Moloney v 21-25 South Esplanade Pty Ltd

[2024] SASCA 58

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

MOLONEY v 21-25 SOUTH ESPLANADE PTY LTD & ORS

[2024] SASCA 58

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

10 May 2024

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL

The appellant owns property adjoining a proposed development in Glenelg.  The developer,
21-25 South Esplanade Pty Ltd (the respondent), sought planning consent from the second respondent, the State Planning Commission.  The Commission’s delegate, the State Commission Assessment Panel (SCAP), treated the development as a Category 2 development.

The appellant and others were notified and contended that the development should be refused planning consent.  Initially, the development comprised three underground levels, which included car parking space, and was proposed to rise more than 45 metres and 13 storeys.  The revised development is proposed to rise more than 40 metres and at least 10 storeys.  The development requires the demolition of two heritage listed dwelling houses.

The relevant portions of the Development Plan provide for a maximum of five storeys in the area of the development and protect heritage places from demolition.

SCAP refused planning consent and the respondent appealed to the Environment, Resources and Development Court (the ERD Court). The appellant and others sought to be joined to the planning appeal. Before the application for joinder was heard, SCAP and the respondent resolved the appeal on the basis of the revised development proposal. This occurred before a conference was conducted pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act). 

An order for joinder was made by the ERD Court which permitted the appellant to contest the merits of the respondent’s revised development in the planning appeal.

The respondent appealed to a single judge of the Supreme Court, who allowed the appeal and set aside the order for joinder, finding that the joinder powers contained in s 17 of the ERD Court Act and s 88(2)(c) of the Development Act 1993 (SA) (now repealed) (the Development Act) were constrained by the respondent’s right to have the compromise reflected in orders of the ERD Court under s 16 of the ERD Court Act. 

The appeal judge distinguished the decision of the Full Court in Pitt v Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) and declined to follow O’Neill v Kimhi [2008] SASC 109 (O’Neill) because those cases did not concern joinder where the planning appeal had been compromised.

HELD (the Court), allowing the appeal, and dismissing the notice of contention, setting aside the orders made by the appeal judge and restoring the orders made by the ERD Court:

1.The appeal judge erroneously constrained the operation of s 88(2)(c) of the Development Act by reference to the terms of s 16 of the ERD Court Act. The suggested new approach outlined in the decision under appeal, which gives primary emphasis to s 16 of the ERD Court Act, should not be followed.

2.Whilst the operation of both Acts may inform the proper approach to the statutory scheme of which they form a part, orthodox principles of construction require that any review of the exercise of the discretion to order joinder give primary consideration to the terms of s 88(2)(c) of the Development Act.

3.On an application of those principles of construction, as informed by the decisions in Pitt and O’Neill, the absence of a right of appeal in a Category 2 representor, and the fact of a compromise of the planning appeal between a developer and a planning authority, are relevant but not decisive considerations. O’Neill was a case where a compromise between the developer and the planning authority was in prospect at the time joinder was argued, and occurred after joinder was refused and before the appeal seeking joinder was heard.

4.The appeal judge should have found that the appellant demonstrated the existence of “a special interest in the subject-matter of the application” (or planning appeal) under s 88(2)(c)(i) of the Development Act, as well as “a direct or material interest in the matter” under s 16(9)(b) of the ERD Court Act.

5.The order for joinder was rightly made by the ERD Court under s 88(2)(c) of the Development Act and in conformity with the principles laid down in Pitt and O’Neill. The ERD Court made no error of law, and the exercise of discretion it made was open to it.  It is for the ERD Court as a specialist tribunal to determine how best to manage its business.

Acts Interpretation Act 1915 (SA) s 34; Children and Young People (Safety) Act 2017 (SA); Criminal Procedure Act 1921 (SA); Development Act 1993 (SA) ss 32, 33, 44, 86, 88; Development (Assessment Procedures) Amendment Act 2007 (SA); Environment, Resources and Development Court Act 1993 (SA) ss 5, 7, 16, 17, 21; Legislation Interpretation Act 2021 (SA) s 3; Planning, Development and Infrastructure Act 2016 (SA) s 101, 102, 215; Sentencing Act 2017 (SA); Supreme Court Act 1970 (NSW); Youth Court Act 1993 (SA), referred to.
21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4; 21-25 South Esplanade Pty Ltd v State Planning Commission & Ors [2022] SASC 106; A, B and C Commissioner v CFMEU (2018) 262 CLR 157; Abebe v Commonwealth (1999) 197 CLR 510; Anderson v The Commonwealth (1932) 47 CLR 50; Australian Competition and Consumer Commission v Real Estate Institute (WA) (1999) 95 FCR 114; Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; Bates v City of Holdfast Bay [2017] SAERDC 40; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Ciccarello v City of Charles Sturt [2010] SAERDC 49; Citify Pty Ltd v Corporation of the City of Marion [2021] SAERDC 30; City of Marion v Paior (2013) 117 SASR 223; City of Marion v Lady Becker (1973) 6 SASR 13; Clarke v District Council of Grant [2016] SAERDC 36; Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409; Conservation Council of WA Inc v Dawson [2019] WASCA 102; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; Duckworth v Water Corporation (2012) 261 FLR 185; Elliot v Town of Walkerville (1982) 2 APA 267; Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398; Erujin Pty Ltd v Western Australia Planning Commission (2010) 70 SR(WA) 69; Gibbs v City of Charles Sturt (2010) 176 LGERA 341; Gouriet v Union of Post Office Workers [1978] AC 435; Green v Lord Penzance (1881) 6 AC 657; Hadid v Lenfest Communications Inc (1996) 70 FCR 403; Harvey v Phillips (1956) 95 CLR 235; Ibrahim v Medical Board of Australia [2015] NSWCA 207; Independent Holdings Ltd v City of Adelaide Planning Commissioner (1994) 63 SASR 318; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100; Kinloch v Manzione [2022] ACTSC 76; Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; Lakshmanan v City of Norwood (2010) 174 LGERA 428; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; London Passenger Transport Board v Moscrop [1942] AC 332; M & J Dowling Pty Ltd v City of Malvern (1983) 1 PABR 86; McLeod v Legal Profession Conduct Commissioner [2016] SASC 151; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Mt Lofty Ranges Association Inc v State Planning Authority [1973] SAPR 290; Nguyen v The Queen [2022] SASCA 25; NL v Chief Executive of Department for Child Protection [2023] SASCA 20; Nunn v South Gippsland Shire Council [2012] VCAT 1804; O’Neill v Kimhi [2008] SASC 109; Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77; Petroleum Refineries (Aust) Pty Ltd v Archer Boulton Pty Ltd (1991) 55 SASR 510; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; Police v Mahon [2022] SASCA 76; Psevdos v Commonwealth Bank of Australia (2016) 248 FCR 430; R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407; R v Marshall [2023] SASCA 105; Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633; Re Brashs Pty Ltd (1994) 15 ACSR 477; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Re York Street Mezzanine Pty Ltd (In Liq) (2007) 162 FCR 358; Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; Terra Group Pty Ltd v City of Port Adelaide Enfield [2015] SAERDC 26; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11; Twenty-Seven Properties Ltd v District Council of Noarlunga (1975) 32 LGRA 407; Valentine v Eid (1992) 27 NSWLR 615; Victorian Workcover Authority v BSA Limited & Ors [2017] VSCA 276; Ward v Williams (1955) 92 CLR 496; Whitehouse Developments Pty Ltd v City of Sydney [2017] NSWLEC 1391; Zweck v Town of Gawler (2015) 124 SASR 319, considered.

MOLONEY v 21-25 SOUTH ESPLANADE PTY LTD & ORS
[2024] SASCA 58

Court of Appeal – Civil:  Livesey P, Bleby and David JJA

THE COURT:

Introduction

1. This is an appeal against a decision to overturn an order for joinder made by the Environment Resources and Development Court of South Australia (the ERD Court).[1] The appeal judge upheld the appeal against the ruling made by the ERD Court on the basis that the order for joinder should not have been made where the existing parties to the appeal – the developer and the planning authority – had resolved it ahead of an adjourned conference conducted pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act).[2]

   [1]     21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4 (Burnett DCJ and Commissioner Rumsby) (ERD Court Reasons). 

   [2]     21-25 South Esplanade Pty Ltd v State Planning Commission & Ors [2022] SASC 106 (Kourakis CJ) (Reasons).

2. In so doing, the appeal judge held that the joinder powers contained in s 17 of the ERD Court Act and s 88(2)(c) of the Development Act 1993 (SA) (now repealed) (the Development Act) did not permit the joinder of adjoining landowners to an appeal between a developer and the planning authority though they had been given notice about and made representations against what was a Category 2 development. Though the terms of s 16(9) of the ERD Court Act and s 88(2)(c) of the Development Act did not explicitly exclude Category 2 representors, the appeal judge held that it was significant that they had no right of appeal.

3. The appeal judge distinguished Pitt v Environment Resources and Development Court,[3] where the Full Court ruled that the scope of the joinder power under s 17 of the ERD Court Act (before the introduction of s 88(2)(c) of the Development Act) extended to Category 2 representors, because there was in that case no compromise of the kind that occurred in this case. 

   [3]     Pitt v Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) (Doyle CJ, Duggan and Nyland JJ).

4. Moreover, the appeal judge declined to follow the later decision of O’Neill v Kimhi[4], where the statements of principle made in Pitt – and the subsequent case of Onesteel Manufacturing Pty Ltd v Environment Protection Authority[5] – were followed after s 88(2)(c) of the Development Act was introduced.  O’Neill was a case where a compromise between the developer and the planning authority was in prospect at the time joinder was argued, and occurred after joinder was refused and before the appeal was heard. 

   [4]    O’Neill v Kimhi [2008] SASC 109 (O’Neill).

   [5]     Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 (OneSteel).

5. Though O’Neill appears to have been consistently followed since 2008,[6] the appeal judge did not determine whether the ruling was plainly wrong.[7]  It is unnecessary to determine whether that test applied as it is for this Court to determine the preferable approach.

   [6]     See, for example, Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11 (Judge Cole).

   [7]     In Duckworth v Water Corporation (2012) 261 FLR 185, [31], Edelman J relied on the decision of Justice Hayne in Re Brashs Pty Ltd (1994) 15 ACSR 477 for the proposition that trial judges should generally follow the decisions of other trial judges concerning Commonwealth or uniform national law and, in so doing, he relied on authorities where similar sentiments had been expressed about decisions by single judges concerning the common law, such as Valentine v Eid (1992) 27 NSWLR 615, 622 (Grove J), unless “convinced that that judgment is wrong”; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204 (Burchett J), the court should “usually follow the decision of another judge at first instance … unless … convinced that the judgment was wrong”; and Re York Street Mezzanine Pty Ltd (In Liq) (2007) 162 FCR 358, [22]-[23] (Finkelstein J), unless the other judgment is “plainly wrong”. See also Psevdos v Commonwealth Bank of Australia (2016) 248 FCR 430, [15]-[17] (Charlesworth J), cf Kinloch v Manzione [2022] ACTSC 76, [34] (Kennett J).

   Overview of the disposition of the appeal

6. For the reasons that follow, the order for joinder was rightly made by the ERD Court under s 88(2)(c) of the Development Act and in conformity with the principles laid down in Pitt and O’Neill. 

7. The appeal judge erroneously constrained the operation of s 88(2)(c) of the Development Act by reference to the terms of s 16 of the ERD Court Act. Whilst the operation of both Acts may inform the proper approach to the statutory scheme of which they form a part, orthodox principles of construction require that any review of the exercise of the discretion to order joinder give primary consideration to the terms of s 88(2)(c) of the Development Act.

8. On an application of those principles of construction, as informed by the decisions in Pitt and O’Neill, the absence of a right of appeal in a Category 2 representor, and the fact of a compromise of the planning appeal between a developer and a planning authority, are relevant but not decisive considerations.  As the Full Court observed in Pitt, the joinder power requires that a party without a right of appeal demonstrate that an order for joinder should be made. That was the approach taken to s 17 of the ERD Court Act, and a similar approach has been taken to s 88(2)(c) of the Development Act.

9. The new approach outlined in the decision under appeal, which gives primary emphasis to s 16 of the ERD Court Act, should not be followed. 

10. The ERD Court made no error of law, and the exercise of discretion it made was open to it.  It is for the ERD Court as a specialist tribunal to determine how best to manage its business. 

11. In consequence, the appeal should be allowed.  The notice of contention should be dismissed.

12. These reasons are structured as follows:

    Overview of the disposition of the appeal

    Factual background

    The reasons of the ERD Court

    The reasons of the appeal judge

    The ERD Court and the relevant legislation

    The ERD Court

    Sections 16 and 17 of the ERD Court Act

    The Development Act (now repealed)

    Relevant authorities preceding this appeal

    The approach of the parties to this appeal

    First question: joinder under s 88(2)(c) of the Development Act

    Sub-section 88(2)(a)

    Distinguishing Pitt and not following O’Neill

    Other matters

    Second question: s 16 of the ERD Court Act

    Disposition of the appeal

    Conclusion

    Factual background

13. A Category 2 representor and adjoining landowner in Glenelg, Mr Moloney (the appellant), contended that the development proposed by the developer, 21‑25 South Esplanade Pty Ltd (the respondent), should be refused planning consent.  The order for joinder made by the ERD Court permitted the appellant to contest the merits of the respondent’s development in a planning appeal. 

14. The respondent proposes to construct a large apartment building which will wrap around the appellant’s residence on two sides.  Initially, the development comprised three underground levels, which included car parking space, and was proposed to rise more than 45 metres and 13 storeys.  The revised development is proposed to rise more than 40 metres and at least 10 storeys.  The development requires the demolition of two heritage listed dwelling houses.

15. The relevant portions of the Development Plan provide for a maximum of five storeys in the area of the development and protect heritage places from demolition. 

16. The respondent sought planning consent[8] from the second respondent, the State Planning Commission.  The Commission’s delegate, the State Commission Assessment Panel (SCAP), treated the development as a Category 2 development.  SCAP gave notice of the development application to the appellant and others in the immediate vicinity.  The appellant and at least 23 others made representations opposing the development.  The appellant relied on an expert planning report and the opinion of counsel that the development was seriously at variance with the Development Plan.  In addition, SCAP permitted the appellant by counsel to make an oral address to it. 

    [8] This was described as “development plan consent” under s 33(1)(a) of the Development Act, but it is now referred to as “planning consent” under s 102(1)(a) of the Planning, Development and Infrastructure Act 2016 (SA). Planning consent was sought under ss 32, 33(1)(a) and 44(1) of the Development Act, now replaced by ss 101, 102(1)(a) and 215(1) of the Planning, Development and Infrastructure Act 2016 (SA).

17. On 30 June 2021, SCAP refused planning consent and gave reasons.  They were:

    a)The proposal significantly departs from the intent of the Desired Character Statements within Urban Glenelg Policy Area 15 and Precinct 4 Five Storey, Precinct; Precinct PDC 20(b) and (c), and General Section Design and Appearance PDC 1 for the following reasons:

    i.The proposal does not achieve a sufficient transition in scale; and

    ii.The proposal presents excessive massing, is insufficiently modulated and does not adequately acknowledge and respect the existing context.

    b)It has not been adequately demonstrated that the Local Heritage Place cannot be conserved in accordance with General Section Heritage Places Objective 1 and Objective 2.

18. On the same day, SCAP determined that the development was not seriously at variance. The appellant instituted proceedings in the ERD Court challenging that decision in what has been described as a “review action”. The respondent applied under s 17(1) of the ERD Court Act to be joined to the review action and, by consent, an order for joinder was made.

19. On 10 August 2021, the appellant appealed the refusal to grant planning consent to the ERD Court, seeking a de novo re-determination of the decision.  The sole ground of the planning appeal was:

    Having regard to the circumstances and all of the relevant provisions of the Development Plan, the proposed development warranted development plan consent.

20. Soon after the institution of the planning appeal to the ERD Court, various parties, including the appellant, applied to be joined to the planning appeal:

    1.On 20 August 2021 Mr Mark Forgie and Mr Dale Hanson applied, as the owners of apartments in Saltram Towers, which is adjacent to the development on its northern side. 

    2.On 23 August 2021 the appellant applied. 

    3.On 31 August 2021 the City of Holdfast Bay applied, as the owner of property directly opposite the proposed development. 

    4.On 14 September 2021 Mr Bruce Kay and Ms Henriette Kay applied, as they live next door to the appellant and immediately adjacent the southern boundary of the development. 

1. Each of these applicants for joinder had either made submissions to, or lodged representations with, SCAP.

2. However, before the planning appeal commenced, the respondent prepared a revised development proposal which reduced the overall height of the building from between four and 13 storeys to between four and 10 storeys.  The revised development proposal was put to SCAP between 20 and 29 July 2021.  SCAP considered the proposal between 11 and 25 August 2021.  Consideration proceeded in confidence because SCAP took the view that if it accepted the proposal, that would constitute a compromise of legal proceedings.[9]

   [9] Reasons [5].

3. On 21 September 2021, SCAP communicated an offer to the respondent to resolve the appeal on the basis of the revised development proposal, which was made subject to certain conditions.  This was described by the appeal judge as a concluded agreement to compromise the planning appeal.[10] 

   [10] Reasons [5].

4. Necessarily, SCAP neither heard nor received material from any of the Category 2 representors, including the applicants for joinder, concerning the revised proposal.  Neither the appellant nor anyone else appears to have seen all of the materials considered by SCAP or a record of its deliberations.

5. Nonetheless, some of the materials provided to SCAP have since been made available to the ERD Court and the applicants for joinder.[11]

   [11]   Exhibit 2, IP6; Exhibit 3, IP3; Exhibit 4, A12 (Appeal book pages 103-169). 

6. Before the compromise, on 3 September 2021 the appellant and SCAP appeared before a Commissioner of the ERD Court at a conference held pursuant to s 86(6) of the Development Act and s 16 of the ERD Court Act.  The appellant requested that the conference be adjourned for directions before a judge of the ERD Court so as to consider the joinder applications and a foreshadowed joinder application by the Kays. The respondent indicated that it would object to the applications for joinder.

7. The application for an adjournment was opposed by some of the applicants for joinder. The court ordered that the hearing of the joinder applications be adjourned and that another s 16 conference be held on 10 September 2021.[12]

   [12] Reasons, [8].

8. The respondent and SCAP agreed that the revised development proposal plans would be provided to the applicants for joinder by 6 September 2021, on a strictly confidential basis.

9. On 10 September 2021, the ERD Court re-convened the s 16 conference concerning the planning appeal, the appellant’s review action and another review action brought by the Kays. The parties to each action and the joinder applicants were all permitted to attend and participate in this conference.

10. The respondent did not attempt to have the compromise recorded at the conference.  It was not suggested by the respondent that it had any right to have its compromise reflected in orders of the court.

11. The conference was again adjourned and the joinder applications were heard in open court.  The argument of the respondent was that the fact of a compromise should weigh against joinder.  The Commission determined to abide the event. 

    The reasons of the ERD Court

12. In considered reasons for decision spanning nearly 30 pages, the ERD Court reasoned in favour of joinder as follows:

    1.It could not be assumed that the ERD Court would give effect to the compromise.[13]

    2.It is in the public interest to expose the merits of the revised development proposal to scrutiny.[14]

    3.It was appropriate to expose the merits of the proposed revised development to scrutiny because of the effect it would have on the interests of the applicants for joinder.[15]

    4.The arguments and evidence which the applicants for joinder would introduce on the sole issue raised by the respondent’s planning appeal, whether planning consent should be granted, would assist the ERD Court in ways which the existing parties may not.[16]

    5.Weighing all relevant matters, and exercising the discretionary power conferred by the ERD Court Act and the Development Act, it was in the interests of justice to make the order for joinder.[17]

    [13] ERD Court Reasons, [107], [111], [113] and [121].

    [14]   ERD Court Reasons, [120].

    [15] ERD Court Reasons, [91]-[93] and [106].

    [16] ERD Court Reasons, [109]-[110] and [121].

    [17] ERD Court Reasons, [103]-[120].

13. In the course of considering the respective arguments, the ERD Court gave careful consideration to the ruling of the Full Court in Pitt,[18] as well as the subsequent ruling of Debelle J in O’Neill.[19]  The ERD Court considered whether the applicants for joinder had established a special interest in the proposed development as well as whether the interests of justice required joinder.

    [18]   Pitt (1995) 66 SASR 274. The ERD Court also considered the subsequent decision of Debelle J in Onesteel (2005) 92 SASR 67, [20] (Debelle J).

    [19]   O’Neill [2008] SASC 109.

14. Critically, the ERD Court recorded that both the respondent and the applicants for joinder were agreed that s 88(2)(c) and, for that matter, the successor provision s 205(2)(c) of the Planning, Development and Infrastructure Act 2016 (SA), did not impose criteria that were materially different to those considered by the Full Court in Pitt.[20]

    [20] ERD Court Reasons, [63]-[64].

15. Acknowledging that Pitt was not a case where there was a compromise between the developer and the planning authority, the ERD Court considered the way in which this consideration was evaluated in a different context by the Full Court in Coast Protection Board v Carramatta Holdings Pty Ltd.[21]  As the ERD Court reasoned:[22]

    Although Carramatta Holdings involved an application under s 85 of the Development Act for enforcement orders, the statements of principle made by Kourakis CJ (and Stanley J, to which we will refer later in these Reasons) are, in our opinion, equally applicable to an application or appeal under s 86. In cases involving both ss 85 and 86, settlements may involve some other form of development that requires consideration against the criteria of the Development Act, persons other than the direct parties have an interest in the outcome and the public as a whole has an interest that the requirements of the Development Act will be observed. That will be relevant to our determination of whether joinder is in the interests of justice.

    Settlement of a dispute between a developer and the relevant authority following the institution of an appeal against a refusal of a proposed development will be a relevant consideration in the exercise of the discretion to join parties to the appeal.  However, settlement will not operate as a bar to joinder: to do so would be to ignore the interests of joinder applicants or others in a proposed settlement,[23] the interests of the public in ensuring that the requirements and objectives of the Development Act are observed and the role of the Court in considering any settlement proposal.

    [21]   Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409, [24] and [27] (Kourakis CJ).

    [22] ERD Court Reasons, [67]-[68].

    [23] Sections 16(7)(c) and 16((9)(b) of the ERD Court Act.

16. The ERD Court also referred to the decision of Judge Cole in Truenergy Renewal Development Pty Ltd v Regional Council of Goyder, where the court permitted the joinder of two of four applicants for joinder who had been given Category 2 notifications.  Her Honour reasoned to the effect that, were joinder not ordered, those who received notice of a Category 2 development may never have an opportunity to make representations about a revised development proposal.[24]

    [24]   Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11, [23] (Judge Cole).

17. The ERD Court concluded that the decisions in Pitt and O’Neill set out statements of principle which remained applicable even where there had been a compromise between a developer and a planning authority:[25]

    The decisions in O’Neill and Pitt, to which we have already made reference earlier in these reasons, set out statements of principle which remain applicable in determining a joinder application even where the existing parties may have, between themselves, reached an agreement to settle the dispute. Therefore, in O’Neill joinder was permitted in circumstances where a settlement had been reached between the developer and the relevant authority after a s 16 conference but prior to an appeal from an earlier decision to refuse joinder. It would be inconsistent with the statements of principle set out in O’Neill and Pitt to hold that settlement of the dispute between the developer and the relevant authority was determinative.

    [25]   ERD Court Reasons, [70].

18. The appellant submitted that the approach of the ERD Court was both orthodox and a correct application of the relevant authorities, particularly the authority of the Full Court in Pitt.

    The reasons of the appeal judge

19. The respondent’s appeal to the appeal judge was, as mentioned, allowed and the orders for joinder were set aside.  In the course of detailed reasons, the appeal judge held:

    1.Where those who are parties as of right to a planning appeal have settled their dispute, the ERD Court was bound pursuant to s 16(7), subject only to s 16(9) of the ERD Court Act, to record that settlement and to make any determination or order necessary to give it effect.[26]

    2.Neither the appellant nor the other applicants for joinder had a direct or material interest in the appeal which would be prejudiced by the recording of the settlement. Pursuant to s 16(9) of the ERD Court Act the only non-parties with a direct and material interest in a planning appeal are those notified of a Category 3 development because, if the appeal is settled without their joinder and consent, they would suffer the prejudice of being denied their statutory right of appeal against a development authorisation.[27]

    3.Where s 16(9) of the ERD Court Act did not stand in the way of recording a settlement, the court was bound to record it and make consequential orders.  Accordingly, there would then be no hearing “and certainly no de novo hearing” of the merits of the planning appeal. Because the applicants for joinder were joined without determining whether they had a direct or material interest in the appeal they were able to veto the settlement and it became necessary to proceed to a merits hearing and, thereby, subvert the proper operation of ss 16(7) and 16(9) of the ERD Court Act.[28]

    [26] Reasons, [15], [37]-[39] and [62]-[64] and [83].

    [27] Reasons, [13]-[14], [37]-[39], [62]-[64] and [83].

    [28] Reasons, [15].

20. In support of the conclusion that the applicants for joinder had no direct or material interest in the appeal, the appeal judge relied on s 88(2)(a) of the Development Act which stipulated that the ERD Court should only deal with and resolve issues in dispute between the parties.  By permitting the joinder of persons with no direct or material interest in the appeal, a proceeding in which there was no extant controversy was converted into a proceeding in which there was a controversy between the parties who had resolved their differences, on one hand, and those who do not enjoy any right of appeal, on the other. 

21. In consequence, the respondent was correct to submit that the joinder applicants “had no right to be joined” to the planning appeal.[29]

    [29] Reasons, [16]-[18].

22. Having criticised the ERD Court for giving an “excessively wide operation” to s 16(9) of the ERD Court Act, the appeal judge also criticised the ERD Court for “wrongly” having regard to the assistance which the applicants for joinder might provide at a de novo hearing without first considering the respondent’s “entitlement or otherwise to have orders made without a hearing on the merits”.[30] 

    [30] Reasons, [19].

23. The appeal judge found that the ERD Court fell into error because it wrongly applied the observations of Doyle CJ in Pitt, which was a case where no compromise had been reached.[31] 

    [31] Reasons, [19].

24. After reviewing the reasons of the ERD Court in some detail the appeal judge concluded:[32]

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

    [32] Reasons, [81].

25. After considering the ERD Court’s analysis of the effect of the compromise,[33] the appeal judge held:[34]

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

    [33] ERD Court Reasons, [113]-[118].

    [34] Reasons, [83].

26. As can be seen, the resolution of the question of joinder was bound up in the approach taken to s 16 of the ERD Court Act.

    The ERD Court and the relevant legislation

27. In order to address the contentions on appeal it is necessary to consider the role of the ERD Court and the legislation that applied.

    The ERD Court

28. The ERD Court is a court of record which, when determining statutory appeals, exercises judicial power.[35]  Speaking generally, the ERD Court only has such jurisdiction as is conferred by statute or as arises by necessary implication.[36] 

    [35]   ERD Court Act, s 5; Lakshmanan v City of Norwood (2010) 174 LGERA 428, [71] (Kourakis J, with whom White J agreed); Zweck v Town of Gawler (2015) 124 SASR 319, [55]-[57] (Blue J, with whom Kourakis CJ agreed at [11] and Nicholson J agreed at [109]).

    [36]   ERD Court Act, s 7.

29. There are a number of statutes which confer jurisdiction on the ERD Court concerning the environment,[37] resources,[38] and development.[39] 

    [37]   Maralinga Tjarutja Land Rights Act 1984 (SA), Pastoral Land Management and Conservation Act 1989 (SA), Native Vegetation Act 1991 (SA), Environment Protection Act 1993 (SA), River Murray Act 2003 (SA), Adelaide Dolphin Sanctuary Act 2005 (SA), Fisheries Management Act 2007 (SA), Marine Parks Act 2007 (SA), Local Nuisance and Litter Control Act 2016 (SA) and Radiation Protection and Control Act 2021 (SA).

    [38]   Mining Act 1971 (SA), Opal Mining Act 1995 (SA), Irrigation Act 2009 (SA), South Eastern Water Conservation and Drainage Act 1992 (SA), Ground Water (Qualco-Sunlands) Control Act 2000 (SA), Renmark Irrigation Trust Act 2009 (SA), Landscape South Australia Act 2019 (SA) (and its predecessors the Natural Resources Management Act 2004 (SA) and the Water Resources Act 1997 (SA)), and Petroleum and Geothermal Energy Act 2000 (SA).

    [39]   South Australian Motor Sport Act 1984 (SA), Strata Titles Act 1988 (SA), Development Act 1993 (SA) (repealed), Heritage Places Act 1993 (SA), Native Title (South Australia) Act 1994 (SA), Community Titles Act 1996 (SA), and Planning, Development and Infrastructure Act 2016 (SA). 

30. In broad terms, these statutes confer upon the ERD Court the jurisdiction to hear and the power to determine appeals from administrative decisions of various kinds.  They also confer jurisdiction to determine civil enforcement proceedings for breaches, or suspected breaches, of the relevant Act, as well as criminal proceedings brought for the purposes of trying an offence against the relevant Act. 

31. In this context, it may be expected that when it is asked to consider making orders to give effect to the settlement of an appeal from a refusal to grant various kinds of authorisations or other permissions, the ERD Court will routinely be concerned with decisions that affect both private interests and the public interest.  Likewise, enforcement orders and criminal proceedings will routinely affect both private and public interests.

32. Like any court, the ERD Court is not permitted to make orders beyond jurisdiction and,[40] when making orders by consent, it must be satisfied not only that the proposed order is within power but that it is appropriate to make the order.[41]  It is a corollary of the requirement that the ERD Court determine that a consent order is both within power and appropriate to be made, that it will never merely act as a “rubber stamp”.[42]

    [40]   Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 163 (Gibbs CJ, Stephen, Mason and Wilson JJ), 167 (Murphy J).

    [41]   Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, [43] (French, Weinberg and Greenwood JJ).

    [42]   Australian Competition and Consumer Commission v Real Estate Institute (WA) (1999) 95 FCR 114, [38] (French J); see also Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, [43] (French, Weinberg and Greenwood JJ).

33. So, in Kovalev v Minister for Immigration and Multicultural Affairs, French J considered a consent order by which a decision of the Refugee Review Tribunal was to be set aside.  His Honour addressed a number of considerations relevant to the making of consent orders which were relevant regardless whether they dispose of private litigation between persons or entities, or whether they determine proceedings by or against governments and their agencies. 

34. As French J explained it, in the exercise of its judicial power, the court was not merely giving effect to the wishes of the parties, it was exercising a public function and must have regard to the public interest in doing so.[43]  In his Honour’s opinion, not only must the court be satisfied that a consent order is within the power of the court, it must also appear that it is appropriate to make it.  Whilst it is not the function of the court to impede a settlement, that does not exempt the court from ensuring that a consent order is both within power and appropriate.[44]  That is especially so where the suggested error is of a kind that attracts the public interest.[45] 

    [43]   Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [11].

    [44]   Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [12].

    [45]   Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [12].

35. In the opinion of French J, the requisite approach to the making of consent orders did not necessarily require any exacting enquiry into the basis for every order, but there were certain minimum requirements, which he outlined.[46]

    [46]   Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [14]-[15].

36. In the case of consent orders made by way of the compromise of a planning appeal, there is an undoubted public interest associated with the determination that the proposed development accords with the relevant planning statute and instruments.[47] Before the introduction of compulsory conferences under s 16 of the ERD Court Act, there was no power to enter judgment without first exercising “an independent responsibility and judgment as to the appropriateness of any order”, regardless whether this was done with or without the consent of the parties.[48] 

    [47]   Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409, [125]-[126] (Stanley J).

    [48]   Twenty-Seven Properties Ltd v District Council of Noarlunga (1975) 32 LGRA 407, [410] (Wells J), following Mt Lofty Ranges Association Inc v State Planning Authority [1973] SAPR 290, subsequently followed in Elliot v Town of Walkerville (1982) 2 APA 267.

1. In other jurisdictions concerning similar but not identical planning regimes, it has generally been held that the relevant court, tribunal or board should not “blindly make directions … regardless of the planning merits” and, thereby, “be a mere rubber stamp in determining appeals”.[49]  A similar approach has been taken in connection with a planning review proceeding in Western Australia.[50]

   [49]   M & J Dowling Pty Ltd v City of Malvern (1983) 1 PABR 86, 89-90, followed in, inter alia, Nunn v South Gippsland Shire Council [2012] VCAT 1804. See, by way of example, Whitehouse Developments Pty Ltd v City of Sydney [2017] NSWLEC 1391.

   [50]   Erujin Pty Ltd v Western Australia Planning Commission (2010) 70 SR(WA) 69, [45].

2. In the case of settlements which are to be subject to consent orders made by the Victorian Civil and Administrative Tribunal (VCAT), Croft J in John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc endorsed the approach that it is necessary for VCAT to consider the appropriateness and efficacy of the settlement proposed.[51] 

   [51]   John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100, [19]-[21].

3. Nonetheless, the ERD Court is an informal court and, criminal proceedings aside, it must conduct itself with a minimum of formality, and it may inform itself as it thinks fit.  The ERD Court is not bound by the rules of evidence and it may require the makers of decisions to furnish the court with the materials which were before the decision-maker and to report on any aspect of the subject matter of the appeal.[52]

   [52]   ERD Court Act, s 21.

4. As might be expected, the ERD Court must act according to equity, good conscience and the substantial merits of the case, without regard to legal technicalities and forms.[53] 

   [53]   ERD Court Act, s 21.

   Sections 16 and 17 of the ERD Court Act

5. Against that background, it is appropriate to consider ss 16 and 17 of the ERD Court Act:

   16—Conferences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   17—Parties

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

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

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

   (b)     with the concurrence of a Judge.

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

   (4)Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings—

   (a)     dismiss or determine any proceedings that appear—

   (i)to be frivolous or vexatious; or

   (ii)to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;

   (b)     after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;

   (c)     give summary judgement against a party—

   (i)who obstructs or unnecessarily delays the proceedings; or

   (ii)who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or

   (iii)who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.

   (4a)If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case.

   (4b)The Court may, in making an order under subsection (4a), determine that the costs will be determined or settled—

   (a)     as between party and party in accordance with the scale prescribed for the purpose; or

   (b)     as between solicitor and client.

6. Ahead of the enactment of the ERD Court Act some explanation for the operation of these provisions was given during the course of the Second Reading speech:[54]

   One of the major aims of the Court is to retain informality, with hearings based on the merits of the case, not legal technicalities.  The Bill contains a number of provisions to reinforce this objective…

   Clause 16: Conferences

   This clause is “modelled” on section 27 of the Planning Act 1982.  It is envisaged that a relevant Act, or the rules, will provide that certain proceedings before the Court must at first instance be referred to a conference presided over by a member of the Court appointed to assist the parties to explore any possible means to settle the proceedings by agreement.  A conference will normally be held in private…

   Clause 17: Parties

   The Court will be able to join other persons as parties to proceedings…

   …

   Clause 21: Principles governing hearings

   The Court is to conduct its procedures with the minimum of formality and will not be bound by the rules of evidence…

   [54]   Hansard, House of Assembly, 10 March 1993, 2443-2446 at 2444-2445.

7. As envisaged by the Second Reading speech, the Environment, Resource and Development Court Rules 2003 address the conduct of conferences under s 16 of the ERD Court Act.  In particular:

   8.5.1Where, during the course of a conference, the member presiding concludes that the parties have reached or may reach a settlement which will or may prejudice any person not represented at the conference but who has a direct or material interest in the proceeding to which the conference relates, the member presiding may adjourn the conference and direct the Registrar to give notice of the conference and of the proposed or probable settlement to such person and the Registrar must give notice accordingly.

   8.5.2  Any person to whom the notice has been given pursuant to this paragraph may:

   a)    attend at the adjourned conference and participate in it; and

   b)    apply to be joined as a party to the proceeding the subject of the conference.

8. It may be noticed that rule 8.5.1 is a little broader than s 16(9)(b) because it operates where the parties “may reach a settlement” and not merely when there has been “a settlement.” In that event the ERD Court has by the rules the power to direct that notice be given of “the proposed or probable settlement” to any person not represented at the conference who has “a direct or material interest in the proceeding.”

9. This may be contrasted with the terms of s 16(9)(b) which empower the Court to decline to accept a settlement which may materially prejudice any person not represented at the conference who has “a direct or material interest in the matter.” A direct interest is not necessarily the same as a material interest. The combination of terms suggests that what is material may be indirect. Whilst it may be that the statutory reference to “the matter” under s 16(9)(b) is broader than the reference to “the proceeding” under rule 8.5.1, it is hard to see how anything will turn on that in this and most cases.

10. What is of importance is that even if there is a compromise, under s 16(9)(b) and rule 8.5.1, the s 16 conference may not proceed and orders may not be made under s 16(7) where it is recognised that there is a person who is not represented and that person has a “direct or material interest”. Whether the ERD Court re-convenes the s 16 conference or first determines the application for joinder will be a matter for the presiding officer to determine based on the circumstances and attitudes of those before the officer, as the two limbs of rule 8.5.2 recognise. The officer may decide that it is first appropriate to address joinder then re-convene the s 16 conference to determine whether the proceeding can be settled.

11. In this way, there should be no “race” as the appellant suggested. In most cases where the applicant has both a direct or material interest (s 16(9)) and a special interest (s 88(2)(c)), it ought not matter whether the application for joinder precedes the s 16 conference or follows it.

12. In addition, whilst joinder may not necessarily result in a hearing de novo, whether there is utility in ordering joinder will turn, at least in part, on the contribution the applicant for joinder may be able to make to that kind of hearing. Necessarily, any apparent merit in the approach of the applicant for joinder will also be relevant to determining whether there is any utility in having the applicant at any re-convened s 16 conference.

13. A further feature of ss 16 and 17 of the ERD Court Act should be noticed. Each of ss 16(7), 16(9)(b) and 17(1) are predicated by the use of the word “may”. Ordinarily this implies the conferral of a discretion to perform the particular function or power specified. That is in contra-distinction to the use of words such as “must” or “shall”, which ordinarily imply that the specified function or power must be exercised. For example, s 11(1) of the Legislation Interpretation Act 2021 (SA) provides:[55]

    [55] This may be contrasted with the less emphatic terms of s 34 of the Acts Interpretation Act 1915 (now repealed):

    34 – “May” imports a discretion, “shall” is imperative

    Where, in any Act passed after the first day of January, 1873, the word “may” is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word “shall” is used in conferring a power it implies the power must be exercised.

    11 – Meaning of may, must and shall

    (1)If, in an Act or legislative instrument, the word “may” or a similar expression is used in conferring a function, the entity on which the function is conferred has a discretion as to whether or not to perform it.

14. As might be expected, this orthodox approach to the discretionary exercise of a function or power may be displaced by an evident “contrary intention”.[56]

    [56]   Legislation Interpretation Act 2021 (SA), s 3(3), cf Ward v Williams (1955) 92 CLR 496, 506-509.

15. The appellant contrasted the orthodox approach to the conferral of a discretion with the approach taken by the appeal judge. After recognising that the use of the word “may” in the chapeau to s 16(7) represented a “wide and open textured discretion” which permitted the presiding officer at a conference to select “the most appropriate case management orders”,[57] s 16(7)(d) was construed as requiring that a settlement be recorded and that consequential orders must be made “unless precluded … by s 16(9).”[58]  Although the appeal judge went on to observe that the presiding officer may decline to record a settlement for another reason, “that circumstance would rarely arise.”[59]

    [57] Reasons, [33].

    [58] Reasons, [35].

    [59] Reasons, [36].

16. It will be necessary to return to the breadth of the discretion conferred by these provisions, together with the circumstances in which it may be exercised.

    The Development Act (now repealed)

17. By ss 32 and 33 of the Development Act the undertaking of a development is prohibited unless the relevant planning authority has assessed the proposed development and granted consent in accord with the Development Plan. 

18. Before doing so, s 38 prescribes the public notice which must be given and the representations which must or may be received, which vary according to whether the development is a Category 1, Category 2, Category 2A or Category 3 development as assigned by the Development Plan or the Regulations.

19. As has been observed, the applicants for joinder, including the appellant, are Category 2 representators. For present purposes the treatment of Categories 2 and 3 in s 38 of the Development Act is relevant:

    38—Public notice and consultation

    …

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

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

    (b)     any other person of a prescribed class.

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

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

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

    (c)     the public generally.

    …

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

    …

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

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

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

    …

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

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

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

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

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

    …

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

    …

20. Although the appeal judge suggested that the relevant planning authority had a discretion “conferred in the widest possible terms to decline to hear” from a Category 2 representor, it is clear that the relevant discretion is, in fact, one to allow a Category 2 representor to appear and be heard, see s 38(10)(a).[60]

    [60] Reasons, [23].

21. The difference between the right of appeal conferred on a Category 3 representor, and the right of review conferred on a Category 2 representor, is reflected in the terms of the s 86 of the Development Act:

    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.

    …

    (5)If—

    (a) an appeal is commenced before the Court against an order under section 69(1)(a); or

    (b)     an application that involves a dispute relating to a matter referred to in subsection(1)(c) or (e) (and no other dispute) is made to the Court,

    the matter must, in accordance with the Rules of the Court, be referred to a commissioner or commissioners of the Court for resolution under section 87.

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

1. It can be seen that by s 86(1)(a) a disappointed developer has a right to appeal. The same may be said of a Category 3 representor under s 86(1)(b). As has been observed, some applicants for joinder including the appellant have sought a review of the development categorisation pursuant to s 86(1)(f) of the Development Act.[61] 

   [61] As the appeal judge observed, nothing turns on that for the purposes of the appeal, Reasons [25]. That is reflected by the terms of s 86(1)(f) which confers the relevant right on an owner or occupier of adjacent land.

2. Section 86(1) addresses specified “applications”. Whilst s 86(6) addresses any “other application”, that means all applications other than those mentioned in s 86(5). These are references, at the least, to the appeals and reviews described in s 86(1). Whilst s 86(6) requires that these “must in the first instance be referred to a conference” under s 16 of the ERD Court Act, that conference may of course be adjourned in the discretion of the presiding officer (as occurred in this case). 

3. The parties were divided on whether the right to bring a review pursuant to s 86(1)(f) could incorporate a contention that a development was seriously at variance with the relevant Development Plan. The weight of authority in the ERD Court suggests that this contention can be advanced, though there is no need to decide that question on this appeal.[62]

   [62]   Terra Group Pty Ltd v City of Port Adelaide Enfield [2015] SAERDC 26, [71]-[79] (Judge Costello); Bates v City of Holdfast Bay [2017] SAERDC 40, [24]-[32] (Judge Cole), cf Ciccarello v City of Charles Sturt [2010] SAERDC 49, [16]-[24] (Judge Trenorden). See also City of Marion v Paior (2013) 117 SASR 223, [47]-[55] (Blue J).

4. Despite the breadth of the joinder power conferred by s 17 of the ERD Court Act, the parties to this appeal accepted that this was effectively constrained by the operation of s 88(2)(c) of the Development Act. Relevantly, s 88 provided:

   88—Powers of Court in determining any matter

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

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

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

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

   …

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

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

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

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

   (b)     if—

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

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

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

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

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

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

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

5. It may be noticed that the powers specified in the chapeau to s 88(1) are those which may be exercised on “hearing any proceeding under this Act.” It was accepted that a planning appeal may be regarded as a proceeding under the Development Act. 

6. Whilst s 88(1) provides a broad range of powers which may be exercised in connection with any hearing, s 88(2) is concerned with the exercise of the ERD Court’s jurisdiction in proceedings under the Act. Speaking generally, any hearing ordinarily encompasses the steps leading to a final hearing.[63]

   [63]   Green v Lord Penzance (1881) 6 AC 657, 669 (Lord Selbourne), 678 (Lord Blackburn); Hadid v Lenfest Communications Inc (1996) 70 FCR 403, 407 (Hill J); Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633, [103] (Rees J).

7. In addition, there is not usually implied any limitation in the conferral of jurisdiction or power on a court which is not contained in the provision by which jurisdiction or power is granted.[64]  For example, in Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc the High Court explained:[65]

   It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[66]

   [64]   Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486, [10], [25] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ); A, B and C Commissioner v CFMEU (2018) 262 CLR 157, [23] (Kiefel CJ), [103] (Keane, Nettle and Gordon JJ).

   [65]   Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421.

   [66]   See FAI General Insurance Co Ltd v Southern Cross Exploration N.L. (1998) 165 CLR 268, 283-284, 290. See also Knight v F.P. Special Assets LTD (1992), 174 CLR 178, at page 185, 202-203, 205.

8. Three further features of s 88(2) should be noticed.

9. First, s 88(2)(a), which is rendered subject to s 88(2)(b), requires that the ERD Court only seek to deal with issues in dispute between the parties. The appeal judge reasoned that the ERD Court should not proceed to hear a matter de novo if to do so was inconsistent with s 88(2)(a). Having said that, however, his Honour acknowledged that in the generality of cases where the complaint is that a wrong decision was made on the merits it is “unlikely to be inconsistent with s 88(2)(a) to proceed to hear the matter de novo.”[67] That is consistent with the terms of s 88(2)(b).

   [67] Reasons, [28].

10. The second matter to be noticed is that s 88(2)(c) deals with an application for joinder by non-parties. The power is expressed in broad terms and applies to any proceedings under the Development Act which may be heard by the ERD Court.  It is clear from the words in parentheses - which refer to the Crown, a relevant authority and a Category 3 representor - that the applicant for joinder will necessarily not come from within these categories, and will include those who may be described as Category 2 representors such as the appellant.

11. The relevant discretion is expressed in the negative so that the application for joinder may not be granted, for example, where the Court is not satisfied that the applicant has “a special interest in the subject-matter of the application”, see s 88(2)(c)(i). Similarly, the Court may determine not to grant the application for joinder where, “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.”, s 88(2)(c)(ii), or “on any other ground determined to be appropriate”, s 88(2)(c)(iii).

12. The relevant Second Reading Speech explained that the purpose of the introduction of s 88(2) in 2007[68] was to clarify the discretion of the court on an application for joinder to proceedings.[69] Whereas the appeal judge construed s 88(2) as a “statutory confinement” of the joinder power conferred by s 17 of the ERD Court Act, it had previously been regarded as reflecting two of the criteria identified in Pitt and O’Neill, namely, the requirements that there be a special interest as well as the interests of justice.[70]  As will be seen, the resolution of this issue is key to the determination of this appeal.

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

    [69]   Hansard, House of Assembly, 29 March 2007, 2256-2258 (The Hon JW Weatherill).

    [70]   O’Neill [2008] SASC 109, [18] (Debelle J).

13. The final matter, related to the second, is this. The appeal judge construed the “special interest” referred to in s 88(2)(c)(i) as being in “the matters arising on the appeal.”[71]  In part, it was for that reason that his Honour referred, on a number of occasions, to the necessity for an applicant for joinder to demonstrate a “direct and material interest in the appeal”.[72] The appeal judge reasoned that, were it otherwise, “Category 2 representors would have been included alongside Category 3 representors” in the words in parentheses in the chapeau to s 88(2)(c).[73] 

    [71] Reasons, [29].

    [72] Reasons, [13]-[14].

    [73] Reasons, [29].

14. Apart from this conclusion appearing to overlook that any involvement by a Category 2 representor will usually depend on the favourable exercise of the relevant discretion for joinder, the relevant words require the demonstration of a special interest in “the subject matter of the application”.  Here, the application is an appeal. To require that a special interest be shown in ‘the subject matter of the appeal’ is not the same as requiring that a special interest be shown in ‘the appeal’.  The statutory phrase is broader.  One must identify what comprises the subject matter of the appeal.

15. The subject matter of the planning appeal is not confined to the particular issues and arguments agitated between the parties to the appeal.  It is, as a result, not confined by whether the parties are in agreement or otherwise about those.  The subject matter of any planning appeal is the proposed development.  Ultimately, the subject matter of the appeal is concerned with whether the development plan consent ought be given or refused for the proposed development.  That is necessarily concerned with the merits of the proposal.[74]  Where the developer proposes a revised development, that becomes the focus of the appeal. 

    [74] As was recognised by the appeal judge, Reasons [29], though contrast. Reasons, [30]-[31].

16. Whether development plan consent should be granted, and reflected in orders made by the ERD Court, is not merely concerned with whether the developer and the planning authority have reached a compromise. As has been seen, whether development plan consent should be granted and reflected in orders made by the ERD Court raises a public interest as well as private interests. This too is an important key to the resolution of this appeal. 

    Relevant authorities preceding this appeal

17. It is appropriate to consider the decision of the Full Court in Pitt. The appellants in that case sought joinder to a planning appeal pursuant to s 17 of the ERD Court Act.  The refusal by a judge of the ERD Court to grant the application for joinder was appealed to the Full Court.  The appeal was heard together with an application for judicial review, seeking an order in the nature of certiorari to quash the decision of the ERD Court.

18. The appellants lived close to the Calvary Hospital in North Adelaide.  The hospital sought planning approval for a large development.  Approval was refused and this was appealed to the ERD Court, which had only recently been established.  When the appellants applied to be joined to that appeal, the ERD Court judge found that he had jurisdiction to make the order for joinder, but he refused it in the exercise of his discretion.

19. The Full Court allowed the appeal, finding that the ERD Court judge erred in refusing to make an order for joinder pursuant to s 17 of the ERD Court Act. 

20. Whilst Doyle CJ agreed with Duggan J (with whom Nyland J agreed), he expressed his own views on the scope of the power conferred by s 17 of the ERD Court Act.  The Chief Justice explained:[75]

    The power of making an order for joinder under s 17 involves making a judgment in the light of the facts of the case before the ERD Court. Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interests which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right in the public interest in the prompt and efficient dispatch of proceedings. In addition, of course, there will in each case be other factors particular to the case.

    [75]   Pitt (1995) 66 SASR 274, 275.

21. The Chief Justice acknowledged that the appellants had no right of appeal and that an order for joinder would necessarily have an effect on the proceedings before the ERD Court:[76]

    The interests represented in the proceedings are no longer confined to the applicant, for planning approval and the planning authority.  But that is the inevitable consequence of any order for joinder.  The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join. 

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

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

22. Chief Justice Doyle then addressed the nature of the interest which the applicant for joinder was required to establish. This was determined in a context where the joinder power in s 17(1) of the ERD Court Act was expressed in a broad and open way.  As Doyle CJ explained:[77]

    The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course.

    [77]   Pitt (1995) 66 SASR 274, 276.

23. More particularly, Doyle CJ rejected the proposition that a restrictive approach to the making of an order for joinder should be taken merely because the order permitted involvement in the proceedings and this was not permitted by the relevant planning legislation then in force. 

24. Nonetheless, Doyle CJ also held that it would be “equally wrong” to order joinder simply on the basis that the applicant for joinder could demonstrate the existence of an interest which would give standing for judicial review.[78]  To the same effect, he explained that it was not sufficient that the applicant could demonstrate an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v The Commonwealth.[79]  Rather, it was necessary to establish both a sufficient interest and factors which would make it appropriate to make an order for joinder. 

    [78]   Pitt (1995) 66 SASR 274, 276.

    [79]   Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 518 (Australian Conservation Foundation).

25. It will be recalled that in Australian Conservation Foundation the High Court addressed the question of standing by adopting a test which required the party seeking standing to demonstrate “a special interest in the subject matter of the action”, and cited a number of authorities, both in Australia and England, in support of that test.[80]

    [80]   Australian Conservation Foundation (1980) 146 CLR 493, 522 (Gibbs J), citing Anderson v The Commonwealth (1932) 47 CLR 50, 51-52 (Gavan Duffy CJ, Starke and Evatt JJ); London Passenger Transport Board v Moscrop [1942] AC 332, 345 (Viscount Maugham) and Gouriet v Union of Post Office Workers [1978] AC 435, 482 (Lord Wilberforce), 514 (Lord Edmund-Davies).

26. In Pitt, after Doyle CJ found that there was an error of law which vitiated the exercise of discretion to order joinder he agreed, on balance, with Duggan J that it was appropriate for the Full Court to resolve the question of joinder.

27. The Chief Justice generally agreed with the approach taken by Duggan J to the question whether joinder should be ordered.  Although conscious of the fact that the Full Court should not lightly set out to exercise the functions of a specialist court, he thought that the factors outlined by Duggan J in favour of joinder were “compelling”.  In the circumstances, it was unnecessary to order relief in the proceedings for judicial review.[81]

    [81]   Pitt (1995) 66 SASR 274, 277.

28. In the course of his reasons, Duggan J rejected the proposition that the test for joinder required the demonstration of “special circumstances” as that was too narrow.  He favoured the view that the applicant for joinder was required to demonstrate “a special interest in the subject matter of the action”, relying on Australian Conservation Foundation.[82]Nonetheless Duggan J emphasised that a special interest would not, by itself, justify an order for joinder.  As his Honour went on to explain, consistently with the approach taken by Doyle CJ, an applicant for joinder also needed to establish other factors which made it appropriate to make an order for joinder. 

    [82]   Australian Conservation Foundation (1980) 146 CLR 493, 527.

29. When explaining the nature of the interest to be established, and the approach of the ERD Court, Duggan J explained that it was a proper exercise of the powers of the ERD Court to exclude mere meddlers or “busy bodies” from the proceedings.[83] 

    [83]   Pitt (1995) 66 SASR 274, 281, citing R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407, 422.

30. Whilst Duggan J thought that it was an “essential starting point” for the exercise of discretion to determine whether the applicant for joinder had a “genuine interest in the appeal”, this observation followed the distinction he had already drawn in favour of the test described in Australian Conservation Foundation, being a “special interest in the subject matter of the action”.[84] Duggan J incorporated both of these concepts into his analysis of the requisite interest of the applicant for joinder, emphasising that these alone would not warrant joinder. 

    [84]   Pitt (1995) 66 SASR 274, 281.

31. Indeed, that Duggan J had in mind an interest of the kind described in Australian Conservation Foundation is reinforced by the way in which he later approached the identification of the interest of the appellants in the case before him.  After referring to “the relevance of a genuine interest”[85] and the fact that the appellants were at risk of an order being made which would prejudicially affect their interests, Duggan J explained that he had already pointed out that “standing by itself such an interest might not lead to a successful application under s 17”.[86]  The use of the words “by itself” in this passage is revealing. This passage and these words referenced the earlier passage in his reasons where Duggan J had referred to Australian Conservation Foundation:[87]

    … a situation in which the applicant has “a special interest in the subject matter of the action” (Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 527) although I am not suggesting that the latter circumstance, by itself, would justify the making of an order for joinder.

    [85]   Pitt (1995) 66 SASR 274, 282.

    [86]   Pitt (1995) 66 SASR 274, 282.

    [87]   Pitt (1995) 66 SASR 274, 281.

1. Whilst the principles laid down by the Full Court in Pitt were expressed in an open way, and s 88(2)(c) is expressed in the negative, the same essential features and considerations remain common. Though Pitt did not concern a compromise, Doyle CJ and Duggan J each recognised that the relevant considerations would depend upon the particular circumstances of the case.  Moreover, O’Neill was a case where a potential compromise was not only considered but had occurred by the time the appeal to the Supreme Court was heard.

2. The preferable approach required recognition that the statements of principle laid down by the Full Court in Pitt continued to be relevant notwithstanding the fact of a compromise.  As both Doyle CJ and Duggan J in Pitt held, it was necessary but not sufficient that the Court be satisfied that the appellant had a genuine and sufficient interest, which may be described as a special interest, in the subject matter of the application. Unless that could be demonstrated, the application should be refused. 

3. Whilst the observation by Debelle J in O’Neill that, as a general rule, an adjoining landowner will be able to demonstrate a special interest in the subject matter of the planning appeal is probably too broadly expressed, the special interest of an adjoining owner will be readily demonstrated where the proposed development is likely to have a materially deleterious, and not merely trivial, impact on the amenity and value of the adjoining owner’s property.  Also relevant will be the extent of the adjoining landowner’s engagement in the process prior to joinder. 

4. Nonetheless, whilst necessary, demonstrating a special interest would not be sufficient.  It was also necessary to consider whether, whatever the interest of the appellant, the ERD Court should refuse joinder because it was not satisfied that the interests of justice required joinder.  Finally, it was also necessary for the ERD Court to consider whether it should refuse joinder on any other ground determined by it to be appropriate. 

5. Fundamentally, there was a failure to recognise that the appellant had demonstrated a special interest in the subject matter of the planning appeal.  The circumstances established before the ERD Court, including the fact of the compromise, did not require that joinder be refused, whether viewed from the perspective of the interests of justice or on any other ground determined to be appropriate by the ERD Court. 

   Second question: s 16 of the ERD Court Act

6. As has been explained, the approach of the appeal judge to s 16 of the ERD Court Act formed the centrepiece for the conclusion that the order for joinder should be set aside. As earlier explained, it was necessary to address s 88(2)(c) of the Development Act directly and not through the lens of s 16 of the ERD Court Act. 

7. Moreover, s 16(7)(d) did not require that the presiding officer record a settlement and make consequential orders unless precluded from doing so by s 16(9) of the ERD Court Act.[124]  Quite apart from the fact that the power to record a compromise is expressed in discretionary terms, it remained necessary for the ERD Court to determine whether it was empowered and appropriate to make orders, the effect of which were to grant development planning consent for the revised proposal. 

   [124] Reasons, [35].

8. Viewed more broadly, however, it must also be recognised that s 16 was introduced at the same time as s 17 of the ERD CourtAct. Section 16 has not previously been considered to have the pervasive effect now suggested, notwithstanding its co-existence with s 17 for nearly 30 years.

9. The purpose of a s 16 conference is explained by s 16(2): it is to enable a member of the ERD Court to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing. The ERD Court otherwise has a broad power to dispense with the conference, for example, if it is of the opinion that no useful purpose would be served by it or where there is some other reason that justifies dispensing with it, s 16(3). So as to assist the possible resolution of matters, a conference will be held in private unless the presiding member determines otherwise, s 16(5). That is reinforced by the stipulation in s 16(8) that evidence of anything said or done in the course of a s 16 conference is inadmissible except with the consent of all parties to the proceedings.

10. By s 16(6), a settlement entered into by counsel or any other representative appearing for a party is binding on the party. Whilst this kind of implication is generally made in the case of legal representatives,[125] the broader effect of this provision ensures that a party is also bound by “any other representative”. 

    [125] Harvey v Phillips (1956) 95 CLR 235, 242-243; Police v Mahon [2022] SASCA 76.

11. As outlined earlier, s 16(7) outlines a suite of orders that may be made and powers that may be exercised by the presiding member at a conference in the exercise of the member’s discretion. The range of orders and powers may be further expanded by s 16(7)(i), insofar as the rules of the ERD Court may provide for “other things” that may be done by the presiding member at a conference.

12. The discretionary nature of the power conferred by s 16(7)(d), together with the requirement that the ERD Court not make any order unless it is empowered and appropriate to do so, demonstrate that there is no mandatory requirement that the presiding member record a settlement and make consequential orders giving effect to it. Granted, in a case where the proposed settlement and consequential orders appear to be both within power and appropriate, it is unlikely that the presiding member will do other than give cursory consideration to whether the power should be exercised.[126] 

    [126] John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100, [20]-[22] (Croft J), “at a relatively cursory level”.

13. By contrast, an obvious example of a case where the s 16(7) power will not be exercised is where the presiding member has reason to doubt either the power to make the consequential orders or the appropriateness of doing so, notwithstanding that they represent the product of a compromise.

14. More relevantly for the present appeal, the power in s 16(7)(d) is expressly rendered subject to s 16(9). That provision is in two parts. The first part is mandatory and prevents the presiding member accepting a settlement that appears to be inconsistent with any relevant Act, s 16(9)(a). By contrast the second part is expressed as a discretion, s 16(9)(b). It posits as the pre‑condition for its exercise an evaluative question. That question is whether the settlement may materially prejudice a person not represented at the conference who has “a direct or material interest in the matter”. The purpose of this phrase is to identify who should be given notice and thereby an opportunity to participate in the s 16 conference, or seek joinder, or both.

15. The appeal judge confined the operation of this phrase in two ways when addressing the question of joinder. First, the relevant question was posed as whether the person had a “direct or material interest in the appeal”, rather than whether the person had “a direct or material interest in the matter”.[127] Secondly, s 16(9)(b) was confined to Category 3 representors, being the “paradigm case of a person with a direct and material interest …”.[128]

    [127] There is no need to repeat what was earlier said about the use of the word “proceeding” in r 8.5.1.

    [128] Reasons, [37]-[38].

16. Whilst the appeal judge acknowledged that s 16(9) was not in terms limited to persons notified of a Category 3 development, he concluded that those notified of Category 2 developments were not “persons with a direct or material interest in the compromise of a proponent’s appeal against a refusal of development consent”.[129]  In contrast to the effect of the approach taken in Pitt and O’Neill, the appeal judge held that a direct or material interest in the matter “cannot be found in the effect of the development on the amenity of nearby premises”.[130] That was so notwithstanding:[131]

    A Category 2 representor may well be interested in the outcome of a planning appeal because of the effects of the development on the amenity of their premises but that is not to be equated with a direct or material interest in the appeal.

    [129] Reasons, [39].

    [130] Reasons, [37].

    [131] Reasons, [39].

17. The appeal judge was fortified in this approach by the consequences of a contrary construction which would unnecessarily complicate and prolong the process of giving effect to a development consent where there has been a compromise.  Also important to his Honour’s approach was that a Category 3 representor, and not a Category 2 representor, had an appeal as of right. 

18. Respectfully, there are a number of difficulties with the approach taken. First and foremost, the clear words of s 16(9)(b) were narrowed by resort to implications which find no expression in the ERD Court Act.  Secondly, the approach to the interests of a Category 2 representor and the effect of the joinder of that party is contrary to the approach taken by the Full Court in Pitt nearly 30 years ago, and in O’Neill more than 15 years ago.  Both Doyle CJ and Duggan J emphasised that the effect of joinder, and whether the appeal would be unduly prolonged, were relevant but not necessarily determinative considerations. Debelle J followed that approach.

19. Finally, but perhaps most importantly, there is no textual or contextual warrant for confining the operation of s 16(9)(b) the ERD Court Act, and its reference to those with a direct or material interest, to Category 3 representors.  The statutory language is that there be a “direct or material interest in the matter”, not the appeal.  As earlier explained, an interest which is material may nonetheless be indirect.  In addition, it is well recognised that a “matter”, including any justiciable controversy within it, is not synonymous with the legal proceeding in which it may be determined.[132]

    [132] Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398, 408, [43]-[44], citing Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, [37] and Re Wakim; Ex parte McNally (1999) 198 CLR 511, 585, [138]-[139]. See also CGU Insurance Ltd v Blakeley (2016) 259 CLR 339, [44].

20. Whilst the preferable view is that the direct or material interest must be found in the matter and not merely the appeal, the relevant question in this case was whether a Category 2 representor who is not represented at a s 16 conference can be said to have a direct or material interest in whether the proposed or revised proposal should be approved. That was the issue raised by the respondent’s Notice of Appeal to the ERD Court and it necessarily involved a proper application of the provisions of s 33(1)(a) of the Development Act, together with the mandate to assess the development against the provisions of the Development Plan.[133]  That issue is not determined by asking whether the absent party has a right to appeal. 

    [133] Gibbs v City of Charles Sturt (2010) 176 LGERA 341, [44] (Bleby J).

21. As with the question of joinder, the real issue is bound up in whether the absent person, usually a representor, has a direct or material interest in whether approval should be granted. The scope for the development to deleteriously impact the amenity and value of the property owned or occupied by Category 2 representors, together with any demonstrated interest in the merits of the proposal and whether it should be approved under the applicable planning law and instruments, demonstrated the existence of a direct or material interest in the matter for the purposes of s 16(9)(b) of the ERD Court Act, together with a special interest in the subject matter of the planning appeal for the purposes of s 88(2)(c)(i) of the Development Act. 

22. The appeal judge found that the ERD Court erred in assuming that there would be a hearing de novo on the merits. The short answer is that whether the ERD Court made that assumption did not show that it had made a material error. This was only regarded as an error where it was suggested that the effect of ss 16(7) and 16(9) of the ERD Court Act conferred what amounted to a right to avoid that kind of hearing by having orders made that gave effect to the compromise. 

23. Having identified the relevant issues, the ERD Court found that the applicants for joinder would likely make an appropriate contribution to the proper resolution of the proceedings which would not traverse the contribution likely to be made by SCAP. Indeed, that contribution is likely to be important where SCAP had not referred the revised proposal to a relevant referral authority under s 37 of the Development Act and reg 20 of the Development Regulations1993 was not followed because it was thought the “variations … are not substantial” (reg 20(1a)). 

24. Whether the matter proceeds to a hearing de novo on the merits will depend on what next occurs. As earlier outlined, it will be for the ERD Court to determine whether it has power to approve the revised development proposal as well as whether it is appropriate to enter orders to that effect, or by contrast proceed with a s 16 conference or a hearing on the merits, or both.[134]  Even if it is thought that a hearing de novo is likely, the ERD Court may still wish to explore the possibility of settlement at a re-convened s 16 conference so as to gauge the attitude of the parties, before deciding the preferable course to be taken. Discretionary decisions such as these are best left to the ERD Court in the management and conduct of its business.

    [134] ERD Court Reasons, [102], [107]-[108].

25. As for the notice of contention, once it was determined that the appellant had a special interest, in the circumstances it was not inappropriate to order joinder. The matters highlighted in the notice of contention were taken into consideration by the ERD Court.  At the heart of the notice of contention lies the proposition that these matters required that the application for joinder be refused.  That proposition should be rejected.  Whether the ERD Court invited the appellant to address it as intervenor so as to address issues such as the possible infringement of the Lady Becker principle, or ordered joinder to facilitate that course, was essentially a matter for the exercise of the discretion of the ERD Court.  It was not bound to proceed in the limited way suggested, nor was it required to insist that the appellant take judicial review proceedings.  Indeed, it would be relevant to those proceedings that there exists a procedural vehicle recognised by the relevant legislation and the rules to address these kinds of issues.[135]

    [135] See, for example, R v Marshall [2023] SASCA 105, [177] (Livesey P, David JA and Kimber AJA), citing McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [81] (Doyle J); Ibrahim v Medical Board of Australia [2015] NSWCA 207, [75] (referring to “the well-established principle that relief of the kind available under s 69 of the Supreme Court Act 1970 (NSW) will not generally be granted if there is another equally effective and convenient remedy, such as here, the right of appeal from a decision of the Board to the Tribunal …”); Victorian Workcover Authority v BSA Limited & Ors [2017] VSCA 276, [10].

26. Finally on the notice of contention, the ERD Court made no error when assessing the prejudice associated with making the order for joinder, as well as in evaluating the public interest in the efficient disposition of planning proceedings. Even if one allows for the proposition that the appellant will not agree to the revised proposal, that does not mean that the ERD Court will not explore settlement at a re-convened s 16 conference, or that any planning appeal will be unduly prolonged.

27. Assuming that the matter does not resolve, whether there is a contested merit appeal (as the respondent described it) will depend on the apparent strength of the objections.  If there is no merit in them then the challenge will fail and the compromise will, in effect, likely be approved.  If there is merit in the objections, then the core difficulty for the compromise will remain that it did not represent an appropriate resolution of the planning issues at stake. 

28. The prospect that joinder might ultimately unearth that core difficulty, and be associated with some delay, does not mean that joinder should have been refused, or that it was not in the public interest to ensure that the merit of what was proposed be publicly examined by the ERD Court in accordance with the relevant planning law and instruments.  The notice of contention should be dismissed.

    Disposition of the appeal

29. The appeal judge erred in the approach taken to the construction of both s 88(2)(b) of the Development Act and s 16(9)(b) of the ERD Court Act. Strictly, it was necessary to address whether an order for joinder for should be made having regard to the terms of s 88(2)(b) rather than consider whether there was an obligation in the ERD Court to implement the compromise under s 16(7).

30. In fact, s 16(9) was not directly relevant to the disposition of the joinder application though it was relevant for the ERD Court to consider the relevance and impact of both the compromise and joinder. In that sense, ss 16(7) and 16(9) were relevant as part of the statutory framework in which the rights and interests of the parties and the applicants for joinder fell to be determined.

31. Once those errors of law are recognised and corrected, it is clear that the appellant in this case demonstrated the existence of a special interest under s 88(2)(c)(i) of the Development Act, as well as a direct or material interest under s 16(9)(b) of the ERD Court Act. 

32. It follows that the ERD Court made no error of law in its approach to the question of joinder. 

33. As for the exercise of its discretion, it was suggested that excessive weight was given to the prospect that there might be a de novo hearing on the merits as well as the assistance that the appellant (together with the other applicants for joinder) may be in a position to provide.  Once the appellant’s proper standing is recognised, and it is appreciated that the compromise is a relevant but not decisive circumstance, it is difficult to discern error in the exercise of discretion to order joinder. 

34. Once an order for joinder is made, the ERD Court will consider the compromise and the consequential orders sought with the assistance of a contradictor.  On the face of it there may, at the least, be real issues about whether the revised proposal is seriously at variance as well as whether it was “substantially different” from the original plan and, thereby, in breach of the Lady Becker principle.[136] The applicants for joinder are likely to be in a position to assist the ERD Court with these matters, whether at a s 16 conference or in a hearing de novo on the merits, or both. 

    [136] City of Marion v Lady Becker (1973) 6 SASR 13, 28, 24 and 26 (Wells J). See also 44 (Bray CJ), 58 (Hogarth J) and 62, 67 (Zelling J). In Independent Holdings Ltd v City of Adelaide Planning Commissioner (1994) 63 SASR 318, 327, Millhouse J considered whether the revision altered “the essential character of the proposed development”. The ERD Court has since generally posed the question as whether the revision is “fundamentally different in character”, Citify Pty Ltd v Corporation of the City of Marion [2021] SAERDC 30, [32]; Clarke v District Council of Grant [2016] SAERDC 36, [51].

    Conclusion

35. The appeal should be allowed.  The notice of contention should be dismissed.

36. The orders made by the appeal judge should be set aside and those made by the ERD Court should be restored.

37. It will be necessary to hear from the parties as to costs.