City of Marion v Paior

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CITY OF MARION v PAIOR
[2013] SASCFC 77
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
15 August 2013
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CLASSIFICATION OF USES
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL
The first and second respondents, Mr and Mrs Paior, filed in the Environment Resources and Development Court an application for review under section 86(1)(f) of the Development Act 1993 (SA). The application was in respect of a decision by the appellant, the City of Marion, to categorise as Category 1 an application for development authorisation by the second respondents, Mr and Mrs Fleetwood. The Paiors sought declarations that the proposed development should have been categorised as Category 3 and consequential orders setting aside the development authorisation granted by the Council before the application for review was filed.
A Judge of the Environment Resources and Development Court held on the determination of a preliminary issue that the Court had power to make a consequential order setting aside the final development authorisation.
The City of Marion appeals against that decision, contending that the Court has no power to make such an order because:
1. the Court has no jurisdiction on an application for review of a categorisation decision to set aside a development authorisation subsequently granted;
2. alternatively, any such power no longer existed after the grant of development authorisation.
Held by the Court dismissing the appeal:
1. The Environment Resources and Development Court has power under section 88(1) of the Act on setting aside a categorisation determination to make a consequential order setting aside a development authorisation which was consequential upon the erroneous categorisation decision (per Gray J at [29]-[30], per Blue J at [54]-[58], (Sulan J at [32] agreeing)).
2. The Court’s jurisdiction to review a categorisation decision under section 86(1)(f) of the Act does not cease upon grant of development authorisation (per Gray J at [28], per Blue J at [59]-[62], (Sulan J at [32] agreeing)).
Acts Interpretation Act 1915 (SA) s 22; Development Act 1993 (SA) ss 3, 4, 6, 7, 32, 33, 34, 35, 38, 39, 40, 44, 45, 74, 85, 86, 88; Development Regulations 2008 (SA) s 16; Environment, Resources and Development Court Act 1993 (SA) s 7, referred to.
Baker v City of Norwood, Payneham and St Peters [2003] SASC 282; City of Burnside v Development Assessment Commission & Anor [2005] SASC 434, discussed.

CITY OF MARION v PAIOR
[2013] SASCFC 77
Full Court: Gray, Sulan and Blue JJ
GRAY J.

In proceedings in the Environment, Resources and Development Court, a preliminary question arose as to the jurisdiction of the Court under the Development Act 1993 (SA). The Judge determined that the Court had jurisdiction to quash a development approval or to make a declaration as to the validity of a development approval. The City of Marion has appealed against this decision.
Introduction
The first and second respondents are owners of adjacent properties. The second respondents, Christopher Allan Fleetwood and Deborah Anne Fleetwood, planned to build a two-storey detached dwelling with an associated in-ground pool and verandah on their property at 12 Westcliff Court, Marino. The first respondents, Alexander John Paior and Debra Lynne Paior, are adjacent property owners. Their property has a common boundary with the Fleetwoods’ property.
On 21 March 2011, a development application was lodged on behalf of the Fleetwoods with the City of Marion seeking approval for a detached dwelling. The City of Marion proceeded on the basis that the development application was a category one application. As a consequence, the relevant regulations did not require notice of the application to be given to any other person and, more particularly, did not require notice to be given to adjacent property owners. As a result, the Paiors did not receive notice of the development application.
On 21 December 2011, development plan consent, commonly referred to as planning approval, was granted by the City of Marion. On 6 August 2012, building rules consent, commonly referred to as building approval, was granted. On 14 August 2012, final development approval was granted by the City of Marion.
After the granting of final development approval, the Paiors applied to the Environment, Resources and Development Court for an order that the development approval be quashed. The Paiors only became aware of the development approval following the commencement of works on site. The Paiors assert that the proposed development, including the in-ground pool, would enable the occupant to overlook the Paiors’ property.
The Paiors’ application was made pursuant to Section 86(1)(f) of the Development Act, which provides:
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.
On 19 March 2013, the Judge addressed, with the agreement of the parties, a preliminary question concerning the jurisdiction of the Court to make the orders sought. The Judge concluded:[1]
[1]    Paior v The Corporation of the City of Marion [2013] SAERDC 10, [22].
The answer to the preliminary question is that the [Environment, Resources and Development Court] has jurisdiction under the Act to quash a development approval or to make a declaration that the development approval is invalid in proceedings brought pursuant to s 86(1)(f) of the Act.
The Judge reasoned:[2]
[2]    Paior v The Corporation of the City of Marion [2013] SAERDC 10, [16]-[22].
In cases where there is a finding, ultimately, that a development application was processed wrongly, because the wrong category was assigned to the proposed development, then it has generally been accepted that the consequence is that the development plan consent and the development approval which have followed that wrong processing are invalid. The incorrect assignment of Category 1 to a proposed development, when it should have been processed as Category 2, has the effect of depriving neighbours of the right to make submissions to the planning authority in relation to the proposed development (and thus, potentially influence the outcome of the development application). If the proposed development should have been assigned to Category 3, then a class of potential representors will be deprived, not only of an opportunity to make submissions to the planning authority, but also of the right to appeal to this Court. In City of Burnside v Development Assessment Commission & Anor, Debelle J said:
Generally speaking, where a planning authority has assigned an incorrect category to a proposed development, the consequence is that the grant of development consent will be quashed. However, the remedies, both of an order in the nature of a declaration and of certiorari are discretionary.
In Baker v City of Norwood, Payneham & St Peters, Debelle J’s conclusion was:
For the reasons expressed above, the proposed development was a Category 3 development. The Council has failed to act as required by s 38 of the Development Act. It follows that the provisional development plan consent granted on 11 December 2002 must be set aside.
It seems to me that proceedings initiated pursuant to s 86(1)(f) “relate” to a development plan consent and a development approval which have followed from the processing of the development application which is being challenged in the proceedings in the sense in which the word “relate” is used in s 88(1)(a) of the Act. The “matter” referred to in s 86(1)(f) of the Act seems to me to be the proposed development together with the processes relevant to it under the Act and the Development Plan. The s 86(1)(f) proceedings relate to that “matter” and the development plan consent and development approval are part of the subject matter of those proceedings. The orders provided for in s 88(1)(a) may be made in s 86(1)(f) proceedings. The powers in s 88(1)(da) may also be exercised by the Court in s 86(1)(f) proceedings. The Court in Turner acknowledged that:
… the effect of this decision is to make the taking of proceedings under section 86(1)(f), in circumstances where a Development Approval is already in place, largely illusory.
With great respect, it seems to me that it is unlikely that the legislature intended the combined effect of s 86(1)(f) and s 88(1) to yield that outcome. I note that the objects of the Act, in s 3 include:
(c)     to provide for the creation of Development Plans –
(i)to enhance the proper conservation, use, development and management of land and buildings; and
…
(iii)to advance the social and economic interests and goals of the community;
(e)     to provide for appropriate public participation in the planning process and the assessment of development proposals;
…
(f)    to enhance the amenity of buildings and provide for the safety and health of people who use buildings;
Having provided for an action in the ERD Court, the purpose of which is to determine whether a development application has been properly processed, I think that an interpretation of s 88 which permits a development plan consent and a development approval which has been found to be invalid to be dealt with by the ERD Court is the preferable interpretation. The powers in s 88(1)(e) of the Act and s 28 of the Environment, Resources and Development Court Act 1993 bear an interpretation which would make them available on the hearing of an application under s 86(1)(f), and that interpretation is preferable, bearing in mind the objects and scheme of the Act.
On the hearing of the appeal, counsel for the City of Marion accepted that this Court had jurisdiction to judicially review the decision of a Council with respect to the assignation of a development category. There was no challenge to the rulings of Debelle J in the City of Burnside v Development Assessment Commission[3] and Baker v City of Norwood, Payneham and St Peters.[4] However, it was contended, that the Environment, Resources and Development Court had no comparable jurisdiction, either by way of appeal or review.
[3] City of Burnside v Development Assessment Commission (2005) 142 LGERA 443.
[4] Baker v City of Norwood, Payneham and St Peters (2003) 127 LGERA 200.
Before coming to discuss the issues arising on this appeal, it is convenient to refer to the relevant statutory provisions.
Section 3 of the Development Act identifies the objects of the Act, to include:
…
(c)     to provide for the creation of Development Plans –
(i)    to enhance the proper conservation, use, development and management of land and buildings; and
…
(iii)     to advance the social and economic interests and goals of the community;
…
(e)to provide for appropriate public participation in the planning process and the assessment of development proposals; …
…
When a section is reasonably capable of an interpretation that promotes the purposes and objects of the Act, the court should prefer it to one that does not do so.[5]
[5] Section 22(1) of the Acts Interpretation Act 1915 (SA).
Section 32 of the Development Act provides that no development may be undertaken unless it is an approved development. An application for development approval is made pursuant to section 39.
Pursuant to section 35 of the Development Act and regulation 16 of the Development Regulations 2008 (SA), the City of Marion is required to determine the nature of the development and to proceed to deal with the application according to that determination. The City of Marion is also required to determine the categorisation of the proposed development pursuant to section 38 of the Development Act for the purposes of public notification. An application for Development approval is determined, and either approved or refused, pursuant to section 40.
Section 33(1)(a) and (b) of the Development Act provide that a development is an approved development if, and only if, consent is granted in respect of both the provisions of the relevant development plan and the provisions of the building rules. Section 33(4) provides that a development will be taken to be an approved development when all relevant consents have been granted and the relevant authority, in this matter, the City of Marion, has indicated that the development is approved.
Section 86 of the Development Act provides for specified applications to be made to the Environment, Resources and Development Court. That section relevantly provides:
(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.
(1a)   A right of review under paragraph (f) of subsection (1) does not limit or restrict the ability of an applicant for the relevant development authorisation to institute an appeal under paragraph (a) of that subsection.
(2)     Subsection (1) does not—
(a)derogate from any other provision of this Act that confers a right to apply to the Court in specified circumstances;
(b)derogate from any other provision of this Act that prevents or restricts a right to apply to the Court in specified circumstances.
...
(4)     An application must be made in a manner and form determined by the Court, setting out the grounds of the application, and, unless otherwise specifically provided under another provision of this Act, must be made within two months after the applicant receives notice of the decision to which the application relates unless the Court, in its discretion, allows an extension of time.
Section 86 is not exhaustive on the question of the jurisdiction of the Court. Jurisdictions may also be invoked, for example, pursuant to sections 6(4), 44, 45, 74(6) and 85 of the Development Act.
Section 88 of the Development Act provides the Environment, Resources and Development Court with broad powers:
(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;
(d)     if appropriate to the subject matter of the proceedings, order—
(i)that a building (or any part of a building) be altered, reinstated or rectified in a manner specified by the Court;
(ii)that a party to the dispute remove or demolish a building (or any part of a building);
(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);
...
The Appeal
As noted above, the issue for determination is whether the Environment, Resources and Development Court has jurisdiction, pursuant to section 86(1)(f) of the Development Act, to set aside or quash the development approval granted to the Fleetwoods on an application brought by their adjacent property owners, the Paiors.
The City of Marion submitted that the Court lacked jurisdiction to determine the validity of a development approval in proceedings brought pursuant to section 86(1)(f). It was pointed out that the Court only has statutorily conferred jurisdiction. Attention was drawn to section 7(1) of the Environment, Resources and Development Court Act 1993 (SA), which provides:
Subject to this section, the Court will have the jurisdiction (including the jurisdiction to try a charge of an offence) conferred on it by or under this or any other Act.
It was contended that the Court does not have jurisdiction in respect of matters that merely relate to or are ancillary to matters within its jurisdiction. It was said that, even if a development approval granted by the City of Marion could be regarded as being related to, or ancillary to a prior decision of the Council as to the nature or category of development, a development approval could not be called into question or be impeached in proceedings commenced pursuant to section 86(1)(f).

It was submitted that the jurisdiction conferred upon the Environment, Resources and Development Court pursuant to section 86(1)(f) is expressed to be in respect of only two matters, - decisions in respect to the nature of the development, including whether a development is a complying development, and decisions as to the category of development for the purposes of public notification.
It was emphasised that section 88 of the Development Act confers a range of powers, rather than jurisdiction, upon the Court. It was said that to analyse and attempt to determine the extent of the jurisdiction of the Court by reference to its powers was “to put the cart before the horse”. It was contended that if Parliament had intended the Court to have jurisdiction in the nature of judicial review, it would have so provided.
As earlier noted, final development approval was granted by the City of Marion on 14 August 2012. It was submitted that, after that date, there was no longer any proposed development for the purpose of section 86(1)(f), and that there was therefore no jurisdiction for the Paiors to invoke in respect of their purported application for review pursuant to section 86(1)(f). It was also submitted that, after that date, there was no longer any application for a development authorisation for the purpose of section 86(1)(f) as the application had already been determined and development approval issued.
In my view, for the reasons that follow, the submissions of the City of Marion should be rejected. I consider that the Judge was correct in her conclusions with respect to jurisdiction.
Section 86 of the Development Act identifies the different applications that can be made to the Environment, Resources and Development Court. The section differentiates between the different nature of the applications and their respective subject matters. For example, some applications are described as appeals, some relate to the determination of disputes and others involve reviews.
Section 86(1)(f) is to be construed and considered having regard to the purposes and objects of the Act, and in particular, as noted above, the purpose of providing for appropriate public participation in the planning process and the assessment of development proposals. Section 86(1)(f) enables the owner of adjacent land upon which a development is proposed, to have a say in the determination of that application. A person who can demonstrate a relevant interest can apply to the Court. Not all interests will qualify a person to make such an application. The interest in question must be relevant to the determination of an application for development authorisation by the relevant authority. The interest must arise by virtue of the person being the owner or occupier of land constituting the site of the proposed development, or an owner or occupier of adjacent land.
The category of development will govern whether an adjacent owner is given notice of the development proposal. It is important that people should have an opportunity to be heard on matters of town planning which may affect them. In the case of a category one development, the adjacent owner will not be made aware of the development at any time before final approval.
Broadly, the purpose of a section 86(1)(f)(ii) is to confer a right of review in the Environment, Resources and Development Court of a decision as to the category of a development. If the development is in a category which requires notice to be given to adjacent land owners, the Act provides that they may make representations and then receive notice of the decision of the relevant authority. In the case of a category 3 development, an adjacent land owner may, pursuant to section 86(1)(b), appeal against that decision.
Both parties accepted that if a categorisation does not entitle a person to notice of the development proposal, then there is no entitlement to make representations and no entitlement to receive notice from the relevant authority of a decision in respect of the development. It is this entitlement to notice from a relevant authority which gives a person standing to appeal under section 86(1)(b).[6] One evident purpose of section 86(1)(f)(ii) is to fill a lacuna in the scheme, a lacuna concerning persons who have not received notice of a development proposal.
[6] This gap in the legislation was acknowledged by a member of the Legislative Council during debate on the second reading of the Act which amended the Development Act inserting section 86(1)(f). The Member praised the proposed amendment for providing a method by which a person may apply for review of a decision as to the category of a development; South Australia, Parliamentary Debates, Legislative Council, 15 March 2007, 1668-1669.
Section 86(1)(f) allows a person to apply to the Court for a review of a matter. The person must be able to demonstrate an interest in the matter the subject of the review. Properly construed, the reference to “the matter” for review in section 86(1)(f) is reference to a development authorisation. The review is in relation to the two topics identified in section 86(1)(f)(i) and (ii), namely, the nature of the development and the category of the development.
As noted above, the City of Marion submitted that once final development approval has issued, there is no longer “an application for a development authorisation” for the purpose of section 86(1)(f). That phrase alone may suggest that the interest in question must be relevant to an application, such that once approval is granted, the application is no longer on foot and no relevant interest exists. However, the phrase is immediately preceded by “the determination of” and immediately followed by “by a relevant authority”. The interest in question must be relevant to the determination of an application by the relevant authority, rather than to the application itself. Thus a person whose interest is relevant to an application which has been determined is not prohibited from applying to a court under section 86(1)(f). This construction does not prohibit applications to court made prior to a determination.
Section 86 of the Development Act is directly linked to section 88. The former is concerned with an application to the Environment, Resources and Development Court and the latter addresses the remedial powers of the Court in dealing with an application. An application under section 86(1)(f) is “a proceeding under the Act”. The powers contained in section 88(1) may be exercised to give effect to the Court’s finding on a review under section 86(1)(f).
The Environment, Resources and Development Court has jurisdiction under the Development Act in the proceedings brought by Mr and Mrs Paior pursuant to section 86(1)(f) to quash the development approval or to make a declaration that the development approval is invalid.
Conclusion
I would dismiss the appeal.
SULAN J.
I would dismiss the appeal. I agree with the reasons of Gray J and Blue J.
BLUE J.
The City of Marion appeals against a decision by a Judge of the Environment, Resources and Development Court (“the Court”) on a preliminary issue concerning the jurisdiction and powers of the Court to review a decision by a relevant authority concerning classification under section 35 or categorisation under section 38 of the Development Act 1993 (SA) (“the Act”) of a proposed development.
On 21 March 2011, the second respondents, Mr and Mrs Fleetwood, lodged with the City of Marion an application for development authorisation to construct a two-storey house.
The Council categorised the proposed development under section 38 of the Act as Category 1. As a result, the Council did not seek the views of adjacent owners in relation to the application and the first respondents, Mr and Mrs Paior, did not become aware of the application.
On 14 August 2012, the Council indicated under section 33(4) of the Act that the development was approved. This constituted development authorisation under the Act.[7]
[7] The Act generally uses the term “development authorisation”. Where it refers to an “approved development,” such as in sections 32 and 33, it refers to a development which has been the subject of development authorisation. I treat the two terms as interchangeable for the purposes of my reasons for judgment.
On 7 November 2012, the Paiors filed in the Court an application for review under section 86(1)(f) of the Act in respect of the classification by the Council of the proposed development as complying under section 35 and consequential categorisation as Category 1 under section 38 of the Act. In those proceedings, the Paiors seek declarations that the proposed development should have been categorised as Category 3. On that basis, they seek a consequential order setting aside the final development authorisation granted by the Council on 14 August 2012.
The Council contends on appeal that:
1.when the application for review was lodged on 7 November 2012, the Court had no jurisdiction under section 86(1)(f) of the Act because, on its proper construction, jurisdiction existed only before the grant of final development authorisation;
2.alternatively, the Court has no jurisdiction on a section 86(1)(f) application for review to set aside a development authorisation.
The Judge at first instance decided the question raised by the Council’s second contention adversely to the Council. The first contention was not put at first instance, but no objection was taken to its being raised for the first time on appeal.
The relevant facts are set out in the reasons for judgment of Gray J.
The development authorisation regime under the Act
In general terms, development cannot be undertaken within the State unless a relevant authority has assessed the development against the appropriate development plan and building rules, granted development plan and building rules consent and indicated that the development is approved.[8] A request for development authorisation in relation to a proposed development within the area of a council must be made by formal application to the relevant council[9] in compliance with section 39(1).[10]
[8] Development Act 1993 (SA) ss 32, 33(1) and 33(4).
[9] The provisions described below apply equally to all relevant authorities, but I refer to councils because this appeal only involves a council.
[10] Development Act 1993 (SA) ss 34 and 39.
Upon receipt of a development authorisation application, a council is required by section 35 to assess the proposed development as either a complying, non-complying or merit development. The assessment has both substantive and procedural consequences. The substantive consequences include that in general terms a development assessed as complying must be granted development plan consent; and a development assessed as non-complying must not be granted development plan consent if seriously at variance with the relevant development plan and otherwise without the concurrence of the Development Assessment Commission or a Regional Development Assessment Panel. The procedural consequences include that, if classified as non-complying, no appeal lies against a refusal of consent or a condition attached to consent.
At the same time, a council is required by section 38 to categorise the development as a Category 1, 2A, 2 or 3 development.[11] The categorisation has procedural consequences. They include the existence and level of any obligation by the council to give notice to, and hear representations by, adjacent owners, other interested persons and the public. They also include the existence of rights of appeal against a decision by the council to approve or attach conditions to a development.
[11] Development Act 1993 (SA) s 38.
Section 86(1) simultaneously confers rights of appeal in respect of decisions on development authorisation applications and confers jurisdiction on the Court to hear and determine such appeals. A right of appeal is generally conferred on an applicant for development authorisation against a refusal to grant or the imposition of conditions in relation to authorisation. As observed above, no right of appeal is conferred on an application against a refusal of consent or condition attached to consent in respect of a non-complying development.[12]
[12] Development Act 1993 (SA) s 86(1)(a).
A right of appeal is conferred on an objector who had made representations to the council in relation to the application where categorised as Category 3.[13] No right of appeal is conferred on objectors in respect of Category 1, 2 or 2A development applications and no right of appeal is conferred on persons who do not make representations to the council regardless of the category.
[13] Development Act 1993 (SA) ss 38(12)(a) and 86(1)(b).
On an appeal against a decision to refuse, grant or impose conditions in relation to a development authorisation, the Court has power to confirm, vary or reverse the decision.[14]
[14] Development Act 1993 (SA) s 88(1)(a).
Section 86(1)(f) confers a right to apply for review of, and confers jurisdiction upon the Court to review, a preliminary decision by the council as to classification under section 35 and categorisation under section 38. The right to apply for a review is conferred upon the owner or occupier of land constituting the site of the proposed development and upon an adjacent owner or occupier. The right of review conferred upon the former does not limit or restrict that person’s right to appeal against a decision to refuse, or the imposition of conditions in relation to, development authorisation.[15]
Power on review to quash development approval
[15] Development Act 1993 (SA) s 86(1a).
It is convenient to address the Council’s second contention first, being the contention advanced before the Judge at first instance.
The Judge held that, on an application for review of a preliminary decision under section 86(1)(f), the Court has power under section 88(1) to set aside a development authorisation which is consequential upon the preliminary decision the subject of the review. The relevant reasoning of the Judge is set out in the reasons for judgment of Gray J.
Section 86 provides:
(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.
(Emphasis added)
The Council contends that there is a dichotomy between rights of appeal conferred by section 86(1)(a) and (b) and a right of review conferred by section 86(1)(f). Rights of appeal are conferred against the final decision granting, refusing or imposing conditions on a development authorisation; whereas a right of review is conferred in respect of what is only an interim and preliminary step towards such a decision, namely classification under section 35 and/or categorisation under section 38.
The Council points to the fact that the subject matter of a review under section 86(1)(f) is “the matter” which is expressed to be “a matter that is relevant to the determination of an application for a development authorisation”. The Council contends that “the matter” which is the subject of the review is not the final determination of the development authorisation application but rather a matter which is preliminary or ancillary to the final determination.
Section 88(1) of the Act provides:
(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;
(d)     if appropriate to the subject matter of the proceedings, order—
(i)that a building (or any part of a building) be altered, reinstated or rectified in a manner specified by the Court;
(ii)that a party to the dispute remove or demolish a building (or any part of a building);
(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.
The Council identifies paragraphs (da) and (e) as being the most apposite to give the Court power to set aside a development authorisation upon an application for review of a classification or categorisation decision. However, the Council contends that such an order could not be regarded as consequential on or ancillary to a determination by the Court that the proposed development was wrongly classified or categorised because the latter is ancillary to the former. The Council also contends that the general power to grant any remedy or relief as the Court thinks fit cannot be used to address a different and subsequent step in the development authorisation process, namely the final development authorisation itself. Both contentions should be rejected for the following reasons.
The manifest intent of section 86(1)(f) is twofold. First, it gives to a person who will have a right of appeal against the ultimate decision on an application for development authorisation (such as the applicant for development authorisation) an ability to challenge a preliminary step in that process, namely the council’s classification and categorisation of the development. Secondly, it gives to a person who would otherwise be deprived of a substantive right of appeal against the final development authorisation decision by the council a right to review a preliminary decision which is capable of wrongly depriving that person of such right of appeal.
As outlined above, classification and categorisation decisions have a vital effect upon the subsequent procedures adopted by a council in assessing and determining the development authorisation application. It would defeat the purpose of conferring the right of review if, where a council had subsequently granted development authorisation, the Court only had power to make an ineffectual order setting aside the preliminary decision as to classification or categorisation but had no power to set aside the development authorisation granted as a result of that erroneous preliminary classification or categorisation decision. This is especially so when a council categorises a development as Category 1 because any potential objector is unlikely to learn of the categorisation until after final development authorisation has been granted.

Section 88(1)(e) is expressed to empower the Court to make any consequential order that it considers necessary or expedient. An order setting aside a development authorisation granted in consequence of an earlier erroneous preliminary classification or categorisation decision falls squarely within the concept of a consequential order. The position would be different if the ground advanced to set aside the development authorisation had no connection with the Council’s classification or categorisation decision. This is because it could not then be said to be “consequential.” However, where the applicant for review has been wrongly deprived of representation or appeal rights as a result of the preliminary classification or categorisation decision, an order setting aside the final development authorisation is clearly consequential.
For similar reasons, an order setting aside a development authorisation in such circumstances also falls within the concept of the grant of “any other remedy or relief as the Court thinks fit” within the meaning of section 88(1)(da).
Temporal limitation on jurisdiction
The Council’s other contention on appeal is that the right of review conferred by section 86(1)(f) is conferred only in respect of a “proposed” development. Once development authorisation has been granted, the development ceases to be “proposed” and accordingly the Court has no jurisdiction to entertain the application for review. The Council also contends that the requirement that the applicant seeking review demonstrate an interest in a “matter that is relevant to the determination of an application for a development authorisation” connotes that the application has not yet been determined by the council. Both contentions should be rejected for the following reasons.
Ex hypothesis, where the council categorises a development as Category 1, there will be no notice given or invitation made for representations to adjacent owners or occupiers. They are likely to remain ignorant of the categorisation decision until after development authorisation is granted. There is no evident purpose in the legislature confining the right of review in the temporal manner contended by the Council. On the contrary, such a construction would in many cases effectively abrogate the right of review ostensibly conferred by section 86(1)(f).
The word “development” is defined by section 4(1) of the Act to mean, inter alia, building work which in turn is defined to mean, inter alia, work or activity in the nature of the construction of a building. The application by the Fleetwoods for development authorisation was in respect of building work. A development in the nature of building work is still aptly described as a “proposed” development even after development authorisation has been granted. More importantly, the subject matter of a review under section 86(1)(f) is a preliminary decision by the council as to the classification or categorisation of the development. At the point at which that decision is made, ex hypothesis the development is only a “proposed” development (in the sense that the Council contends that those words are used) because no development authorisation will yet have been granted.
It follows that, when section 86(1)(f) uses the term “proposed development”, it is using that term in relation to the preliminary decision. It is not using the term to impose a temporal limit on the application for review. The same applies to the phrase “matter that is relevant to the determination of an application for a development authorisation”.
Conclusion
The Court has jurisdiction and power to set aside the development authorisation granted on 14 August 2012 if the preliminary decision as to categorisation by the Council was wrong and that wrong decision led to development authorisation being granted.
The appeal should be dismissed.

[2013] SASCFC 77

15 August 2013

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