Fiora v Development Assessment Commission

The Supreme Court of South Australia, constituted by Vanstone, Blue, and Lovell JJ, heard an appeal by Mark Fiora against a decision of the Development Assessment Commission (DAC) and subsequently the Environment, Resources and Development Court. The dispute concerned the classification of Fiora's application for provisional development plan consent for a land division. Fiora sought to reconfigure eight allotments totalling 87 hectares into a different configuration of eight allotments within the Watershed (Primary Production) Zone of the Adelaide Hills Council Development Plan. The DAC classified the application as two separate developments: one involving a southern parcel of 36 hectares (three allotments to be redivided into two) and another involving a northern parcel of 9 hectares (one allotment to be redivided into two). This classification led to the application being deemed non-complying because the southern division created an additional allotment, contrary to a relevant exception in the Development Plan.

The central legal issue before the Court was whether the Judge erred in upholding the DAC's determination that Fiora's application constituted two discrete developments rather than a single composite development. This classification was critical because the Development Act 1993 (SA) imposes significant restrictions on non-complying developments, including limitations on appeals against refusals. The Court was required to assess the "essential nature" of the proposed development, as emphasised in *Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd*, to determine its compliance status.

The Court reasoned that the determination of whether a development is complying or non-complying requires an assessment of its nature, not merely how it is described in an application. Applying this principle, the Court considered factors such as the separate ownership of the parcels, their geographical distance, and the potential for one division to proceed independently of the other, despite a commercial contract linking them. The Court concluded that the "essential nature of the proposed development represents two discrete, independent land divisions," with one of these divisions creating an additional allotment. Therefore, the Court found that both the DAC and the Environment, Resources and Development Court were correct in treating the application as involving a non-complying development.

The appeal was dismissed. The Court affirmed that the classification of the development as non-complying did not equate to an absolute rejection but rather meant that consent was required under section 35(3) of the Development Act 1993 (SA).