Paul v The Corporation of the City of Marion - [2021] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
PAUL & ANOR v THE CORPORATION OF THE CITY OF MARION
[2021] SASC 3
Judgment of the Honourable Justice Parker
28 January 2021

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - EXTENSION OF TIME TO COMMENCE DEVELOPMENT
This is an appeal against the decision of a Commissioner of the Environment, Resources and Development Court of South Australia to refuse an extension of the operative period of a Development Plan Consent (DPC).
On 10 May 2019, the appellants were granted DPC with effect from 19 March 2019. Pursuant to s 40(2) of the Development Act 1993 (SA) and reg 48 of the Development Regulations 2008 (SA) the DPC expired after 12 months, i.e. on 19 March 2020.
On 10 March 2020, the appellants requested that the respondent extend the operative period of the DPC under s 40(3) of the Development Act. On 25 March 2020, the respondent refused to extend the operative period. The appellants appealed to the ERD Court on 30 March 2020 and sought a 12 month extension. On 11 September 2020, a Commissioner dismissed the appeal.
The appellants appealed to this Court on 12 grounds, summarised as:
•       In relation to the timing of the appellants’ application for an extension of the operative period, the Court erred in law by finding that the appellants delayed applying for the extension, or in the alternative, by imposing a wrong standard of reasonableness. Further in the alternative, the Court erred in fact in failing to find that any delay was short.
•       The Court erred in fact (or mixed fact-and-law) in finding that it was not reasonable for the appellants to: (i) assume that an extension would be granted as of course; (ii) not take steps to obtain building rules consent within 12 months; and (iii) not seek an extension of the operative period until some days before it was due to expire.
•       The Court erred in law in not accepting that it was reasonable for the appellants to: (i) evaluate market conditions; and (ii) not take further steps to progress the proposed development while they considered doing so was not viable.
•       The Court erred in fact (or mixed fact-and-law) in failing to find that the appellants would suffer substantial prejudice if an extension was not granted.
•       The Court’s discretion miscarried or, alternatively, was legally unreasonable or wrong. In the alternative, the Court erred in law by effectively punishing the appellants for what the Court perceived to be a failure to seek an extension at a sufficiently early juncture.
•       The Court erred as a matter of logic in reasoning that the fact of a “hard fought” DPC somehow necessitated or obliged the appellants to make an early application to extend the operative period.
•       The Court erred in fact by making a number of findings in relation to the viability and potential losses of the development proposed to be undertaken by the appellants.
•       The Court erred in law by requiring the appellants to “demonstrate the requisite commitment to the project”.
The respondent filed a notice of alternative contention that, in substance raised two key issues for consideration. First, should the Court have placed greater weight on prejudice to the respondent/community in exercising its discretion. Second, should the Court have had regard to the defects in the processing of the original development application lodged by the appellants.
Held, per Parker J, dismissing the appeal:
1.      The Commissioner did not err in holding that the application for an extension of the operative period was subject to delay.
2.      The Commissioner did not err by failing to find that any delay was “short”.
3.      The Commissioner did not err in law by imposing a wrong standard of reasonableness or by taking a wrong approach to the question of reasonableness.
4.      The Commissioner did not err in finding that it was not reasonable for the appellants not to take any action to advance the project within the 12 month period.
5.      The Commissioner did not err in law by not accepting that it was reasonable for the appellants to evaluate market conditions and not to take any further steps to advance the proposed development until they considered that it was viable.
6.      The Commissioner did not err by failing to find that the appellants would suffer substantial prejudice if an extension was not granted. Contrary to the appellants’ contention, the Commissioner found that the appellants would “clearly be prejudiced” if their appeal were to be dismissed.
7.      No outcome error occurred in the exercise of the Commissioner’s discretion.
8.      The Commissioner did not err in law by, as the appellants contend, effectively punishing the appellants for what he perceived to be a failure to seek an extension at a sufficiently early time.
9.      No process error or an outcome error occurred in the Commissioner’s reasoning that the fact that the consent had been “hard fought” required the appellants to make an early application to extend the operative period.
10.    The Commissioner did not err in fact in finding that the appellants had determined that the project was not viable throughout the life of the DPC and not likely to be viable for the foreseeable future.
11.    The Commissioner did not err in law by according decisive weight to his finding that there was a lack of diligence on the part of the appellants.
12.    It is unnecessary to consider the alternative contentions advanced by the respondent.
Development Act 1993 (SA) ss 24, 25, 26, 27, 28, 29, 33, 40 ; Development Regulations 2008 (SA) r 48; Emergency Management Act 2004 (SA) ; Environment, Resources and Development Court Act 1993 (SA) ss 30(2), 88; Uniform Civil Rules 2020 (SA) r 218.17, referred to.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Fox v Percy (2003) 214 CLR 118; Hall v City of Burnside (2005) 92 SASR 579; Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside [2002] SASC 308; House v The King (1936) 55 CLR 499; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Reschke v Trevor Reschke Nominees Pty Ltd [2018] SASC 120; Saturno Group of Companies v Moustos and City of Happy Valley Corporation (1996) 92 LGERA 376, applied.
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Marion City Corporation v Kassere Pty Ltd (1995) 86 LGERA 41; Parry v The City of Holdfast Bay [2007] SAERDC 23; Shahin Enterprises Pty Ltd v Development Assessment Commission [2019] SASCFC 44; Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder & Ors [2014] SAERDC 48, discussed.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Keller v Drainage Tribunal and Montague [1980] VR 449; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Health v Thomson (1985) 8 FCR 213; R v Lutze (2014) 121 SASR 144, considered.

PAUL & ANOR v THE CORPORATION OF THE CITY OF MARION
[2021] SASC 3

Land and Valuation Division: Civil

PARKER J: The appellants, Mr and Mrs Paul, challenge the refusal by a Commissioner of the Environment, Resources and Development Court (ERD Court) to extend the operative period of a Development Plan Consent (DPC). The Commissioner was hearing an appeal against the decision by the respondent, the City of Marion, to refuse an extension.
The appeal has been brought under s 30(1)(b) and s 30(2) of the Environment, Resources and Development Court Act 1993 (SA). The respondent has lodged a notice of alternative contention by which it seeks to defend the refusal to extend time on grounds additional to those decided by the Commissioner.
The grounds of appeal
The appellants initially advanced 14 grounds of appeal. However, ground 1 is not pressed as it was based upon a mistake in the Commissioner’s reasons that has since been corrected under the slip rule.[1] Ground 11 is also not pressed. The remaining 12 grounds of appeal are as follows:
[1]    The original version of the Commissioner’s reasons referred to an incorrect regulation number.
2.The Court erred in law in holding that the Appellants’ application for an extension of operative period was attended by any delay.
3. In the alternative, the Court erred in fact in failing to find that any delay was short.
4. In the alternative, the Court erred in law by imposing a wrong standard of reasonableness, or taking a wrong approach, namely, that a reasonable person would foresee difficulty and accordingly seek an extension of operative period at a sufficiently early juncture to allow, first, the extension application to be determined by the respondent and if that were refused, second, the obtaining of a building rules consent in order to obtain the same extension of time.
5. The Court erred in fact (or mixed fact-and-law) in finding (at [16]) that it was not reasonable for the Appellants:
a.     to assume, based on past experience, that a 12 month extension would be granted as of course;
b.     to not take steps to obtain building rules consent within 12 months; and
c.     not seek an extension of the operative period until some days before it was due to expire.
6. The Court erred in law in not accepting that it was reasonable for the appellants to: (i) evaluate market conditions; and (ii) not take further steps to progress the proposed development while they considered doing so was not viable, in circumstances where the Court accepted:
a.     the Appellants were knowledgeable property developers (at [35]-[36]);
b.     the Appellants monitored market conditions in order to ascertain whether to proceed (at [41], [42]);
c.     at least until an extension was sought, the appellants considered the proposed development to be unviable (at [13]);
d.     the Appellants’ experience was that extensions were granted as of course (at [14]); and
e.     the Appellants were unaware of any impending or actual change to the Development Plan which was adverse to the proposed development (at [36]).
7. The Court erred in fact (or mixed fact-and-law) in failing to find that the Appellants would suffer substantial prejudice if an extension was not granted.
8. The Court’s discretion miscarried or, alternatively, was legally unreasonable or wrong in circumstances where:
a.     the Court accepted that substantial expenditure of about $66,000 had been made on the proposed development which would be wasted if an extension was not granted (at [24]);
b.     the Court found that making a further application for the same development or any development of 4 dwellings would almost certainly not succeed (at [21], [39]);
c.     the Court found that the appellants would suffer prejudice if an extension was not granted (at [44]);
d.     the Court should have found that the appellants would suffer substantial prejudice if an extension was not granted (Ground 7);
e.     the Court accepted that, if the development was undertaken, prejudice to proper planning and the community was ‘not of great order’ and ‘not severe’ (at [25]);
f.     the Court should have found that there was no delay or little delay in seeking the extension (Grounds 2 and 3 above); and
g.     the Court should have found that, on the evidence accepted at [9]-[12], [14]-[15] and [36], it was reasonable for the Appellants to act as identified in Ground 5 above (Grounds 5 and 6).
9. In the alternative, the Court erred in law by effectively punishing the appellants for what the Court perceived (at e.g. [40], [45]) to be a failure to seek an extension at a sufficiently early juncture.
10. The Court erred as a matter of logic in reasoning that the fact of a ‘hard fought’ consent (at [16], [45]) somehow necessitated or obliged the Appellants to make an early application to extend the operative period.
12. The Court erred in fact in:
a.     finding (at [13]) that appellants had determined that the project was not viable throughout the life of the DPC and likely not to be viable for the foreseeable future;
b.     finding (at [44]) or speculating that ‘what is unknown is the potential losses incurred from proceeding with the project’; and
c.     failing to find that a development of 3 or less dwellings was likely to be loss-making, whereas proceeding with the proposed 4 dwelling development at least had a real likelihood to turn a profit and would in any event minimise the appellants’ losses as compared with other reasonable scenarios.
13. The Court erred in law by requiring the appellants to ‘demonstrate the requisite commitment to the project’ (at [46]).
14. The Court erred in law in its approach to weighing the relevant factors by according determinative weight to what the Court perceived to be a lack of diligence or commitment (at [40], [46]).
Alternative contention
The respondent filed a notice of alternative contention containing three grounds. However, ground 3 is not pressed. The two alternative contentions relied upon by the respondent are as follows:
1.In exercising its discretion, the Court should have placed greater weight on prejudice to the Council/community as:
a.     The Commissioner should have placed greater weight on his finding that it would be “at odds with what appears to be a prevailing predominance of low density detached swellings, as well as the more contemporary residential infill in the nature of semi-detached dwellings.” (At [22]).
b.    The “timeframes the appellants are prepared to work to” as referred to in [25] are limited to obtaining building rules consent, and do not relate to the commencement of construction.
c.     The Commissioner erred by finding that the timing of the introduction of policy changes under the DPA was a factor in favour of the appellants.
2.The Court should have had regard to the defects in the processing of the original development application arising from the appellants’ failure to lodge a land division application and the Court should have considered this as a factor weighing against the appellants in the exercise of the Court’s discretion.
Background
On 3 November 2017, the appellants applied for a DPC under s 33 of the Development Act 1993 (SA). Consent was granted on 10 May 2019 with effect from 19 March 2019. The appellants proposed to construct two residential flat buildings each of two-stories. Each building was to comprise two dwellings with associated carparking and landscaping. In accordance with s 40(2) of the Development Act and, as it then stood, reg 48 of the Development Regulations 2008 (SA), the DPC expired after 12 months. Thus, the DPC expired on 19 March 2020.
On 10 March 2020, the appellants requested that the respondent extend the operative period of the DPC under s 40(3) of the Development Act. While the appellants did not specify the length of the extension they were seeking, the respondent proceeded on the basis that they had sought a 12 month extension. On 25 March 2020, the respondent refused to extend the operative period. The appellants appealed to the ERD Court on 30 March 2020 and sought a 12 month extension. On 11 September 2020, a Commissioner dismissed the appeal.
The appeal to the ERD Court was an appeal de novo.[2] Thus, the Commissioner was not limited to consideration of only the information that had been before the respondent when it made the impugned decision. The Commissioner was required to make a fresh decision after having regard to the evidence and submissions before the ERD Court. However, the appeal to this Court proceeds by way of rehearing.[3] The appeal lies as of right on a question of law but permission is required on questions of fact.[4]
[2] Environment, Resources and Development Court Act 1993 (SA) s 88.
[3] Uniform Civil Rules 2020 (SA) r 218.17.
[4] Environment, Resources and Development Court Act s 30 (2).
The agreed facts and the evidence
The parties agreed on 21 facts. The agreed facts establish that the appellants own two adjacent allotments of land in Thomas Street, South Plympton. One allotment is owned by the first appellant, Mr Paul, and the other by the second appellant, Mrs Paul. The land is occupied by a single-storey house which straddles both allotments. The appellants became the registered proprietors of the land in April 2017.
On 2 November 2017, the appellants applied to the respondent for development approval to demolish the existing building and to erect four residential townhouse dwellings. The respondent characterised the proposed development as the construction of two two-storey residential flat buildings, each comprising two dwellings with associated carparking and landscaping. The respondent granted development plan consent with effect from 19 March 2019.
On 10 March 2020, the appellants applied to the respondent for an extension of the operative period of the DPC. The sole ground stated in their application was “economic reasons”. The respondent advised by letter dated 25 March 2020 that it had refused the request. The respondent did not provide any reasons for that decision. However, the parties agreed that the reasons for the refusal are stated in a document dated 24 March 2020 that is included in the respondent’s book of documents. The stated reasons can be summarised as:
·Due to the amendments to the Development Plan, the proposal does not satisfy the minimum site area requirements. The shortfall is 98 m² or 28 per cent.
·The proposal also does not now satisfy the driveway landscaping requirements which have increased from 500 mm to 800 mm.
·The desired character in the Policy Area has changed notably, with a greater emphasis on built form and landscape character.
·If the proposal was to be lodged now, the likely determination would be different.
·If an extension of time is refused there is a realistic prospect that the applicant will no longer be able to proceed with the proposal. However, this prejudice was considered reasonable as the applicant should not have relied upon the Council granting an extension of time.
·If the extension must be approved, there was a potential corresponding prejudice to other nearby properties and the public as a whole due to development occurring after the amendments to the Development Plan in a manner that was not envisaged and contrary to the intent of the policy that now applied.
As at the date of the appellant’s application for planning permission, the relevant Development Plan was the consolidation dated 28 April 2016. Under that Development Plan the subject land was within the Residential Zone and, more particularly, within Medium Density Policy Area 12.
The Development Plan was relevantly amended from 15 August 2019 so that the subject land was now within Marion Plains Policy Area 8. In September 2017, the respondent arranged for copies of documents describing the effect of the changes to the Development Plan to be delivered to properties within the Council area. However, neither the appellants nor the respondent can say whether those documents were delivered to the subject land. The respondent did not advise the appellants, nor did they inform any other holder of a current development authorisation, about the amendments to the Development Plan. However, the parties agree that the respondent was not required by the Development Act to do so.

The first appellant, Mr Paul, swore a lengthy affidavit and was cross‑examined on its contents. He stated that he had purchased the subject land for the sole purpose of demolishing the existing buildings. He and his wife intended to develop the land by building at least four dwellings as was then permitted by the Development Plan. He stated the combined area of the two allotments was 1,008 m² and the Development Plan required that each have a minimum site area of 250 m².
Mr Paul also stated that the total outlay on the purchase of the land, stamp duty and other fees and charges, was $725,188.63. That expenditure was financed by drawing on an existing line of credit secured by a mortgage.
After obtaining advice from architects, surveyors and engineers, an architectural design for the proposed development was finalised.
Mr Paul stated that the processing of the application by the respondent was protracted. The respondent made numerous requests for further information and sought changes to the plans. It had been necessary for the appellants to obtain legal advice before the respondent ultimately granted the DPC.
Mr Paul further deposed that he had requested one of his staff to lodge the application for an extension of time. The staff member had incorrectly acknowledged that the Development Plan had been amended since DPC was granted. In fact, Mr Paul stated that he was not aware of the change to the Development Plan until his solicitor had later advised him of this fact. He had not received any notification from the Council of the change, nor had he been made aware by way of media release.
Mr Paul also stated that he and his wife and his brother are involved in the development of, generally, commercial buildings by either erecting new buildings or refurbishing existing structures. They have conducted a number of such developments within the area of the respondent Council. That has included some eight residential flat developments in the Council area plus four in other council areas. The residential developments have been sold but the commercial developments are often leased.
Due to that background, Mr Paul stated that he has some knowledge of the South Australian planning system and the respondent’s Development Plan. He is aware that proposed developments generally need to accord with the relevant Development Plan. He is also aware of building costs. He believes that he has considerable experience in building and valuation and keeps abreast of the value of land and of buildings and rental returns for non-residential developments. Due to his experience and contemporary market knowledge, he generally determines and conducts his own feasibility studies and believes that they have proven to be accurate. He is also aware of the cost of borrowing funds and the terms of loans, as that will affect the economic feasibility of any project. He applies this knowledge in conducting projects.
To that end, Mr Paul prepares spreadsheets to assist him to determine whether a project is economically viable. He considers that banks and other financiers have regarded his spreadsheets as providing a sophisticated and practical report that has assisted in the provision of finance without the need for the lender to obtain advice from a quantity surveyor or a valuer.
Mr Paul annexed to his affidavit a copy of a spreadsheet dated 21 March 2017 that he had prepared in relation to the proposed development. He also exhibited an updated spreadsheet prepared on 1 June 2020. This latter spreadsheet seeks to estimate the likely return on investments following the decision by the respondent to refuse to extend the operative date of the DPC.
Mr Paul further stated that while the house on the subject land was currently rented and produced a return of about 1.3 per cent per annum, it had never been his intention or that of his wife that the property simply be rented as that was not economically feasible.
Mr Paul contended in his affidavit that the economic conditions in South Australia had been better during 2018 than in 2019. Building costs were also lower in 2018. It had taken about 18 months to obtain DPC. Had consent been granted within six months, the appellants would have commenced construction by early to mid-2018.
Mr Paul stated in that in the month or two before expiry of the DPC, the building market had not been as buoyant as it had previously been due to the effect of the COVID-19 pandemic. He had also been advised that building materials may be difficult to obtain and many projects had not commenced for that reason. For these reasons, Mr Paul and his wife had decided not to demolish the house on the subject land as it would produce some rental income until the DPC was extended. They had decided to delay the development until the effects of the COVID-19 pandemic were fully known. They considered that it would not be prudent to undertake development at that time and had decided to act conservatively so that the project did not become a burden on themselves, their builder and the respondent. Nevertheless, they remained committed to the development at an appropriate time. If the DPC were not extended, their costs would be in the order of $66,126. Those were direct costs which would be thrown away.
While the appellants sought an extension of 12 months, if the ERD Court granted an extension, they would proceed to obtain building rules consent and then development approval. While they did not expect that the sale price for the proposed townhouses would increase, the development would provide a return rather than losses thrown away.
Mr Paul also stated that if they were required to lodge a fresh application for DPC, the appellants expected to incur further costs of at least $8,500 excluding holding costs or escalations due to any delays. Mr Paul also expressed concern that if it was necessary for the application to be reconsidered by the staff of the respondent, due to their attitude, the proposal would not be supported.
At this point I note that there is a factual dispute as to whether Mr Paul misled the respondent concerning the applicants’ intentions about sub-division of the subject land. The parties also advance different contentions as to what effect on decision making an intention to sub-divide may properly have had under the Development Plan. There is a further question as to whether the Commissioner erred by treating these issues as irrelevant to his decision. I will return to these matters.
The Commissioner’s reasons
The Commissioner held that although the extension had been sought prior to expiry of the approval, it had not been pursued sufficiently far in advance of the expiry to enable a building rules consent or development approval to be obtained. In the view of the Commissioner, the appellants “needed to be committing resources to the project and actioning BRC documentation” by no later than mid-November 2019 if they were to obtain building rules consent in advance of the lapsing of the DPC.
The Commissioner noted the evidence of the appellants that they had elected not to press on with the development during 2019 due to their assessment of the property market. Subsequently, even greater market uncertainty was caused by the Adelaide Hills and Kangaroo Island bushfires and then the COVID-19 pandemic. Market conditions had “softened” in 2019 and building prices had escalated considerably. The Commissioner also observed that the first appellant, Mr Paul, had conceded that during 2019 he had “a lot of projects on at the same time and I’ve got to be careful what I start and what I don’t start”.
The Commissioner also noted that the appellants had not advanced the project in any way when the consent lapsed. They had not made any contact with their building designer, structural engineer or surveyor to establish how long it would take to prepare the necessary documentation to apply for building rules consent and the division of the land. They had determined that the project was not viable throughout the life of the consent and was not likely to be viable for the foreseeable future.
Mr Paul also stated that, based on his past experience, he did not contemplate that the extension would be refused. He assumed that if the request for an extension was made before lapse of the approval, an extension would be granted as a matter of course. For these reasons, he did not consider it necessary to have the documentation prepared so as to undertake the approved development. If the respondent had made its position on such matters clear to him, he would have lodged a plan of division and/or actioned the building rules consent documentation.
The Commissioner observed that it was reasonable to expect that the appellants, being experienced developers with a regular and ongoing relationship with their building designer and engineer and also a relationship with their lawyer, town planner and traffic engineer, would be readily capable of obtaining advice and being properly informed about the uncertainties of gaining an extension to the DPC and also the effect of the changes to the Development Plan upon their prospects of being granted an extension. Furthermore, the Commissioner also noted that as the focus of the appellants’ development activity was within the Marion Council area, it could reasonably be expected that they would have contacted the respondent’s planning staff once they decided not to proceed under their approval. Given that the grant of consent had been “hard fought”, it should not have been assumed that an extension would be automatic. That was not a reasonable position for the appellants to adopt. For these reasons, the Commissioner concluded that the appellants had not acted diligently to execute the approved development.
The Commissioner noted that, at the time consent was granted, the consolidation of the Marion Council Development Plan dated 28 April 2016 was in operation. However, about five months after the grant of consent, on 15 August 2019, the Development Plan was amended. The subject land was no longer contained within the Medium Density Policy Area 12 of the Marion Residential Zone, but was now within the Marion Plains Policy Area 8 of the Residential Zone. The result was that the desired minimum dwelling site area for a dwelling in the nature of a residential flat building had increased from 250 m² to 350 m². In fact, a dwelling of all defined types, with the exception of a row dwelling, was now required to have a minimum desired site area of no less than 350 m². The amendment to the Development Plan had also introduced more onerous requirements as to the minimum width alongside driveways in “battle-axe” styled dwellings at the rear of land without any direct public road frontage. However, the desired maximum building site coverage and the building density standards applicable to the subject land had not changed.
While observing that it was not the task of the Court to conduct a detailed evaluation of the proposal against the former or current Development Plan, the parties accepted that the appellants’ proposal would be unlikely to gain approval under the current Development Plan provisions because of the increase in the desired minimum dwelling site area. The result was that the subject land could properly only support three dwellings, rather than the four that had been approved.
The Commissioner referred to the decision of Judge Trenorden in Parry v The City of Holdfast Bay[5] where her Honour held that the grant of an extension to a development which was at serious odds to a revised planning regime was contrary to the public interest as it would permit construction contrary to the current policies. The Commissioner observed that in the matter before him “it would also be at odds with what appears to be a prevailing predominance of low density detached dwellings, as well as the more contemporary residential infill in the nature of semi-detached dwellings”.
[5] [2007] SAERDC 23.
Notwithstanding those observations, the Commissioner concluded that, “... the prejudice to the [respondent], and the community, in granting an extension … and its consequences are not severe.” That observation was made in response to the submission by counsel for the appellants that the changes to the Development Plan were relatively recent and it could be expected that applications lodged prior to that time would still be undergoing assessment by the respondent. Furthermore, it was possible that projects approved prior to the change may not be concluded for another two to three years due to the timeframes allowed for the various steps in the process. The Commissioner also referred to the likelihood of the appellants suffering a loss of some $66,000 for costs thrown away in obtaining the DPC, together with interest, and further costs of at least $8,500 in lodging a fresh development application.
The respondent submitted to the ERD Court that it had erred in accepting and processing the application without first having decided a land division application. The latter had initially been requested from the appellants, but had not occurred. This resulted in the respondent mistakenly processing the application on the basis that it related to residential flat buildings, so there were to be two dwellings occupying discrete sites facing the street. Thus, the respondent submitted that the Court should give weight to the fact that it was a “bad consent” that was now being sought to be extended.
The Commissioner noted that Mr Paul conceded in cross-examination that it had always been his intention to subdivide the land and sell the dwellings. However, based on his legal advice and so as to obtain a procedural advantage, he had not applied for a land division. Mr Paul acknowledged that this had resulted in the two dwellings fronting the street not being defined as semi-detached dwellings which would have required a greater minimum dwelling site area. The approach he had adopted also supported the calculation of the dwelling site area being averaged over the whole of the subject land.
The appellant responded to the contention that there was a “bad consent” with the submission that the merits of the approved proposal were not relevant in a de novo hearing, nor was it appropriate to reconsider the procedures adopted by the respondent in reaching its decision.
The appellants also submitted that a decision of Judge Cole in Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder & Ors established that a division of land was not required in the circumstances before the Court.[6] However, the Commissioner rejected that contention as, in his view, the appellants had misconstrued the principle stated by Judge Cole. Thus, the Commissioner found that the appellants ought to have lodged an application for the division of land so that the respondent could properly understand the nature of the proposed dwellings and assess them accordingly. However, the Commissioner also concluded that in a de novo hearing the merits of the proposed development were not relevant and nor was it appropriate to re-visit the procedures adopted by the respondent in making its decision.
[6] [2014] SAERDC 48.
The Commissioner rejected a submission on behalf of the appellants that it was a relevant consideration that the respondent had failed to inform them, and others potentially in the same position, about the pending changes to the Development Plan. The Commissioner held that applicants for development approval carry the burden of properly informing themselves about changes. While that may be difficult for most members of the community, the appellants were experienced developers with 35 years experience and their business focussed on the Marion Council area.
The Commissioner also referred to the fact that the appellants had offered to act upon any extension within less than the 12 month period that they had sought.
The Commissioner held that while the concern expressed by the appellants about market conditions and the effect of the COVID-19 pandemic upon market sentiment and pricing were understandable, the decision to wait until the last moment before seeking an extension belied the appellants’ purported commitment to the project. The Commissioner considered that they were “spectating” market conditions until they worked out what they wanted to do with the DPC. That reflected their ambivalence to the project, which had apparently been conceded by Mr Paul. Although the appellants would clearly be prejudiced by some $66,000 in costs being thrown away, it was unknown what potential losses they may incur if they proceeded with the project, a risk that they were now apparently willing to bear.
While the focus of the appellants’ business was upon commercial development rather than housing projects, and they may not have fully appreciated the issues to be considered when the respondent determined whether to grant an extension, they were experienced and well-resourced developers. Their failure to communicate with the respondent and to obtain independent professional advice which was readily available to them about the extension of a hard-fought and valued project, was telling.
The ultimate conclusion by the Commissioner was that the appellants had failed to demonstrate the required commitment to the project as was expected in proceedings of this nature. For that reason and because of the change to the Development Plan, he dismissed the appeal.
The appellants’ submissions
The appellants acknowledge that because the Commissioner was exercising a discretion, and hearing the appeal de novo, in order to succeed in the appeal it is necessary to establish error of the type identified by the High Court in House v The King.[7]
[7] (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
The appellants submit that the Commissioner placed substantial weight on what he characterised as the delay by the appellants in applying for an extension. That involved a fundamental misunderstanding as to what had been delayed. The only relevant delay was that relating to the implementation of the proposed development. The timing of the application by the appellants for an extension of time was irrelevant. By finding that any application for an extension of time should have been made earlier, so that there would have been sufficient time for the appellants to gain building rules consent and thus an automatic 12 months extension, the Commissioner erred in law by acting on a wrong principle.
If, contrary to the appellants’ submission, the timing of the application for an extension was relevant, it was to their credit that they had sought an extension prior to the lapse of the 12 month operative period. Furthermore, they did so after having carefully considered market conditions over the preceding 12 months and were able to explain why they required further time. In adopting that approach, as the Commissioner appeared to recognise, the position was little different to that of a person who sought and obtained a building rules consent and development approval on the last day that the DPC was operative.
The appellants also submit that the Commissioner wrongly imputed an extraordinarily high level of technical proficiency and foresight to a reasonable person in the position of the appellants. The evidence before the ERD Court was that the first appellant, Mr Paul, had applied for and been granted numerous requests for an extension without question. It appears that the Commissioner accepted that Mr Paul was truthful but concluded that he had demonstrated an unreasonable position.
Contrary to that finding, the appellants submit that their position was objectively reasonable. They point out that after they had obtained the DPC they monitored market conditions which were in a state of flux due to the Adelaide Hills and Kangaroo Island bushfires and the spread of COVID-19 in the early part of 2020. During that period, it was uneconomic to implement the DPC.

The appellants were also unaware that the Development Plan had changed. Furthermore, as already noted, their past experience was that extensions were routinely granted and they had never previously been refused an extension.
The approach adopted by the Commissioner would require that an applicant for an extension must either undertake an evaluation of the likelihood of the extension being granted or, alternatively, always apply no less than four months before the expiry of the approval so as to leave time to obtain building rules consent and thereby automatically extend the planning consent. The appellants submit that this is not a fair and reasonable yardstick to apply in the assessment of what is “reasonable” nor is it correct at law.
The appellants also submit that the weight placed by the Commissioner on the DPC being “hard fought” could only have been relevant if the appellants had been aware that the Development Plan had changed. It was only in those circumstances that the appellants could reasonably have foreseen that an extension might not be viewed favourably. If all other circumstances had remained unchanged, the appellants could reasonably have expected that a fresh application for the same development would have had the same outcome. Thus, an extension which avoided this administrative “hassle” would also have been approved.
The appellants accept that they require leave to pursue grounds 7 and 12 as they are concerned with a question of fact. They submit that leave should be granted because that would not be contrary to the usual and longstanding practice of this Court not to interfere with matters of planning judgment.[8]
[8] Shahin Enterprises Pty Ltd v Development Assessment Commission [2019] SASCFC 44 at [21]-[22] (Blue J with Vanstone and Kelly JJ agreeing).
The appellants note that the Commissioner accepted that their evidence that about $66,000 in costs would be wasted if the extension was not granted established clear prejudice to them. Notwithstanding that finding, the Commissioner either misunderstood, or rejected without providing reasons, the evidence of the appellants as to the profitability of the proposed development. The Commissioner commented: “what is unknown is the potential losses incurred from proceeding with the project, a risk the appellants now appear willing to bear”.
The appellants say that the evidence was actually that any reasonable development option falling short of the lapsed DPC would result in more severe losses. Their evidence on this point was not challenged. Nevertheless, the finding by the Commissioner that the “appellants had determined that the project was … likely not to be viable for the foreseeable future” was contrary to that evidence. The evidence of Mr Paul was that although the development might not provide the profits originally envisaged, it would “nonetheless … provide a return rather than losses…”
The appellants submit that had the Commissioner correctly understood and taken into account that evidence, and also taken into account the finding that it was now “unlikely that the lapsed DPC, or indeed a modified proposal for four dwellings in any configuration, would be approved”, he should have found that the appellants would suffer substantial prejudice if they were not granted an extension.
The appellants submit that an outcome error occurred when the Commissioner refused to grant the short extension of 12 months sought by the appellants in circumstances where there was little prejudice to the public interest in proper planning, and there was substantial prejudice to the appellants and the appellants had acted reasonably. In support of these contentions, the appellants note that the Commissioner accepted that the prejudice to proper planning and to the community was “not of great order” and “not severe”.
The appellants submit that the conclusion by the Commissioner that “the appellants have failed to demonstrate the requisite commitment to the project as is expected in these proceedings” indicates a failure to engage in the required weighing exercise. The Commissioner erred in law in treating “the requisite commitment” as a pass or fail test.
The appellants further submit that the Commissioner erred in finding “[f]or these reasons, and also the change to the applicable Development Plan provisions … the appeal is dismissed” (emphasis added). The highlighted passage is inconsistent with the earlier finding by the Commissioner that prejudice to the respondent and the community was not of a great order. Properly understood, the latter conclusion weighed in favour of granting the extension and was not a reason for refusal.
The appellants’ submissions in response to the notice of alternative contention
The appellants submit that ground 1(a) in the notice of alternative contention does not identify any House v The King error but simply seeks that this Court exercise the discretion differently to the Commissioner. As such, permission to appeal should be refused.
The appellants also submit that permission to appeal should also be refused in respect of ground 1(c) in the notice of alternative contention. This ground simply seeks to challenge the exercise of a planning discretion.
In relation to ground 2 of the notice of alternative contention, the appellants submit that the respondent is effectively contending that when deciding an application for an extension of the operative period the ERD Court should reconsider the original decision by the planning authority to grant DPC. There is no authority supporting that contention and the respondents have failed to explain how the suggested approach could be adopted in the case of a category 2 or category 3 development where it is necessary to consider the views for objectors.
The appellants further submit that the contention advanced in alternative contention 2 is a logical fallacy. When deciding whether an operative period should be extended, rather than require the applicant to lodge a fresh application for the same development, the existing consent is to be taken as the starting point. If the respondent’s submission was to be accepted, there would be no difference between the grant of an application for an extension and the making of a fresh application, although in the latter case it would be necessary to make a fresh development application and pay the associated fees. This would result in an absurd position if, for example, a development had been partly constructed and the relevant consents and approvals had lapsed. For these reasons, the appellants submit that the Commissioner correctly rejected this contention.
The appellants also submit that they did not provide incorrect or misleading information to the respondent in support of their application.
The respondent’s submissions
The respondent correctly submits that the exercise of a discretion by a Commissioner of the ERD Court will only be set aside on appeal if an appellable error is identified. It is not sufficient that this Court may have made a different decision if it had heard the matter at first instance.
The exercise of the statutory discretion to grant an extension of time required the relevant considerations to be identified and assessed in accordance with the purpose of the statutory scheme under the Development Act. That Act provides for the amendment of development plans and provides a mechanism for that to occur. The purpose of the 12 month period allowed under reg 48 of the Development Regulations is to avoid the undesirable situation where a particular development is considered appropriate and granted approval, but due to a subsequent change in the Development Plan, a development is no longer appropriate. A period of 12 months represents a legislative judgment as to the appropriate time limit in light of its purposes. A developer is permitted 12 months to obtain building rules consent and development approval. That is followed by a further 12 months during which the development must be commenced with completion being required within three years of the grant of development approval.
Bleby J identified in Hall v City of Burnside three considerations that are relevant to the extension of time of the operative time of an approval under the Development Act.[9] Those considerations are:
·has there been a change in surrounding circumstances or planning policy?
·if so, has the developer diligently pursed the development?
·in any event, are there any circumstances which have frustrated the developer’s attempts to pursue the development?
[9] (2005) 92 SASR 579.
The respondent submits that a developer is entitled to make full use of the opportunities offered by reg 48 by obtaining building rules consent and development approval within 12 months, and then waiting a further 12 months before making “substantial commencement” and then possibly controlling the rate of progress until the project is completed in three years. The issue is not whether the developer has acted reasonably in choosing not to pursue the development. A developer who has merely chosen not to pursue the development during the permitted 12 month period cannot expect a favourable exercise of the discretion.
Having made that submission, the respondent does not suggest that prejudice to the developer is entirely irrelevant. However, the respondent contends that prejudice is unlikely to assume much significance in an ordinary case. The loss of an authorisation due to the passage of time will almost always have some detrimental effect on a developer. A decision to extend time simply because the time limit will “prejudice” the developer would undermine the time limit and its underlying rationale.
The respondent submits that the contention in ground 2 that the Commissioner erred in law by holding that the application for an extension was attended by a delay is not correct. The Commissioner correctly approached the matter on the basis that the appellant had delayed seeking an extension.
The respondent suggests that the appellants appear to contend that concept of delay is irrelevant to the exercise of the discretion. The respondent suggests that such a submission is not correct. A delay in seeking an extension is relevant to the diligence test identified by Bleby J in Hall v City of Burnside. The Commissioner correctly considered the delay by the appellants to be an aspect of the diligence test.
The respondent contends that permission to appeal on the matter of fact referred to in ground 3 should be refused. The relevant issue is not whether the appellants applied for an extension before or after the approval lapsed, but rather whether their delay showed a lack of diligence in pursuing the approved development. In the respondent’s submission, the fact that the appellants waited until virtually the last moment before applying for an extension counts against them despite the fact that they did apply before the approval lapsed.
The respondent also submits that the appellants’ submission that the appellants were in a position very little different to a person who obtained building rules consent and development approval on the last day is not correct. The correct position is that if building rules consent and development approval had been obtained on 19 March 2020, it would have been necessary for the development to have been substantially commenced by 19 March 2021. If an extension had been granted for 12 months, the operative date for obtaining building rules consent and development approval would be extended to 19 March 2021, and substantial commencement would only be required by 19 March 2022.
The respondent submits that the appellants were incorrect in the submission that the Commissioner wrongly imputed an extraordinarily high level of technical proficiency and foresight to what might be expected of a reasonable person in the position of the appellants. Furthermore, they contend that the Commissioner did not impute to such a notional person any particular level of technical proficiency or foresight, let alone extraordinarily high proficiency and foresight. The Commissioner simply assessed the reasonableness of the efforts made by the appellants to pursue the development as an element of the diligence test. That did not involve any legal error. It was necessary when the Commissioner applied the diligence test to take account of the reasonableness of the appellants’ conduct. However, the test to be applied is not the reasonableness of the appellants’ conduct per se, but rather whether they pursued the approved development with reasonable diligence. In that context, the appellants merely submit that it was reasonable for them to do nothing. The circumstances establish that the appellants failed the diligence test.
The respondent points out that the appellants have complained in Ground 7 about an alleged failure by the Commissioner to find that they would suffer substantial prejudice if the extension was to be refused. However, the appellants have observed in their written submissions that the Commissioner accepted that there was “clear prejudice”.
The respondent submits that there is no appellable error in relation to the question of prejudice. As the appellants themselves have noted, the Commissioner proceeded on the basis that the loss of the benefit of the expenditure of $66,000 would be prejudicial. The apparent suggestion by the appellants that a finding of substantial prejudice must inevitably result in a favourable exercise of the discretion to grant an extension is incorrect and must be rejected by the Court.
The respondent contends that the Commissioner properly analysed and weighed all matters put to the ERD Court by the appellants. Contrary to the appellants’ suggestion, the changes in the Development Plan were not a factor in their favour but militated against the grant of an extension. While the Commissioner considered that the prejudice to the community that would result from the implementation of a project contrary to the revised Development Plan was not of great significance, this finding merely ameliorated the weight that might otherwise be given to this negative factor.
In the respondent’s submission, the Commissioner found that the appellants had not pursued the development with diligence, and for that reason, diligence could not outweigh other considerations.
The respondent’s submission in support of the notice of alternative contention
The respondent submits that the approach adopted by the Commissioner tended to downplay the significance of the changes to the Development Plan. The Commissioner appears to have reasoned that when such a change occurs then there will be applications “in the pipeline” that the community must accept even though the changes operate prospectively. If that consideration was to be given any significant weight, it would need to be supported by evidence demonstrating that there were applications “in the pipeline” for land near to the proposed development. No such evidence was adduced.
The respondent also observed that the “timeframes the appellants are prepared to work to” concerned only the obtaining of building rules consent. The appellants were seeking a 12 month extension to the DPC and not offering to commence construction earlier than 12 months after such an extension expired. Furthermore, the respondent contends that the appellants did not give an unequivocal commitment to commence construction at all.
If it is necessary for the Court to re-exercise the discretion, substantial weight should be given to the prejudice caused to the public from the fact that the proposed development is no longer supported by the current planning regime.
In relation to the second alternative contention, the respondent submits that the processing and assessment of the development application was defective because the appellants had chosen not to inform it of the proposed tenure arrangements. If the appellants had disclosed that their true intention was that buildings D1 and D2 were to be on separate Torrens Titles, the application would have been processed as one to build semi-detached dwellings. In those circumstances, the respondent would not have approved the application.
The respondent submits that there is a public interest in ensuring the integrity of the planning system. Integrity is undermined if an approval is given on the basis of incorrect information, particularly where an applicant has chosen to withhold relevant information for tactical reasons. It would also be contrary to the public interest and the operation of the statutory scheme for extended effect to be given to an approval that was tainted by a procedural error. For that reason, whether or not the original approval was tainted by procedural error is a relevant consideration when determining an application for an extension of time. The Commissioner erred by rejecting these considerations as irrelevant.
Consideration
The Parliament has provided in s 40(2) of the Development Act for the setting, by regulation, of a time limit upon the operative period of an approval. That time limit, at the relevant time, was fixed by reg 48 at 12 months. The time limit indicates the legislative assessment as to what is an appropriate period for a developer to take the necessary steps to obtain building rules consent and final development approval. In that way, the time limit gives effect to the object in s 3 of the Development Act of providing for “proper, orderly and efficient planning and development”.
Section 40(3) of the Development Act confers upon the relevant authority, and upon a Commissioner deciding a de novo appeal, a discretion to decide whether to allow an extension. An applicant does not have a presumptive right to be granted an extension but must satisfy the decision maker that proper grounds exist for the exercise of the discretion in their favour.[10]
[10] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 (Toohey and Gummow JJ).
Before considering the grounds advanced by the appellants it is appropriate to make some general observations.
Permission to appeal on questions of fact
Certain of the grounds of appeal advanced by the appellants concern only findings of fact. Those ground may only proceed with permission of this Court.[11] The Full Court held in Shahin v Development Assessment Commission that the permission requirement:[12]
… reflects the well-established principle that this Court on appeal recognises the specialist nature of the jurisdiction exercised by the Environment Court and will accord appropriate respect to its decisions insofar as they involve the exercise of a planning judgement.
When considering an appeal from the ERD Court under s 30(2) of the ERD Court Act, Bleby J observed in Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside that:[13]
This Court has properly set its face against prescribing criteria against which an application for leave to appeal from the Court should be determined. The Act does not specify any criteria.
[11] Environment, Resources and Development Court Act s 30(2).
[12] [2019] SASCFC 44 at [21] (Blue J with Vanstone and Kelly JJ agreeing).
[13] [2002] SASC 308 at [19]-[20].
After referring to the discussion by Olsson J in Marion City Corporation v Kassere Pty Ltd[14] where his Honour had declined to set any criteria for the grant of leave, Bleby J concluded in Harrow Trust that:
The granting or refusal of leave will depend on the application of a range of discretionary considerations. They will include, but will not necessarily be limited to, whether there is an arguable case, whether a question of principle may be involved, the significance of the development itself, its importance to the parties and its impact on the locality. Consideration will sometimes include the way the parties have treated the particular issue in the court below and before the planning authority.
[14] (1995) 86 LGERA 41 at 42-43.

In Saturno Group of Companies v Moustos and City of Happy Valley Corporation, Matheson J (with Prior and Mullighan JJ agreeing) held that leave to appeal should be granted as the decision in question could be categorised as an “identifiable and egregious” error of fact.[15]
[15] (1996) 92 LGERA 376 at 385.
I will approach the question of leave to appeal on questions of fact on the basis identified by Bleby J in Harrow Trust. I must also grant leave if I identify an error of the type identified in Saturno.
Principles to be applied in determining the appeal
As I noted at [7], this is an appeal by way of re-hearing. Accordingly, I must conduct an independent review of the evidence that was before the Commissioner and his reasons in order to decide whether a proper determination was made.[16] In this context, it is important to note the observation of the Full Court in Shahin v Development Assessment Commission that even if permission to appeal is granted on a question of fact, the appeal is not a merits review but is confined to consideration of specific alleged errors of law or fact.[17]
[16] Reschke v Trevor Reschke Nominees Pty Ltd [2018] SASC 120 at [25] (Nicholson J).
[17] [2019] SASCFC 44 at [22] (Blue J with Vanstone and Kelly JJ agreeing).
The observation of the Full Court is highly relevant in this matter where several of the grounds of appeal are, in substance if not in form, based on a contention that, when exercising his discretion, the Commissioner either attached too much or too little weight to a particular consideration. Of itself, a complaint that a decision maker attached too much or too little weight to a relevant discretionary consideration is not a ground for impugning a decision.[18] The position will be different where a statute directs the weight to be attached to a particular matter.[19] The latter issue does not arise in this appeal.
[18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 (Mason J); R v Lutze (2014) 121 SASR 144 at [40] (Vanstone and Parker JJ).
[19] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
The parties agree that the Commissioner exercised a statutory discretion under s 40(3). This discretion of a quasi-judicial nature. The appeal against the exercise by the Commissioner of his discretion must be determined in accordance with the principles stated by the High Court in House v The King.[20] Thus, it is irrelevant that this Court might have come to a different decision if it had been in the position of the Commissioner. It is necessary for the appellant to establish that in exercising the discretion, the Commissioner made a process error or, alternatively, that an outcome error has occurred.
[20] (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
A process error will have occurred if the Commissioner has acted upon a wrong principle, has taken into account irrelevant matters, has mistaken the facts or has failed to take into account a relevant consideration. An outcome error will be established if a process error is not identified but, nevertheless, this Court is satisfied that the result is so unreasonable or plainly unjust so that it may be inferred that there was a failure to exercise the discretion properly.
The appellants contend in several of the grounds of appeal that there has been an outcome error in the House v The King sense, i.e. the decision is unreasonable or plainly unjust so that the Court may infer that in some way there has been a failure properly to exercise the discretion.[21]
[21] (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
Discretion to extend the operative period of an approval
As noted in the respondent’s submissions, Bleby J (with Doyle CJ and Perry J agreeing) identified in Hall v City of Burnside several considerations that are relevant to the exercise of the discretion to extend the operative period of an approval under the Development Act.[22] Bleby J stated:[23]
The granting or withholding of the extension is discretionary. If there has been a material change in the planning legislation or in the relevant Development Plan such that consent to the development could not then be given, or if there has been some other material change of circumstance affecting the granting of consent, those may be relevant factors in the exercise of that discretion, to be weighed carefully against the diligence with which the applicant has pursued the development and against other circumstances which may have frustrated that activity.
[22] (2005) 92 SASR 579.
[23] Ibid at [94].
It is important to recognise that the observations made by Bleby J do not purport to be an exhaustive code.
The importance of the temporal limit placed upon an authorisation is made clear by the fact that s 53(2) and s 53(3) of the Development Act provide that an authorised development may be undertaken and completed in accordance with that authorisation notwithstanding a subsequent amendment to the Development Plan or the Building Rules. Thus, once authorisation has been granted, a development may proceed in accordance with that authorisation even though it is inconsistent with the revised planning and building regime. Moreover, in addition to the 12 months permitted for the obtaining of building rules consent and hence development approval, a further 12 months is allowed for the substantial commencement of the project.[24] The development must also be completed within three years of the grant of development approval.[25] However, those periods will be extended while any appeal is determined.[26] The substantial period during which an authorisation may remain in force serves to reinforce the significance of changes to the applicable planning regime when deciding an application for an extension of the operative period.
[24] Development Regulations reg 48.
[25] Ibid.
[26] Ibid reg 48(4).
It is also significant that a development plan may be amended by the Minister or by a council at any time after certain consultative processes have been followed.[27] A council must prepare a strategic directions report at least every five years or within 12 months of the Minister amending the Planning Strategy (which itself must occur at least every five years).[28] Such a report must include a review of the council’s development plan. Thus, a change to a development plan is not an uncommon event.
[27] Development Act s 24-29.
[28] Development Act s 30.
Of course, if there has been no relevant change to the planning regime in the period of 12 months after the grant of development plan consent, the question of prejudice to the public interest will not arise.
Diligence in pursuing the development
The appellant has submitted that the exercise of the discretion simply requires that there be a balancing of the prejudice to an applicant caused by the refusal of an extension against the prejudice to the public interest in the effective operation of the Development Plan. That contention does not recognise the significance attached by Bleby J in Hall to the diligence with which the applicant has pursued the development. It also does not recognise that the limit placed upon the operative period expresses a legislative policy choice and the appellants are seeking that their case be treated as an exception to that principle.
The fact that an applicant has simply “sat on their hands” without good reason weighs heavily against the grant of an extension in a case where there has been significant change to the planning regime that would preclude or reduce the likelihood of a proposal being approved under the new planning regime.
As I have already observed, the purpose of the time limit on the operative period is to assist in meeting the statutory object of achieving proper, orderly and efficient planning and development. The significance of that purpose is reinforced by the provisions in the Development Act that require councils to review periodically their development plans.
Nevertheless, it must also be recognised that the making of an application for building rules consent and development approval may have been delayed for reasons over which the developer has little or no effective control. For that reason, Bleby J referred in Hall to the need to take account of circumstances which may have frustrated the pursuing of the development.
Market conditions
In the latter context, the appellants assert that it was reasonable for them to delay taking any action to advance the development until they were satisfied that market conditions had improved to the extent necessary to render the project profitable, or at least, to minimise their losses.
In this case, as in many others, the development proposal is being pursued by persons in the business of undertaking developments with a view to profit rather than for their own occupancy or use. I consider that when determining an application for an extension of the operative period the decision maker is entitled to take into account the concern of the proponent that the development may not be profitable because of a downturn in market conditions. However, the weight that may be given by the decision maker to that consideration will depend upon all the circumstances. Thus, for example, if there were to be a significant economic recession, that factor may attract considerable weight. That may also be the case with a localised but significant economic downturn, e.g. the closure of a significant employer in a regional centre. In such circumstances, it may potentially be the case that a developer has not displayed a lack of diligence if they have delayed the advancement of a project until the economic outlook becomes clearer. However, quite apart from those general or localised economic considerations, the circumstances of the individual case remain of prime importance.
The Commissioner described the concern of Mr Paul with market conditions and the effect of COVID-19 on market sentiment and pricing as being “understandable”. For the reasons given in the preceding paragraph, those matters were relevant considerations which the Commissioner was entitled to, and clearly did, take into account when exercising his discretion. What weight he accorded to those issues was essentially a matter for his judgment unless a clear outcome error is demonstrated. However, for the reasons indicated below at [113] to [114], the COVID-19 pandemic (and bushfires) issues had not emerged by mid-November 2019, being the time by when the Commissioner found that the appellants should have commenced action to obtain building rules consent and development approval. Thus, to the extent that the concern of Mr Paul with market conditions was based upon the effect of COVID-19 pandemic, the finding by the Commissioner that his concern was “understandable” was actually generous to the appellants. However, it must be recognised that the evidence also referred to a general concern by Mr Paul with “very poor” market conditions in 2019.
Mr Paul stated in his oral evidence that if market conditions at the time the dwellings were completed would not make their sale profitable, he and his wife would retain the properties and rent them out. He indicated that this would produce a financial return due to the tax deductions available for depreciation of new buildings. That evidence tended to lessen the weight that might be attached to the contention that the appellants had acted reasonably in not taking any action whatsoever to advance the project while they waited for a recovery in the market. The Commissioner did not refer to this evidence other than to observe in a footnote that the potential large loss forecast by Mr Paul would be reduced by the tax benefits associated with rental of the property. The use of a footnote might be taken to indicate that the Commissioner did not attach much weight to the reduction of losses by rental returns. If so, his approach was, at least to some degree, generous to the appellants.
Timing of application
The Commissioner found that the appellants should have taken steps to have the documentation prepared for building rules consent by at least mid-November 2019, i.e. about four months before the operative period expired. That finding was based upon the evidence of Mr Paul that it would take three to four months for his engineer, architect and builder to complete the work required to support the application for building rules consent. I do not consider that the Commissioner was foreshortening the 12 month period set by reg 48. His observation was simply an element in the assessment of the diligence with which the appellants had attended to the matter. The failure by the appellants to take any action at all prior to the expiry of the operative period weighed against them in the assessment of diligence.
The Commissioner accepted the evidence of Mr Paul that he and his wife had elected not to proceed with the development during 2019 as their assessment of the property market was that it was not as favourable as it had been in 2018 when they had expected to be undertaking the development. Against that, the Commissioner noted that much of the delay in the grant of the DPC was due to inaction on the part of the appellants. He also observed that Mr Paul had conceded that during 2019 he had “… a lot of projects on at the same time and I’ve got to be careful with what I start and what I don’t start” and had waited until the last moment “… so I could keep my options open as to what I could do”. In light of this evidence, the Commissioner concluded that the appellants were “spectating” market conditions until they could work out what to do with the DPC and were ambivalent about the project.
I do not consider that the Commissioner erred in reaching these conclusions. Those factual findings were consistent with the evidence and plainly open to him. Moreover, this Court should not interfere with the Commissioner’s factual findings made after he had heard oral evidence nor with the inferences that he drew from that evidence unless those conclusions are “glaringly improbable” or “contrary to compelling inferences”.[29]
[29] Fox v Percy (2003) 214 CLR 118 at 125-128 (Gleeson CJ, Gummow and Kirby JJ).
The appellants have also referred to the economic downturn arising from the bushfires and the COVID-19 pandemic as influencing their decision not to act upon the DPC. However, while these matters may have been important to the appellants by March 2020 when they sought an extension, as previously noted, it is not apparent that such matters could have been a significant cause of their decision not to commence action by about November 2019 to have their application for building rules consent prepared. The major South Australian bushfires did not commence until shortly before Christmas 2019 with the Kangaroo Island outbreak getting out of control in very early January 2020.[30] Although the outbreak of COVID-19 apparently first occurred in China in early December 2019, it was not recognised as a pandemic until the early months of 2020.[31] A State of Emergency in response to COVID-19 was declared in South Australia on 22 March 2020.[32]
[30] There had also been major fires in eastern Australia in the final months of 2019.
[31] I consider that the matters to which I have referred concerning COVID-19 and the bushfires are of such public notoriety that I am permitted to take judicial notice.
[32] Declaration by the State Co-ordinator under s 23(1) of the Emergency Management Act 2004 (SA).
The matters referred to in the preceding paragraph, suggest that the Commissioner was somewhat generous towards the appellants by accepting that their concerns about the effect of COVID-19 (and apparently also the bushfires) on the market were “understandable”. However, I have previously noted that Mr Paul also referred to his general concern with “very poor” market conditions in 2019.
Assumption that extension was automatic
Mr Paul worked on the assumption that the respondent would automatically extend the operative period of the DPC. He had experience with several previous projects where the respondent had granted extensions, sometimes on more than one occasion. Mr Paul also stated that he had not been aware of the changes to the Development Plan.
As I have previously observed, the 12 month operative period has been enacted by regulation and implements a public policy position that projects must not be allowed to linger for an indeterminate period, at least without good reason. Regardless of what had happened on past occasions (and there was no evidence to explain the circumstances that had previously led the respondent to grant extensions) the appellants were not entitled to treat the extension of the 12 month period as a mere formality or rubberstamp exercise. Each application must be decided on its own particular merits in light of the circumstances then prevailing. With respect to the latter point, as I have previously observed, development plans are not infrequently amended.
The Commissioner acknowledged that the appellants may not have fully appreciated the issues involved in the extension of a DPC. Nevertheless, he clearly gave substantial weight to the fact that the appellants were experienced developers with a particular focus on the Marion Council area who had available to them professional advice about planning and development issues. Those were relevant considerations that the Commissioner was entitled to take into account when assessing the diligence of the appellants in pursuing the project. In conducting that assessment, he was also entitled to draw on his knowledge and experience of the operation of the development industry in this State.[33]
[33] Keller v Drainage Tribunal and Montague [1980] VR 449 at 453 (Murray J); Minister for Health v Thomson (1985) 8 FCR 213 at 217 (Fox J), 224 (Beaumont J) (Wilcox J agreeing with Fox and Beaumont JJ).
Amendments to the Development Plan
Due to the changes to the Development Plan, the parties accepted that if it was necessary for the respondent to decide the matter again, it was highly unlikely that approval would again be given to erect four dwellings. Instead, the parties expected that only three dwellings would be permitted. That would greatly reduce the potential financial returns to the appellants from the development.
The Commissioner found that the prejudice to the respondents arising from the changes to the Development Plan was “not of a great order”. In arriving at that conclusion, he took into account the nature of the changes, the asserted willingness of the appellants to take prompt action to obtain building rules consent if an extension was granted and also the timing of the changes. I take the latter comment to be a reference to the introduction of those changes some five months prior to the expiry of the operative period of the DPC.
While the Commissioner did not elaborate on his observation about the willingness of the appellants to take prompt action, I note that he might have granted an extension of less than 12 months under s 40(3).
Prejudice
The Commissioner found at [44] of his reasons that the appellants would “clearly be prejudiced” if their appeal were to be dismissed as the costs they had incurred, amounting to some $66,000, would be thrown away. The Commissioner also observed at [44] that the extent of any potential losses arising from the implementation of the proposal was uncertain. That observation was clearly founded upon the information contained in a series of spreadsheets annexed by Mr Paul to his affidavit (marked as MP3) and his oral evidence on that issue. The spreadsheets set out his calculations as to the likely profit or loss for the project based upon a series of different assumptions as to sale price. Because the correctness of the multiple different assumptions was unknown, it was not possible for the Commissioner to reach a definite conclusion on the likely profit or loss.

While the Commissioner did not refer to the issue of prejudice in his ultimate conclusion at [46], I accept that he did take that issue into account given his express finding two paragraphs earlier that the appellants would “clearly be prejudiced” if their appeal were to be dismissed. In reaching that conclusion I am mindful of the observation by the Full Federal Court that, at least in the case of a lay Commissioner, “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[34]
[34] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ).
Grounds 2 and 3
In light of those general observations on the key issues, I turn to the specific grounds of appeal.
The appellants contend in Ground 2 that the Commissioner erred in law by holding that the application for an extension of the operative period was subject to delay. In the alternative, the appellants contend in Ground 3 that the Commissioner erred in fact in failing to find that any delay was short. The appellants contend that the only relevant delay is that which is concerned with the implementation of a proposed development.
In Hall v City of Burnside Bleby J (with Doyle CJ and Perry J agreeing) rejected a contention that an application for the extension of the operative period of a DPC must be lodged prior to the expiry of the operative period.[35] I do not consider that the Commissioner erred by failing to follow that clear Full Court authority. While the Commissioner considered the timing of the application as discussed at [110] to [114] above, his clear focus was upon the question of diligence. I dismiss Ground 2.
[35] (2005) 92 SASR 579 at [92]-[93], [95] (Bleby J), [3] (Doyle CJ), [5] (Perry J).
I also reject the contention in Ground 3 that the Commissioner erred by failing to find that any delay was “short”. The Commissioner did not make any finding about the length of the delay, although there was such a heading in his reasons. As I have said, the focus of the Commissioner was upon the question of diligence in pursuing the development. He was clearly concerned that the appellants had not taken any action whatsoever to progress the matter. It was in that context that the Commissioner referred to the evidence of Mr Paul that it would have taken about three to four months to complete the various steps necessary prior to the lodging of an application for building rules consent and development approval.
Having regard to the issues identified by Bleby J in Harrow Trust and the approach adopted by the Full Court in Saturno, as there was no factual error, I refuse permission to appeal in respect of Ground 3.
Ground 4
In substance, the appellants complain in Ground 4 that the Commissioner wrongly imputed an extraordinarily high level of technical proficiency and foresight to a reasonable person in the shoes of the appellants. The appellants further contend that the approach adopted by the Commissioner would require that an applicant for an extension either undertake an evaluation of the likelihood of it being granted or seek an extension at least four months prior to the end of the operative period. They contend that this suggested approach involves an error of law and does not apply a fair and reasonable yardstick of reasonableness.
I do not accept that the Commissioner erred in the manner suggested. The Commissioner primarily referred to the appellants as experienced developers with access to any necessary advice in the context of responding to their complaint that the respondent had not informed them of the changes to the Development Plan. He also referred to this issue in assessing the diligence with which they had pursued the project.
As I have indicated at [102] to [105], I accept the correctness of the suggestion by the respondent that the assessment of diligence necessarily requires consideration to be given to the reasonableness of the steps taken by an applicant. That is implicit in the observations made by Bleby J in Hall where his Honour noted that other circumstances may have affected the diligence with which the development has been pursued. It is apparent that Bleby J considered that the assessment of diligence is not to be conducted in the abstract but rather by having regard to all relevant circumstances that may have hindered the advancement of a project. Thus, for example, at least to some extent, the fact that an owner/builder may experience delay due to a lack of experience, expertise or resources but is found to be genuinely pursuing the development as best they can, might potentially be assessed more favourably than a similar delay by a professional developer with access to relevant professional advice and much greater resources who has simply “sat on his hands”.
For the preceding reasons, I reject the contention in Ground 4 that the Commissioner erred in law by imposing a wrong standard of reasonableness or by taking a wrong approach to the question of reasonableness.
Ground 5
The appellants contend in Ground 5 that the Commissioner erred in fact (or on a mixed question of law and fact) in finding that it was not reasonable for them to assume, based on their past experience, that a 12 month extension would be granted as of course and not taking steps to obtain building rules consent within 12 months and not seeking an extension of the operative period until shortly before it was due to expire. I consider the better view to be that Ground 5 raises a mixed question of law and fact and thus permission to appeal is not required.
I have found at [116] that it was not reasonable for the appellants to have assumed that the statutory power would automatically be exercised in their favour. If such an assumption were to be generally accepted, it would negate the legislative decision to impose a time limit. For the same reason, I have found at [110] to [112] that the Commissioner did not err in finding that it was not reasonable for the appellants not to take any action to advance the project within the 12 month period. That was a relevant consideration and the weight given to it was a matter for the Commissioner in the absence of any outcome error. I dismiss Ground 5.
Ground 6
For the reasons discussed at [106] to [109], I reject the contention in Ground 6 that the Commissioner erred in law by not accepting that it was reasonable for the appellants to evaluate market conditions and not to take any further steps to advance the proposed development until they considered that it was viable. The Commissioner took those matters into account when determining the degree of diligence shown by the appellants in pursuing the development. That assessment involved the exercise of a quasi-judicial discretion. I am not persuaded that the approach adopted by the Commissioner gave rise to either a process error or an outcome error. I dismiss Ground 6.
Ground 7
The appellants complain in Ground 7 that the Commissioner erred in fact, or on a mixed question of law and fact, by failing to find that they would suffer substantial prejudice if an extension was not granted. The better view is that Ground 7 is confined to a question of fact.
As I have noted at [121] to [122] contrary to the appellants’ contention, the Commissioner found at [44] that the appellants would “clearly be prejudiced” if their appeal were to be dismissed as costs they had incurred of some $66,000 would be thrown away. There is nothing in the judgment to suggest that the Commissioner regarded this prejudice as being other than substantial. I have also found that the Commissioner did take this prejudice into account in reaching his ultimate decision. I dismiss Ground 7.
Ground 8
The appellants contend in Ground 8 that the exercise of discretion by the Commissioner miscarried or, alternatively, was legally unreasonable or wrong in light of a series of matters set out in the notice of appeal. In effect, the appellants contend that an outcome error occurred.
I agree with the observation made by the respondent that although the appellants have listed a series of findings that were either made by the Commissioner, or in their contention should have been made, they have not made any reference to the extensive findings by the Commissioner concerning their lack of diligence. That was a matter to which the Commissioner was entitled to attach considerable weight, and did in fact do so. It is unnecessary to repeat my analysis of the various matters referred to by the appellants in the particulars to Ground 8. For the reasons previously discussed, I am not persuaded that an outcome error occurred and for that reason I dismiss Ground 8.
Ground 9
In Ground 9 the appellants complain that the Commissioner erred in law by effectively punishing the appellants for what he perceived to be a failure to seek an extension at a sufficiently early time. As I have discussed at [110] to [114], the timing of the application, and more particularly the fact that the appellants had not taken any steps whatsoever to advance the matter prior to the expiry of the 12 month period, was taken into account as a relevant consideration by the Commissioner in the assessment of diligence. This issue was clearly relevant to that assessment and I reject the contention that the Commissioner erred in law in the manner contended by the appellants. I dismiss Ground 9.
Ground 10
The appellants complain in Ground 10 that the Commissioner erred “as a matter of logic” in reasoning that the fact that the consent had been “hard fought” somehow required the appellants to make an early application to extend the operative period. That is said to have given rise to an error of law.
The Commissioner observed at [16] of his reasons that as the grant of the DPC had been “hard fought” the appellants should not have assumed that an extension would automatically be granted. At [45] the Commissioner observed that the failure of the appellants to communicate with the respondent, and also their failure to obtain independent professional advice that was readily available to them, was, in all of the circumstances, telling, given that the DPC had been “hard fought” and related to a valued project.
The appellants also complain that the weight placed by the Commissioner upon the consent being “hard fought” could only be relevant if the appellants were aware of the change to the development plan. They submit that only then could they have reasonably foreseen that an extension might not be viewed favourably by the respondent. If all other circumstances had remained unchanged, the appellants could reasonably have expected that a fresh application for the same development would have been approved as it had been in the first instance.
The reference by the Commissioner at [16] to the obtaining of the DPC being “hard fought” was the basis upon which the Commissioner found that Mr Paul should not have assumed that an extension to the DPC would be automatic. For the reasons expressed by the Commissioner at [16] in their entirety, if they were prudently pursuing the development it was reasonable to expect that they would have obtained professional advice as to the likelihood of gaining an extension instead of simply assuming it would be automatic. The Commissioner also added, to the same effect, that as the focus of the appellants’ development business was within the area of the respondent Council, it could reasonably have been expected that they would have made contact with the respondent’s planning staff to discuss what steps they needed to take once they had decided not to proceed immediately with the development. My understanding of the Commissioner’s reasons is that he concluded that it was not reasonable to make assumptions about what further decision the respondent might make. The reasoning adopted by the Commissioner was not dependent upon the appellant’s being aware of the change to the development plan.
For these reasons, the matters referred to by the Commissioner were relevant considerations in the assessment of diligence. Subject to my earlier observations about outcome errors, the weight attached to those considerations was a matter for the Commissioner. I do not consider that either a process error or an outcome error has occurred. I dismiss Ground 10.
Ground 12
The appellants contend in Ground 12 that the Commissioner erred in fact in finding at [13] that the appellants had determined that the project was not viable throughout the life of the DPC and not likely to be viable for the foreseeable future. A further complaint is that the Commissioner also erred in fact at [44] by speculating that “what is unknown is the potential losses incurred from proceeding with the project”. The third factual error complained of in Ground 12 is that the Commissioner failed to find that a development of three or less dwellings on the subject land was likely to incur a loss, whereas completion of the proposed four dwelling development had a real likelihood of returning a profit or, in any event, minimising the losses incurred by the appellants when compared with other reasonable scenarios.
The finding by the Commissioner that the appellants had determined that the project was not viable throughout the life of the DPC and was unlikely to be viable for the foreseeable future was based upon annexure MP3 to the affidavit of Mr Paul. The annexure MP3 comprises a series of spreadsheets prepared by Mr Paul on 1 June 2020. The spreadsheets compare the likely financial outcome for the development project based on four different scenarios. Those scenarios are first, demolition of the existing structures and sale of the land as a cleared site. Secondly, the erection of two dwellings on the land. Thirdly, the erection of three dwellings and finally, the erection of four dwellings.
Mr Paul provided in his affidavit a detailed description of the methodology that he employed in preparing the spreadsheets. Of course, the financial results predicted by Mr Paul in the spreadsheets are estimates and the various outcomes are fundamentally dependent upon the future state of the housing market in, not only Adelaide generally, but also in the South Plympton area specifically.
Mr Paul has calculated the expected profit or loss based upon what he considers to be the likely sale price, a sale price 10 per cent greater than his estimate and a sale price 10 per cent less than his estimate. Of these 12 different possibilities, only the development and sale of four dwellings at a price 10 per cent greater than Mr Paul’s estimated price, was expected to produce a profit. That profit was estimated by Mr Paul at $113,018. However, if the sale of the dwellings realised only the price estimated by Mr Paul, the appellants would suffer a loss of $110,316. That loss would increase to $333,649 if the four dwellings sold for a price 10 per cent less than that estimated by Mr Paul.
In view of Mr Paul’s evidence, I reject the contention by the appellants that the Commissioner erred in finding that the project was not viable. It was only viable if four units were built and sold for a price 10 per cent greater than Mr Paul’s own estimate. The sale of four units at Mr Paul’s estimated price would result in a loss to the appellants of $110,316.
The risk of loss to the appellants was lowest if they were to demolish the existing structures and sell the land as a cleared site. Under that scenario, their estimated losses would range from $30,192 if the sale price of the land was 10 per cent greater than expected, $109,369 if the estimated sale price was achieved and a loss of $188,546 if the sale price was 10 per cent less than expected.
While the spreadsheets marked MP 3 referred to potential losses, those were merely predictions based on different scenarios. The relevant spreadsheets did identify the potential losses if four dwellings were built and sold at either Mr Paul’s estimated price or a price 10 per cent less. Nevertheless, the actual loss (or profit) would depend on future movements in the market and the timing of sales. Other potential variables, such as interest rates on borrowed funds, the cost of building materials and labour and so forth, would also affect the outcome. For these reasons, I do not consider that the Commissioner erred by observing that the potential losses that might be incurred from proceeding with the project were unknown. In any event, if there was an error made by the Commissioner, it was of little significance to his decision.
The appellants have correctly observed that the Commissioner did not expressly find that a development of three or less dwellings on the subject land was highly likely to return a loss, whereas a four dwelling development might possibly achieve a profit. However, he did recognise that the appellants “would likely suffer a serious loss” if an extension was not granted and noted that there would be costs thrown away of some $66,000. For the reasons which follow, I am not persuaded that the Commissioner erred when he assessed prejudice by not referring specifically to the probable loss if three or less dwellings were to be built.
Should an extension be refused, the appellants might seek a fresh DPC (and incur further costs, estimated by Mr Paul to be no less than $8,500) but it was accepted by the parties that due to the amendments to the Development Plan it was “highly unlikely” that approval would be given to build four dwellings. In those circumstances, and given Mr Paul’s estimation of the potential loss if only three dwellings were to be approved,[36] it seems improbable that the appellants would pursue the development. In that event, only the costs thrown away of some $66,000 would be relevant. That prejudice was expressly taken into account by the Commissioner.
[36] Mr Paul estimated in MP3 that the loss if three dwellings were built would be either $640,013 or $451,013 or $829,013 depending upon whether his estimated price was achieved or a figure 10 per cent more or less than his estimate.
For these reasons, I dismiss Ground 12.
Grounds 13 and 14
The appellants contend in Ground 13 that the Commissioner erred in law by requiring them to “demonstrate the requisite commitment to the project”. Closely related to that contention is the submission in support of Ground 14 that the Commissioner erred in law by according determinative weight to his conclusion that the appellants had displayed a lack of diligence or commitment to the project. The fundamental complaint made in support of Grounds 13 and 14 is that the Commissioner did not conduct a weighing exercise but approached the matter on the basis that the display of “the requisite commitment” constituted a pass or fail test.
The appellants complain that the Commissioner relied upon the change to the Development Plan as a factor weighing against the grant of an extension even though he had earlier found that the prejudice to the respondent and to the community was “not of a great order”. The appellants contend that the latter finding favoured the granting of an extension and did not provide a basis for refusal.
I reject that contention. The fact that there had been a change to the Development Plan weighed against the grant of an extension. While the Commissioner found that the prejudice was “not of a great order”, he correctly took that prejudice into account as an additional consideration weighing against the grant of an extension in conjunction with the notable lack of diligence shown by the appellants. Contrary to the appellants’ suggestion, there was no inconsistency in the approach taken by the Commissioner.
The observations made by the Commissioner to the effect that the appellants had failed to demonstrate a real commitment to the project reflected his conclusion as to the degree of diligence that they had shown. The diligence shown by a person seeking an extension of the operative period is an important consideration in the weighing exercise conducted by a decision maker. In substance, the argument advanced by the appellants in support of Ground 13, and particularly Ground 14, is that this Court should accord different weight to the issue of diligence than did the Commissioner.

While the Commissioner clearly attached very substantial weight to his conclusion that there was a lack of diligence on the part of the appellants, I do not accept that he treated that matter as determinative. He clearly also considered what he described as a likely “serious loss” to the appellants and also the prejudice to the public interest arising from the changes to the Development Plan, albeit that he regarded the latter prejudice as “not severe”.
I therefore reject the contention that the Commissioner erred in law by according decisive weight to his finding that there was a lack of diligence on the part of the appellants. While a different decision maker might very well have reached a different but valid conclusion on the facts as found by the Commissioner, that does not demonstrate an outcome error. His decision was not so unreasonable that no reasonable decision maker could have made such a decision[37] and nor was it a decision that “lacks an evident and intelligible justification”[38] nor “unreasonable or plainly unjust”[39].
[37] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (Lord Greene MR).
[38] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).
[39] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
I dismiss Grounds 13 and 14.
The notice of alternative contention
The respondent submitted that if I reject each of the grounds of appeal advanced by the appellant, it is unnecessary to consider the alternative contentions it has advanced. I accept that proposition and will not consider the notice of alternative contention.
Conclusion
I dismiss the appeal. I will hear the parties as to costs.