Appeal Board, did not have power to approve on appeal a plan of subdivision which was fundamentally different from that lodged with the application for development approval.  They held that the Board had power to approve a new plan with only minor changes.  However, that conclusion was reached in the context of the particular powers of the Planning Appeal Board which were limited to giving directions to the relevant planning authority as to amendments which could be made to the development which was the subject of the application.  Lady Becker was followed in Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully[14] which also dealt with the power of the Planning Appeal Board.  In Independent Holdings Ltd v City of Adelaide Planning Commissioner,[15] this Court held that a relevant planning authority had an implied power to accept an amendment to a development application.

   [13] (1973) 6 SASR 13.

   [14] (1985) 42 SASR 584.

   [15] (1994) 63 SASR 318.

10. It is not obvious to me that those authorities can be applied without modification to s 88 of the Development Act which confers an unrestricted power to confirm, vary or reverse planning decisions and which allows a de novo hearing on the appeal. The limit, if there be one, on the ERD Court approving an amended plan is most likely located on the effect on the consultation process in Part 4 of the Development Act, which in turn depends on the proper categorisation of the development.

11. In any event an application pursuant to s 16(7) of the ERD Court Act to record a settlement is not a contested hearing on the merits. On the contrary, the purpose of the conference held in accordance with s 16 of the ERD Court Act is to ‘resolve the proceedings’ without resorting to a formal hearing. The ERD Court must, however, before recording a consent settlement, ensure that it is not inconsistent with a relevant Act. To make a consent order which is not within jurisdiction will generally, if not always, be inconsistent with a relevant Act. Even if that is not so, no order can be made which exceeds jurisdiction. However, in exercising the power conferred by s 16(7) of the ERD Court Act, the ERD Court will form that view on the face of the application, the settlement and perhaps a memorandum submitted by the parties and the relevant authority in particular. In this case, the ERD Court could properly take into account that SCAP had found that the development first proposed was not seriously at variance with the policies of the Development Plan. It could also have regard to the reductions in scale and mass which may address the grounds for the initial refusal of development plan consent.

12. Ultimately the ERD Court rejected South Esplanade’s submission that it had a right to have the settlement recorded for the following reasons:

    [86]As we have stated earlier in these Reasons, we do not accept that submission for three reasons. First, the right to record a settlement under s 16(7) is subject to s16(9) where the member of the Court presiding at the conference must refuse to accept a settlement in certain circumstances and may refuse to accept in other cases. Secondly, it is inconsistent with the statements made by Kourakis CJ in Carramatta Holdings that s 16 does not create a substantive right and the jurisdiction and power to make an order is found in other provisions of the Development Act, in this case, s 88. Thirdly, it is inconsistent with the decisions in O’Neill and Truenergy.

13. The first of the ERD Court’s three reasons is plainly right but as I have already observed, the Court erred in its construction and application of ss 16(7) and 16(9) of the ERD Court Act on the joinder application. For the reasons given in paragraph [67] above, the second reason is not sound. As to the third, the ERD Court was correct to proceed on the basis that it or should follow the decisions in O’Neill v Kimhi and Truenergy Renewable Development Pty Ltd v Regional Council of Goyder[16] (Truenergy).  However, I respectfully take a different view to Debelle J in O’Neill, noting as I have that Debelle J dealt only with the question of the retrospectivity of the order he made and did not address the subversion of the s 16(7) of the ERD Court Act by the joinder of a party who did not have a direct material interest. I am not bound by the decision of the ERD Court in Truenergy but again note that it did not address the critical question of construction which must be resolved if the power to join pursuant to s 17 of the ERD Court Act is not to outflank s 16(7) of the ERD Court Act.

    [16] [2013] SAERDC 11.

14. The ERD Court considered the scope of s 17 of the ERD Court Act in the following paragraphs:

    [87]A further preliminary matter as to how the Court should approach the application for joinder concerns the effect of s 17 of the ERDC Act. We accept, as South Esplanade has submitted, that s 17 has procedural effect and does not create substantive rights. That much is clear from the statement of Duggan J in Pitt that s 17 does not “deal with substantive rights but simply allows joinder as a party in order to exercise the limited role of presenting facts and adducing argument”.

    [88]South Esplanade submitted that the applicants for joinder are seeking to go beyond this limited role in withholding their consent to the settlement reached between the applicant and the Commission.  Again, we do not accept that submission.  It is implicit in the role of presenting facts and argument that the third parties may oppose a development and not accept a settlement.

    [89]The right to be joined does not create a de facto right of appeal in the applicants for joinder with respect to a Category 2 proposal.  That was made clear by Doyle CJ in Pitt in the passage that we quoted earlier in these Reasons.

    [Citations omitted]

15. In those paragraphs the ERD Court erred in transposing the statements in Pitt, which are securely anchored in proceedings which have not been settled to a case in which the parties to the appeal, as initially and properly constituted, have reached a compromise.  In the former case there is a controversy between at least two of the parties to the appeal, as initially and properly constituted.  In the circumstances of the litigation in Pitt the joinder was therefore, as Duggan J observed, a matter of procedure.  In those circumstances too, as Doyle CJ observed, joinder did not allow a de facto appeal to persons with no such statutory right. However, in this case, the joinder resulted in a transformation of the settled appeal proceeding which had been brought as of right by South Esplanade into a corrupted proceeding, not contemplated by the Development Act, in which the only controversy was between joinder applicants, who had no right of appeal against a consent given to a Category 2 development, on the one hand, and the proponent of the development and the relevant authority, who had reached and were bound by a compromise, on the other. The effect of the joinder is to metamorphose a settled appeal into a species of Category 2 development application heard at first instance in an adversarial judicial proceeding before the ERD Court in which the Category 2 representors appear with the full panoply of litigation rights and privileges available to them. The contrast with their restricted rights to be consulted by a relevant planning authority could not be greater.

16. The ERD Court was satisfied that the interveners had a sufficient interest to be joined.  The ERD Court had regard to considerations which the decision in Pitt established were generally relevant and material if South Esplanade and SCAP had not reached a settlement. However, two paragraphs of the ERD Court reasons are affected by a failure to consider the subsequently enacted s 88(2)(c) of the Development Act:

    [90] Having disposed of these preliminary matters, we must next consider whether each of the applicants for joinder have a sufficient interest in the decision under appeal to justify an order that they be joined as parties to the proceedings. Section 88(2) requires the applicants for joinder to have a special interest. In Pitt, Duggan J held that the applicants for joinder must show a genuine interest in the decision under appeal.  We do not consider that a special interest imposes a different standard than the genuine interest referred to by Duggan J in Pitt.  In each case, such an interest would arise if an order could be made on appeal that prejudicially and directly affected their interests.  That standard excludes mere meddlers or busybodies but does not require something in the nature of a special case.

    …

    [95]In O’Neill v Kimhi, Debelle J held that as a general rule an adjoining neighbour will always have a sufficient interest to justify joinder.

    [Citations omitted]

17. For the reasons given in [29] above, the statutory test for joinder in s 88(2)(c) of the Development Act must necessarily require something more than a genuine interest. There is no warrant for a judicial recasting of the required interest from one which is ‘special’ to one which is ‘genuine’. Those two words have very different meanings. Duggan J in Pitt was considering the broad terms of s 17 of the ERD Court Act and not s 88(2)(c) of the Development Act. For the reasons given in [75] I respectfully take a different view to that taken by Debelle J in O’Neill v Kimhi.

18. The ERD Court found that the applicants for joinder would make a contribution to the proper resolution of the two primary issues in the proceedings which were whether the Court had the power to approve the revised development proposal if it was fundamentally different to that initially proposed and considered by SCAP, and whether the development should be approved on its merits:

    [108]In relation to each of these issues, the applicants for joinder would make a contribution to the proper resolution of these proceedings.  In respect of the first issue, that contribution would largely involve submissions in relation to a comparison of the proposed development and the revised development.  If the applicants for joinder were not joined as parties to the appeal, the Court would not have the benefit of any submissions that the revised development was fundamentally different to the proposed development.  That issue goes to the jurisdiction of the Court to allow the appeal and approve the revised development.  Therefore, the Court, irrespective of the settlement between the applicant and SCAP, will have to determine this issue.  As Wells J held at first instance in Lady Becker (which was approved on appeal), the Board (and in the present case, the Court) would have not have power to approve a plan that was fundamentally different in character to the plan that gave rise to the appeal.  In such a case, the Board (or Court) would be asked to do something that it was not authorised to do.

    [109]As to the second issue, the applicants for joinder have indicated that they will call evidence and make submissions as to the merits of the development.  This evidence and submissions will be contrary to the evidence and submissions of South Esplanade and the Commission.  Again, the Court will benefit from the receipt of evidence and submissions propounding an alternative view.

19. The ERD Court’s error on the first issue was to ignore the purpose of s 16 of the ERD Court Act which is to explore a resolution ‘without a formal hearing’ and if so resolved, to apply ss 16(7) and 16(9). At most, the ERD Court might have permitted Category 2 representors to appear as interested persons in the summary proceeding envisaged by s 16(7) of the ERD Court Act on the issues raised by s 16(9), but the procedural step of joining them as parties subverted the proper application of s 16(7). The error in respect of the second issue was, as I have already laboured, to assume that there would be a hearing on the merits.

20. The ERD Court’s consideration of the effect on the settlement was as follows: 

    [113]Sixthly, the joinder of the applicants for joinder will obviously have a significant impact on the existing parties, South Esplanade and the Commission.  If no order as to joinder was made, there would be no opposition to the revised development and the settlement negotiated between South Esplanade and the Commission.  It can be expected, as we have stated above, that there will be a prolongation of the hearing with the attendant increased costs and time spent in prosecuting the appeal.  There can be expected to be a greater level of uncertainty about the result of the appeal.  We accept that the applicants for joinder will not be interested in settling the appeal.  However, these matters appear to us to be an inevitable consequence of any joinder.  That point was made by Doyle CJ in Pitt where he held:

    An order for joinder in favour of the appellants necessarily has an effect on proceedings before the ERD Court.  The interests represented in the proceedings are no longer confined to the applicant for planning approval and the planning authority.  But that is the inevitable consequence of any order for joinder.  The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join. 

    In my opinion the impact of an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made…

    [114]Unless the settlement were to act as an absolute bar to the joinder applications (which we do not consider to be the case), then this impact on the existing parties will always occur where the developer and the relevant authority have settled the dispute between them.  There is always a risk of refusal of a development or a contest as to whether the development should be permitted.  South Esplanade did not point to any unusual feature in these proceedings that made this impact upon the applicant a significant burden, other than perhaps the prolongation of the proceedings because of the number of parties.  As we stated earlier, the efficient conduct of the proceedings can be dealt with by appropriate directions by the Court.  In any event, it would appear to us to be a strange result if the applications of all joinder parties were to be refused because of the fact that there were a number of applications, when an application by one party would have been approved.

    [15]Seventhly, we accept that there is a public interest in the efficient disposition of proceedings.  We accept also the submission of South Esplanade that settlement is to be encouraged by the Court.  The public interest in the efficient conduct of the proceedings has manifested itself in the Rules of Court which have reaffirmed the importance of these principles and objectives in civil litigation generally.  In Aon Risk Services Australia Ltd v Australian National University, the High Court emphasised in the context of an amendment application in civil proceedings that the guiding principle in determining the application remained the just resolution of the proceedings, but that wider considerations must be considered in determining what is a just resolution of the proceedings.  Undue delay could undermine confidence in the rule of law and its avoidance, based on proper regard for the interests of the parties, transcends those interests.  Waste of public resources and the inefficiency caused by the need to revisit interlocutory processes, vacate or adjourn trials, may also transcend the interests of the parties.

    [16]In the present case, there has been no delay by the applicants for joinder in bringing their applications for joinder.  The just resolution of the dispute requires their involvement.  There has been no conduct on their behalf that could possibly be said to undermine the confidence in the rule of law and the proper administration of justice.

    [17]Eighthly, we have considered the impact of the settlement of appeal between South Esplanade and the Commission.  We have already alluded to this impact when discussing some of the other discretionary matters.  Clearly, the settlement is a relevant matter, but it cannot be elevated to a rule of law that precludes joinder in all cases where there has been a settlement.  In our view, the fact of the settlement must be considered in the context of the legislative scheme which requires interested parties who fall into Category 2 to be provided with copies of the proposed development and gives them the ability to make representations to the relevant authority and to apply to be joined to any appeal.  The ability for such persons to apply to join an appeal is a statutory right which recognises their interest in the proceedings under appeal.  As Doyle CJ held in Pitt, a narrow view should not be taken as to the right to join in an appeal.  Judge Cole stated in Truenergy none of the interested parties have had the opportunity to make representations about the revised development and it cannot be assumed that the revised development properly addresses their concerns about the development. 

    [18]There will be some cases where the fact of settlement between the developer and the relevant authority will assume greater weight.  For example, there may be cases where the case of the applicant for joinder is demonstrably weak or where it relates to only one narrow aspect of the proposed development.  Neither of these matters are relevant in the present case.  South Esplanade has not submitted that any of the applicants for joinder has a weak case or that their concerns are only very limited.

    [Citations omitted]

1. The approach of the ERD Court in those paragraphs conflates the relatively limited impacts of joinder on an appeal which is proceeding on the merits with the radical effect it has on the function conferred on the ERD Court by ss 16(7) and 16(9) of the ERD Court Act. It is not a matter of the settlement acting as an absolute bar to joinder. Persons notified of a Category 3 development must necessarily be joined because they are exempt from the requirements of placita (i), (ii) and (iii) of s 88(2)(c) of the Development Act and are persons with a direct and material interest. Persons notified of a Category 2 development are not, but their joinder will necessarily prevent the recording of a settlement which would otherwise be recorded. The public interest to be considered went beyond the way in which the joinder applicants had conducted themselves in the litigation. The public interest was in the proper exercise of the power to join in a way which is consistent with ss 16(7) and 16(9) of the ERD Court Act.

   Conclusion

2. For the above reasons I allow the appeal.  I set aside the joinders.  I will hear the parties as to consequential orders, and in particular on the question of the capacity of the applications to review the Category assigned to the development to affect the applications for joinder.