Moloney v 21-25 South Esplanade Pty Ltd

This case concerned an appeal to the Full Court of the Supreme Court of South Australia regarding a development application. The appellant, Mr Moloney, an adjoining landowner, sought to oppose a large apartment building proposed by the respondent, 21-25 South Esplanade Pty Ltd. The development, which involved demolishing heritage-listed dwellings, was significantly taller and more voluminous than permitted by the relevant Development Plan. The State Commission Assessment Panel (SCAP) initially refused planning consent due to substantial departures from the Development Plan's objectives regarding scale, massing, and heritage protection.

The legal issues before the Full Court included whether the Environment, Resources and Development (ERD) Court had erred in its approach to joinder applications under section 88(2)(c) of the Development Act, and the proper application of section 16 of the ERD Court Act. Specifically, the court considered the extent to which an applicant for joinder, such as Mr Moloney, should be permitted to contest the merits of a development application, and the ERD Court's powers and obligations when considering such applications, particularly in light of potential compromises and consequential orders.

The Full Court reasoned that once an order for joinder is made, the ERD Court is empowered to consider the merits of the development, potentially with the assistance of a contradictor. The court found that there were arguable issues regarding whether the revised development proposal was seriously at variance with the Development Plan and whether it constituted a "substantially different" development from the original, thereby potentially breaching the principles established in cases like *City of Marion v Lady Becker*. The court determined that applicants for joinder are likely to be in a position to assist the ERD Court with these matters, whether at a section 16 conference or in a hearing de novo.

The appeal was allowed, the notice of contention was dismissed, and the orders made by the appeal judge were set aside and replaced with those made by the ERD Court. The Full Court indicated that it would hear from the parties regarding costs.