Hoff v City of Mitcham

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HOFF & ANOR v CITY OF MITCHAM & ORS
[2016] SASCFC 3
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
11 February 2016
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - OBJECTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF OBJECTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - GENERAL MATTERS - INFORMATION PROVIDED BY AUTHORITIES - GENERALLY
The proponents of a property lodged an application with the City of Mitcham for the construction of a two storey dwelling with an undercroft garage/store, cellar, privacy screen and front masonry fence. The development was assigned by the Council to Category 2.
The appellants home was adjacent to the land on which the development was proposed. Notice was given to the appellants of the development in accordance with s 38(4) of the Development Act 1993 (SA).
The appellants sought a declaration that the development was incorrectly categorised as a Category 2, and should have been declared a Category 3 development.
Section 86(4) of the Development Act 1993 (SA) prescribes a limit of two months to bring an application for review of a categorisation of a proposed development. The primary issue before the Judge, and on appeal, was whether time runs from when a categorisation decision is made or from the final determination of the planning application.
Held per Kourakis CJ (Bampton and Parker JJ agreeing), dismissing the appeal:
1. Time runs from when the categorisation decision is made.
2. The application for review was made out of time.
Development Act 1993 (SA) s 35, s 38, s 38(4), s 86(1), s 86(4), s 88; Development Regulations 2008 (SA) reg 16, reg 33, reg 42, referred to.
City of Marion v Paior (2013) 117 SASR 223, considered.

HOFF & ANOR v CITY OF MITCHAM & ORS
[2016] SASCFC 3
Full Court: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: This is an appeal against the decision of a Judge of the Environment, Resources and Development Court of South Australia (the ERD Court) dismissing an application for review brought by Mr and Mrs Hoff (the applicants) of the City of Mitcham’s (Mitcham) categorisation of a development proposal submitted by Ms Aitken and Mr Tredidga (the proponents) on the ground that the application was brought out of time. The applicants’ home was adjacent to the land on which the development is proposed.
Section 86(4) of the Development Act 1993 (SA) (the Development Act) prescribes a limit of two months to bring an application for review of a categorisation of a proposed development. The primary issue before the Judge, and on appeal, is whether that time runs from when a categorisation decision is made or from the final determination of the planning application.
I would hold that the time runs from when the categorisation decision, against which the review is brought, is made and I would therefore dismiss the appeal. My reasons follow.
The Application
On 18 February 2014 the proponents lodged a Development Application with Mitcham for the construction of a two storey dwelling with an

“under croft garage/store, cellar, privacy screen and front masonry fence” (the development). On 8 April 2014 Mitcham notified the applicants that an application for approval for the development had been made. As will shortly be seen, the provision of that notice was mandated by s 38(4) of the Development Act. The notice complied with reg 33 of the Development Regulations 2008 (SA) (Development Regulations) in that it described the nature of the proposed development. It identified the land which was to be developed and indicated where the application could be inspected. In its notice Mitcham described the development as “Category 2” and informed the applicants that “no right of appeal against a Council’s decision on a Category 2 Development exists”. The notice did not, and was not by any regulation required to, inform the applicants of their right to review the categorisation decision.
It was accepted before the Judge that the author of the letter was an authorised delegate of Mitcham.
On 22 April 2014 the applicants lodged a representation with Mitcham opposing the development and on 24 April 2014 elaborated on the reasons for their opposition.
On 30 April 2014 Mitcham acknowledged receipt of their representations in a letter which described its subject matter as “Proposed Category 2/3 Development”. There is no reason given in the evidence for the reference, in Mitcham’s acknowledgement, to a Category 3 development. However, it can be seen on the face of the acknowledgement that it is expressed in generic terms which render it applicable as a pro forma acknowledgement of submissions received on either a Category 2 or Category 3 development application.
On 25 June 2014 Mitcham sent to the applicants the proponents’ response to their objections. The response included a report from a town planner which referred to the fact that the proponents’ application had “undergone Category 2 notification procedures”.
On 27 October 2014 Mitcham notified the applicants of the date and time on which the proponents’ development application was to be heard by Mitcham’s Development Assessment Panel (DAP). The applicants made oral submissions in support of their representations at the DAP meeting on 6 November 2014, in which they contended that the development should be a “Category 3 and not Category 2”.
On 12 November 2014 Mitcham notified the applicants of its decision made on 6 November 2014 granting Development Plan Consent (DPC). Section 38(12) of the Development Act mandated the giving of the notice of the decision to the applicants because they were persons who had made representations under s 38 of the Development Act. The regulations do not prescribe a form for the purposes of s 38(12). Mitcham gave notice by way of a letter informing the applicants that, after taking into account all relevant matters, it had made a decision on the proposed development application. The letter attached a copy of the development plan consent which Mitcham had provided to the proponents in accordance with reg 42 of the Development Regulations. That notice was in the form prescribed by the Minister for that purpose in accordance with reg 42 of the Development Regulations. The notice sent by Mitcham to the proponents, and copied to the applicants, also included some general advice about appeal rights against its planning decision as required by reg 42 of the Development Regulations and the prescribed form. There is no complaint about the inclusion of that information. However, for present purposes it is important to note that there is no statutory requirement to inform the proponents or persons making representations on the proposed development of the categorisation of the proposed development when notifying them of the ultimate planning decision on the development application pursuant to s 38(2) of the Development Act.
On 2 January 2015 the applicants filed an application in the ERD Court for review of Mitcham’s decision to treat the applicants’ proposed development as a Category 2 development.
The Statutory Scheme
The applicable provisions of the Development Act are:
35—Special provisions relating to assessment against Development Plan
(1)If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the relevant Development Plan and subject to any other provision made by this Act or applying under the regulations).
…
(1b)A development that is assessed by a relevant authority as being a minor variation from complying development may be determined by the relevant authority to be complying development (and that determination will then have effect for the purposes of this Act).
(1c)If a proposed development meets all but 1 criteria necessary for the development to be complying development, the aspect or aspects of the development that are consistent with the development being complying development must be regarded accordingly and the balance of the development will be assessed as merit development.
…
(2)Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
(3)A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a development plan consent unless—
(a)     where the relevant authority is the Development Assessment Commission—the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;
(b)     in any other case—
(i)unless subparagraph (ii) applies—the Development Assessment Commission;
(ii)in prescribed circumstances—a regional development assessment panel,
concurs in the granting of the consent.
…
(5)A proposed development that does not fall into a category of development mentioned in a preceding subsection will be merit development (and any such development must be assessed on its merit taking into account the provisions of the relevant Development Plan).
…
38—Public notice and consultation
(1)Subject to this section, there will be 4 categories of development for the purposes of this section—
(a)     Category 1 development; and
(ab)   Category 2A development; and
(b)     Category 2 development; and
(c)     Category 3 development.
(2)Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to these categories:
(a)     the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan—
(i)if the regulations provide that an assignment by a Development Plan may prevail—the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail (subject to the operation of paragraph (b)); but
(ii)in any other case—the assignment provided by the regulations will, to the extent of any inconsistency, prevail;
(b)     the regulations may assign a form of development to Category 2A and this will prevail to the extent of any assignment provided by a Development Plan under paragraph (a);
(c)     any development that is not assigned to a category under paragraph (a) or (b) will be taken to be a Category 3 development for the purposes of this section.
…
(3)Where a person applies for a consent in respect of the Development Plan for a Category 1 development—
(a)     the relevant authority must not, on its own initiative, seek the views of the owners or occupiers of adjacent or other land in relation to the granting or refusal of development plan consent; and
(b)     the following provisions of this section do not apply.
(3a)Where a person applies for a consent in respect of the Development Plan for a Category 2A development—
(a)     the relevant authority must—
(i)subject to any exclusion or qualification prescribed by the regulations—give an owner or occupier of each piece of adjoining land; and
(ii)give any other person of a prescribed class,
notice of the application; and
(b)     the relevant authority must—
(i)give consideration to any representations in writing made in accordance with the regulations by a person who is entitled to be given a notice under paragraph (a); and
(ii)forward to the applicant a copy of any representations that the relevant authority must consider under subparagraph (i) and allow the applicant an opportunity to respond, in writing, to those representations within the period prescribed by the regulations; and
(c)     if a representation is received under paragraph (b) within the prescribed number of days, the relevant authority may, in its absolute discretion, allow the person who made the representation to appear personally or by representative before it to be heard in support of the representation.
(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.
(6)Except as otherwise provided by the regulations, the subject matter of—
(a)     any notice required under this section; or
(b)     any representations under this section; or
(c)     any appeal against a decision on a Category 3 development by a person entitled to be given notice of the decision under subsection (12),
must be limited to the following:
(d)     what should be the decision of the relevant authority as to development plan consent;
(e)     in a case where a prescribed body is empowered to direct that the application be refused, or that conditions be imposed in relation to the development—what should be the decision of the prescribed body in response to the application.
(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.
(8)The relevant authority to which the application is made must forward to the applicant a copy of the representations made and allow the applicant an opportunity to respond, in writing, to those representations.
(9)The response referred to in subsection (8) must be made within the prescribed number of days after the relevant material is forwarded to the applicant.
(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.
(11)If a person appears before the relevant authority under subsection (10), the relevant authority must also allow the applicant a reasonable opportunity, on request, to appear personally or by representative before it in order to respond to any relevant matter.
(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.
(13)A notice under subsection (12) must be given within five business days from the date of the decision on the application.
(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.
(15)If an appeal is lodged against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12)—
(a)     the applicant for the relevant development authorisation must be notified by the Court of the appeal and will be a party to the appeal; and
(b)     in a case where the decision of a prescribed body in response to the application for the development authorisation could be a subject matter of such an appeal—the prescribed body will be a party to the appeal.
(16)A decision of a relevant authority in respect of a Category 3 development in respect of which representations have been made under this section does not operate—
(a)     until the time within which any person who made any such representation may appeal against a decision to grant the development authorisation has expired; or
(b)     where an appeal is commenced—
(i)until the appeal is dismissed, struck out or withdrawn; or
(ii)until the questions raised by the appeal have been finally determined (other than any question as to costs).
(17)Where a relevant authority is acting under this section in relation to a Category 2A or Category 2 development, a representation made by a person who is not entitled to be given notice of the relevant application under this section is not required to be taken into account under this section and will not have effect for any relevant purpose under this section.
(18)In addition, a representation that is not made in accordance with any requirement prescribed by the regulations for the purposes of this section is not required to be taken into account under this section and will not have effect for any relevant purpose under this section (including, in the case of a Category 3 development, in connection with the operation of subsection (12)).
…
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.
(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.
…
(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.
…
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;
(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);
(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 section 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.

It is also necessary to set out the following provisions of the Development Regulations –
16—Nature of development
(1)If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
(2)If the relevant authority is of the opinion that an application relates to a kind of development that is described as non‑complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.
(3)If an application in relation to a proposed development identifies the development as residential code development or designated development and the relevant authority is of the opinion that the development is residential code development or designated development, the relevant authority must, within 5 business days of receipt of the application, by notice in writing, inform the applicant of that fact.
(4)If an application in relation to a proposed development identifies the development as residential code development or designated development, but the relevant authority is of the opinion that the development is not residential code development or designated development, the relevant authority must, within 5 business days of receipt of the application, by notice in writing, inform the applicant of that fact and the reasons for the relevant authority's opinion.
(5)In this regulation—
designated development means development that falls within the ambit of any of clauses 3 to 9 (inclusive) of Schedule 1A.
33—Giving of notice
(1)A notice required under section 38(4) or (5) of the Act must—
(a)describe the nature of the proposed development; and
(b)identify the land on which the development is proposed; and
(c)if applicable, state that the proposed development is a non‑complying development under the relevant Development Plan; and
(d)indicate where and when the relevant application may be inspected, and with whom, and the time by which, any relevant representations may be lodged.
(2)A notice under section 38(5)(c) of the Act may be given by publishing a copy of the notice in a newspaper circulating generally throughout the area of the State in which the relevant land is situated on at least 1 occasion.
Discussion
Section 35 of the Development Act, which governs the assessment of proposed developments by planning authorities, including Councils, appears to require a number of decisions to be made as to the nature of proposed developments for the purposes of determining whether to give a development plan consent in accordance with that section. The determinations required on the face of s 35 of the Development Act are:
·Whether the proposed development is a complying development in which case consent must be granted (s 35(1) of the Development Act).
·Whether the proposed development is a minor variation from a complying development in which case planning consent must again be given (s 35(1b) of the Development Act).
·Whether the proposed development meets all but one of the criterion necessary for the development to be a complying development in which case the aspects of the development which are consistent with a complying development must be treated accordingly and the balance assessed on their merits (s 35(1c) of the Development Act).
·Whether a proposed development is seriously at variance with the relevant development plan in which case consent must not be granted (s 35(2) of the Development Act).
·Whether the proposed development is a non-complying development in which case development plan consent must not be granted unless the conditions prescribed by s 35(3) of the Development Act are met.
·Whether the merits of any other development not dealt with by other subsections of s 35 of the Development Act warrants development plan consent pursuant to s 35(5) of the Development Act.
The applicant submits that the application of the Development Act does not involve the making of administrative decisions by planning authorities on the matters identified by s 35 of that Act. It contends instead that if challenged the validity of a planning decision depends on the matters so identified being established to the satisfaction of the Court before which the challenge is brought. The same submission was made as to categorisation of decisions pursuant to s 38 of the Development Act.
That submission must be rejected for many reasons over and above the most obvious that it would subject planning decisions to radical uncertainty and reduce to nought the benefits derived from establishing expert planning tribunals.
First, it is plain from the text, structure and context of the Development Act that it establishes an administrative scheme for the determination of development applications. It is in the nature of administrative schemes that administrators will be called upon to decide on the application of the law to the facts and circumstances of the matters they administer. Their decisions remain administrative and they do not exercise judicial power, which necessarily has consequences on the legal force and finality of their decisions, but they nonetheless have the responsibility of ascertaining and applying the law bearing on their administrative duties.
Secondly, s 35(1b) of the Development Act expressly recognises that which is implicit in the passive voice of that section’s other provisions, namely that the relevant planning authority proceeds by making decisions on the nature of the development.
Thirdly, reg 16 of the Development Regulations expressly charges planning authorities with the obligation to make a determination about the nature of a development.
Fourthly, the schedules of the Development Regulations which affect the definitions of the kinds of development referred to in s 35 of the Development Act occasionally refer to opinions formed by the relevant planning authority.
Fifthly, the scheme for notification established by s 38 necessarily contemplates a decision as to category according to which the differentially prescribed steps can be taken. Clause 3(b) of Schedule 9 expressly defines a certain kind of category development by reference to the opinion of a planning authority.
Finally, s 86(1)(f) could not, as it purports to do, allow for reviews of categorisation decisions if they were not administrative decisions.
I conclude therefore that the decisions which I have identified above are, in the words of s 86(1)(f) of the Development Act, decisions made “under the Act as to the nature of the development, including any decision that is relevant to the operation of s 35” or decisions “under section 38 as to the category of development”.
Before turning to consider the proper construction of s 86(1)(f) of the Development Act in further detail it is important to observe that the proponent for a development may appeal to the ERD Court against any assessment decision, request or act of a planning authority pursuant to s 86(1)(a) of the Development Act. The right of appeal is wide enough to include decisions made in the course of, and before, the final determination of a development application. It includes therefore a right to appeal against a categorisation decision. Insofar as s 86(1)(f) of the Development Act duplicates the rights of appeal conferred on proponents by s 86(1)(a) of the Development Act, s 86(1a) ensures that the right of appeal given by subparagraph (f) does not restrict the fuller right given by s 86(1)(a).
A person who is entitled to be given a notice of a decision in respect of a Category 3 development may, by s 86(1)(b) of the Development Act, appeal to the Court against that decision. The decision, notice of which must be given in accordance with s 38(12) of the Development Act, is the ultimate decision on the development application. The owner or occupier of land adjacent to land on which a Category 3 development is proposed must be given notice of the application pursuant to s 38(5) of the Development Act and must be given notice of the the ultimate decision pursuant to s 38(12) of the Development Act.
The appeal by a person who has been given statutory notice of the ultimate planning decision is limited to the matters prescribed by s 38(6)(d) of the Development Act, namely, as to what the decision of the relevant authority should have been as to development plan consent or the conditions of that consent. The appeal conferred on representors by s 86(1)(b) of the Development Act therefore does not extend to all decisions made in the course of determining an application.
From that context it appears that the purpose of the right of review conferred by s 86(1)(f) of the Development Act is to afford certain persons a right of review of procedural determinations taken in dealing with a development application. The procedural determinations subject to review pursuant to s 86(1)(f) are expressed more narrowly than the determinations which a proponent may appeal pursuant to s 86(1)(a) of the Development Act. That was the view taken by Blue J in City of Marion v Paior (Paior)[1]. Blue J summarised the purpose of s 86(1)(f) in this way:[2]
The manifest intent of s 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...
(underlining added)
[1] (2013) 117 SASR 223.
[2] Ibid at [55]-[56].
For the reasons I have given in [24], the proponent of a development need not have recourse to s 86(1)(f) of the Development Act because of the wide terms of s 86(1)(a). On the other hand the right of appeal conferred by s 86(1)(b) of the Development Act is much narrower and a person who is entitled to make representations on a Category 3 development would therefore need to invoke s 86(1)(f) of the Development Act to review decisions of the kind identified in (i) and (ii) of that subparagraph. Owners of the land on which the development is proposed, and persons having no right of appeal against the planning consent itself are necessarily thrown on s 86(1)(f) of the Act if they wish to review a procedural step.
The purpose of the subject clause of s 86(1)(f) of the Development Act is to identify those persons who may bring an application for review against either of the two kinds of decisions described in clauses (i) and (ii) of that subsection. The persons so identified are those who “can demonstrate an interest in a matter that is relevant” to the determination of a development application and those persons may apply for a review of “that matter” with respect to either one of the two kinds of prescribed preliminary decisions.
There must therefore be an identity between the word matter where it first appears in s 86(1)(f) of the Development Act and where it last appears. That matter is a controversy over the application of a particular provision of the Development Act which is determined by the assignment of a category (s 86(1)(f)(ii)) or a decision made pursuant to s 35 (s 86(1)(f)(i)). The “matter” is therefore a particular aspect of the development application and not the application generally. The provision of the Development Act, and the underlying factual matrix resolved by that decision, will vary depending on whether the applicant is an owner or occupier of the land on which the development is proposed or an owner or occupier of adjacent land. The former may have an interest in some matters which the latter does not. Indeed, the matters in which an owner or occupier of adjacent land may have an interest may vary depending on whether the proposed development is a Category 1, 2 or 3 Development. It is not surprising therefore that the interests of the owner occupiers of both the development site and of neighbouring properties in the planning authority’s categorisation is expressly recognised by s 86(1)(f)(ii) of the Development Act. The matter which is to be reviewed by a court pursuant to an application brought pursuant to sub-paragraph (f) is the matter in which the person has demonstrated an interest. It follows that the relevant matter will not always be the ultimate decision granting, qualified or unconditional, consent or refusing consent. A person neighbouring a Category 2 development has an interest in the proper characterisation of that development as a Category 2 development, and not a Category 1 development, so that he or she may make submissions. It is the matter of the categorisation and not the merits of the planning consent that is the relevant matter to be reviewed pursuant to s 86(1)(f).
If it were otherwise, s 86(1)(f) of the Development Act would grant an unrestricted right of review of the ultimate planning decision to neighbours of Category 3 developments and grant rights of review against those decisions to neighbours of Category 2 developments. That result would undermine the express conferral of a right of appeal against the grant of planning consent only on those persons who had made a representation on a Category 3 development proposal. The implications which flow from that express and limited conferral of rights of appeal is that persons who are entitled to be notified of a Category 2 development do not have a right of appeal against the planning consent itself.
Even if “matter” were to be more widely defined, ultimately the right to apply for a review is limited to:
(i)a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of s 35; and
(ii)a decision under s 38 as to the category of the development.
Section 86(1)(f) of the Development Act does supplement the review rights of persons who are entitled to be given notice of a planning decision pursuant to s 38(12) of the Development Act by allowing them to bring an application for a review against the categorisation, and some other determinations, before the planning decision is finally made.
The applicant contends that the decision of this Court in Paior supports its contention that the subject matter of an application pursuant to s 86(1)(f) of the Development Act is the final planning consent determination.
In Paior the applicants sought to review a decision of the City of Marion assigning a development to Category 1 and contended that the development should have been assigned to Category 3. The applicants also sought a declaration setting aside the Council’s final development authorisation. The Council argued that the ERD Court did not have jurisdiction, on an application for review of a decision as to the appropriate Category, to set aside a development authorisation subsequently granted. The issue in Paior was fundamentally different to the issue which arises in this case. In Paior there was no dispute over the time in which the application for review must be brought. The question was whether on an application to review a categorisation decision, the ERD Court could set aside a planning consent that had already been given. The answer to that question lies in the statutory powers conferred on the ERD Court on the hearing of appeals and reviews brought before it.
Section 88 of the Development Act provides that the Court may, on hearing any proceedings under the Act, confirm, vary, or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceeding relates or any notice or other authority that has been issued under the Development Act. It follows that even when the application before the court is one for review of a preliminary step brought pursuant to s 86(1)(f) of the Development Act, the Court has the power to set aside the final decision on planning consent if that decision has been made before the Court determines the review of the preliminary step.
In Paior, in support of the proposition that the court could set aside the planning consent, Gray J said:[3]
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 s 86(1)(f) is reference to a development authorisation. The review is in relation to the two topics identified in s 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 been issued, there is no longer ‘an application for a development authorisation’ for the purpose of s 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 s 86(1)(f). This construction does not prohibit applications to court made prior to a determination.
(emphasis added)
[3] (2013) 117 SASR 223 at [27]-[28].
For the reasons above given, I do not accept that the “matter” referred to in s 86(1)(f) of the Development Act is the ultimate development authorisation. Be that as it may, the decision in Paior was, in my respectful opinion, plainly correct because if a matter is relevant to the determination of an application for development authorisation it remains relevant to that determination even after the application has been finally determined. As Blue J explained:[4]
The word “development” is defined by s 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 s 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 s 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”.
[4] (2013) 117 SASR 223 at [56]-[58].

The Judge of the ERD Court in Paior correctly observed that if any decision as to Category was effectively subsumed in the decision on the Development Plan Consent, the entire scheme of public participation in the development assessment process up to that point would be rendered a hollow and largely artificial one.
The power of the Court to set aside the planning consent if it finds error in the categorisation is found in s 88 of the Development Act as Blue J explained in Paior:[5]
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 s 88(1)(da).
[5] City of Marion v Paior (2013) 117 SASR 223 at [56]-[58].
Moreover, in my view it is not necessary to resort to subparagraph (da) and (e) of s 88(1). Section 88(1)(a) of the Development Act itself grants a power to set aside a planning consent on an application to review a planning authority’s categorisation because the application for a review of a categorisation decision “relates” to that consent. The power in s 88(1)(a) of the Development Act is not confined to the decisions against which proceedings are brought but extends to any subsequent decision which it is necessary, and in the interests of justice, to set aside in order to give a full and effective remedy to the applicant.
It follows that the decision in Paior does not support the applicants.
Conclusion
The decision to which an application is brought pursuant to s 86(1)(f) of the Development Act “relates” for the purposes of s 86(4) of the Development Act is the decision which falls within either of the two placita of s 86(1)(f) of the Development Act. The phrase “to which the application relates” is employed to avoid repeating those placita. I accept that potential applicants pursuant to s 86(1)(f) of the Development Act do not receive, as a matter of statutory right, any information about their right to seek a review and the applicable time limit. However, the absence of any statutory notice reflects the choice of the Parliament and the Executive not to so provide. The language of the Development Act cannot be strained to ameliorate the consequences of that choice. Moreover, the remedy in the appropriate case lies in the power of the ERD Court to extend the time within which to review pursuant to s 86(4) of the Development Act. The applicants do not contend that they were entitled to an extension of time.
It follows that the appeal must be dismissed.
BAMPTON J: I agree with the Chief Justice that the appeal must be dismissed for the reasons he has given.
PARKER J: I agree with the Chief Justice that the appeal must be dismissed for the reasons he has given.

[2016] SASCFC 3

11 February 2016

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