Revelop Building and Developments Pty Ltd v State Planning Commission - [2023] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
REVELOP BUILDING AND DEVELOPMENTS PTY LTD v STATE PLANNING COMMISSION
[2023] SASC 176
Judgment of the Honourable Justice Blue
13 December 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
Appeal against an order by the Environment Resources and Development Court joining the respondents as additional respondents to an appeal against a decision by the State Planning Commission.
The Commission’s decision refused planning consent in respect of a proposed development classified by the Planning and Design Code as “restricted development”. Restricted development is governed by section 110 of the Planning, Development and Infrastructure Act 2016 (SA).
A person who makes written representations in relation to restricted development is entitled to notice from the Commission in relation to its decision on the application. A person entitled to notice is entitled, under section 202, to appeal against the decision.
Section 17 of the Environment Resources and Development Court Act 1993 (SA) confers a general power on the Environment, Resources and Development Court to join a person as a party to any proceeding in the Court.
The appellant contends that the Court:
1erred in proceeding on the basis that section 205(2)(c) of the Act did not apply to the joinder applications by the respondents;
2(in the alternative) if section 205(2)(c) of the Act did not apply, erred in holding that the Court could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c);
3(in the alternative) in exercising the discretion under section 17 of the Environment Court Act in circumstances in which section 205(2)(c) of the Act did not apply:
(a)    erred in holding that the respondents were not required to establish a “special interest”;
(b)    erred in holding that the respondents were not required to establish that they were adversely affected as required by the High Court in Argos Pty Ltd v Corbell;
(c)     erred in distinguishing the decisions in Remibisi Pty Ltd v City of Salisbury and Leasecorp Aldinga Pty Ltd v City of Onkaparinga;
(d)    erred in failing to determine, as required by the Full Court decision in Pitt v Environment, Resources and Development Court, whether the respondents’ interests would be prejudicially affected by an order that could be made on the appeal;
(e)     erred in making a joinder order in the absence of evidence that the respondents’ interests would be adversely affected by the proposed development;
(f)     erred in concluding that the interests of the respondents as owners of commercial land more than 3.5 kilometres from the proposed development were sufficient to justify joinder;

4       erred in acting on:
(a)    submissions, unsupported by evidence, as to the claimed interest of the respondents in the proceeding;
(b)    the basis that it was demonstrated by the evidence that the case in support of the Commission’s decision would not adequately be dealt with in the absence of the respondents or that their joinder would materially contribute to the proper resolution of the proceeding.

Held (dismissing the appeal):
1 Section 205(2)(c) of the Act did not apply to the joinder applications by the respondents:
(a) The respondents had a right to notice of the decision (at [53]).
(b) “Prescribed circumstances” in section 205(2)(c) refer to or encompass circumstances prescribed by the Act (at [64]).
2The Court did not hold that it could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c) (at [76]).
3The considerations under section 17 of the Environment Court Act are quite different in a case where the joinder applicant has a right of appeal against a grant of planning consent. In such a case a joinder applicant is not required to establish as a threshold requirement a special interest or adverse or prejudicial effect beyond establishing that they would have had a right of appeal against a grant of planning consent or alternatively that circumstance itself comprises a sufficient special interest or adverse or prejudicial effect (at [114]).
4The Environment Court is not bound by the rules of evidence and the Court did not err in acting on material as to the claimed interest of the respondents in the proceeding or as to the assistance that would be given by the respondents if joined as parties to the proceeding (at [119],[124],[125]).

5 Appeal dismissed (at [128]).
City of Adelaide Development Control Act 1976 (SA); Development Act 1993 (SA) ss 37, 38, 88; Environment Resources and Development Court Act 1993 (SA) s 17; Planning, Development and Infrastructure Act 2016 (SA) ss 65, 66, 101, 102, 110, 202, 205; Planning Development and Infrastructure (General) Regulations 2017 (SA), referred to.
Argos Pty Ltd v Corbell & Ors (2014) 254 CLR 394; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; House v The King (1936) 55 CLR 499; Leasecorp Aldinga Pty Ltd v City of Onkaparinga [2008] SAERDC 69; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; 21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SASC 106, considered.

REVELOP BUILDING AND DEVELOPMENTS PTY LTD v STATE PLANNING COMMISSION
[2023] SASC 176
Civil

BLUE J: Revelop Building and Developments Pty Ltd (Revelop) appeals against an order by a Commissioner of the Environment Resources and Development Court joining Wakefield Properties Pty Ltd (Wakefield) and Wakefield Properties No 6 Pty Ltd (Wakefield No 6) as additional respondents to an appeal against a decision by the State Planning Commission (the Commission). The decision refused planning consent in respect of a proposed development to redevelop and change the use of 3,650 square metres of the Gawler Park Homemaker Centre from a bulky goods outlet to a supermarket, bottle shop and retail shop.
The proposed development falls within the Employment Zone contained in the Planning and Design Code (the Code) made under the Planning, Development and Infrastructure Act 2016 (SA) (the Act). The provisions of the Code relating to the Employment Zone provide that a shop (other than a bulky goods outlet or restaurant) greater than 1,000 square metres is “restricted development”.
Restricted development is governed by section 110 of the Act. Public notice of an application for planning consent in respect of restricted development must be given. Any interested person may make written representations to the Commission in relation to the granting or refusal of planning consent. A person who makes written representations is entitled to make oral submissions in support of the representations. A person who makes written representations is entitled to notice from the Commission in relation to its decision on the application. A person entitled to notice of the decision is entitled, under section 202, to appeal against the decision.
Section 17 of the Environment Resources and Development Court Act 1993 (SA) (the Environment Court Act) confers a general power on the Environment, Resources and Development Court (the Environment Court) to join a person as a party to any proceeding in the Court. The Commissioner made the joinder orders in the exercise of that power.
On appeal, Revelop accepts that the joinder decision was made in the exercise of a discretion and it is required to demonstrate error in the sense identified by the High Court in House v The King.[1]
[1] (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Revelop contends that the Commissioner:
1erred in proceeding on the basis that section 205(2)(c) of the Act did not apply to the joinder applications by Wakefield and Wakefield No 6 (collectively the Wakefield Companies);[2]
[2] As observed below, it was not argued before the Commissioner that section 205(2)(c) applied. Further this is not a ground of appeal. However, the Wakefield Companies take no objection to it being argued on the appeal.
2(in the alternative) if section 205(2)(c) of the Act did not apply, erred in holding that the Court could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c);[3]
[3]     This is not an explicit ground of appeal. However, the Wakefield Companies take no objection to it being argued on the appeal.
3(in the alternative) in exercising the discretion under section 17 of the Environment Court Act in circumstances in which section 205(2)(c) of the Act did not apply:
(a)erred in holding that the Wakefield Companies were not required to establish a “special interest”;[4]
[4]     This is not an explicit ground of appeal. However, the Wakefield Companies take no objection to it being relied on at the hearing of the appeal.
(b)erred in holding that the Wakefield Companies were not required to establish that they were adversely affected as required by the High Court in Argos Pty Ltd v Corbell[5] in a different context and in distinguishing that case;[6]
(c)erred in distinguishing the decisions in Remibisi Pty Ltd v City of Salisbury[7] and Leasecorp Aldinga Pty Ltd v City of Onkaparinga[8] being earlier decisions by Environment Court Commissioners;[9]
(d)erred in failing to determine, as required by the Full Court decision in Pitt v Environment, Resources and Development Court,[10] whether the Wakefield Companies’ interests would be prejudicially affected by an order that could be made on the appeal;[11]
(e)erred in making a joinder order in the absence of evidence that the Wakefield Companies’ interests would be adversely affected by the proposed development;[12]
(f)erred in concluding that the interests of the Wakefield Companies as owners of commercial land more than 3.5 kilometres from the proposed development were sufficient to justify joinder;[13]
4erred in acting on:
(a)submissions, unsupported by evidence, as to the claimed interests of the Wakefield Companies in the proceeding;[14]
(b)the basis that it was demonstrated by the evidence that the case in support of the Commission’s decision would not      adequately be dealt with in the absence of the Wakefield Companies or that their joinder would materially contribute to the proper resolution of the proceeding.[15]
[5] [2014] HCA 50, (2014) 254 CLR 394.
[6]     Ground 5.
[7] [2008] SAERDC 28.
[8] [2008] SAERDC 69.
[9]     Ground 4.
[10] (1995) 66 SASR 274.
[11] Ground 6.
[12] Ground 3.
[13] Ground 1.
[14] Ground 2.
[15] Ground 7.
The Wakefield Companies contend that section 205(2)(c) did not apply to their joinder applications; considerations under section 17 of the Environment Court Act are quite different in a case (such as the present) in which the joinder applicant has a right of appeal against a grant of planning consent to those in a case in which it does not (such as in the decisions relied upon by Revelop); and the Commissioner was not bound by the rules of evidence and in any event there was evidentiary material before him to justify the findings made by him.
Background
The existing Gawler Park Homemaker Centre comprises 13,177 square metres. It is located at the intersection of Main North Road and Para and Potts Roads immediately south of Gawler.
On 28 February 2022 Revelop lodged its application for development consent. It lodged in support of it an Economic Impact Assessment that had been prepared by Macroplan in May 2020.
On 20 June 2022 the Wakefield Companies each made written representations to the Commission opposing the proposed development.
Wakefield is the owner of Gawler Central Shopping Centre in central Gawler comprising approximately 6,200 square metres anchored by a Coles supermarket. It is situated in the Township Main Street Zone.
Wakefield No 6 is the owner of Springwood Place Shopping Centre in Gawler East comprising approximately 3,400 square metres anchored by a Drakes supermarket. It is situated in the Emerging Activity Centre Sub Zone.
The Wakefield Companies made representations largely in similar terms. They contended that the Code provides for shopping centres to be located in Activity or Main Street Zones within a hierarchy (by reference to size and catchment area) ranging downwards from the Urban Activity Centre Zone through the Suburban Activity Centre and Main Street Zones and the Township Activity Centre and Main Street Zones to the Local Activity Centre Zone.
The Wakefield Companies contended that the Code provides that shops outside Activity and Main Street Zones and in the Employment Zone are to be relatively small-scale and complement large scale shopping in the Activity and Main Street Zones. They referred to Desired Outcome 1 and Performance Outcome 1.2 for the Employment Zone.
The Wakefield Companies contended that:
[T]he proposed supermarket, bottleshop and shop tenancy will effectively function as an activity centre and will not complement role of existing activity centres in Gawler but will diminish the role of existing activity centres as the primary locations for shopping.
We are concerned that an approval of this application would amount to, effectively, a complete re-zoning of the subject land, given the dramatic departure from legislator planning policy and completely undermine the established retail framework of Gawler as directed by the Code.
…
As outlined above, the strategic implications and corresponding impacts of the proposed development will undermine the retail hierarchy in the town of Gawler and detrimentally affect as nurse, rather than demonstrating economic, environmental or social benefit.
…
Full de-regulation of the retail centres hierarchy can ultimately undermine the viability and result in the failure of existing centres in Main Street and retail core areas resulting in the poor or fragmented spatial distribution of centres that do not equitably service all population catchments. [16]
[16] Underling in original.
The Wakefield Companies made specific criticisms of the Macroplan report, including that it was outdated and that it did not consider the current zoning and retail hierarchy in the Code.
On 7 December 2022 the Commission refused planning consent in respect of the proposed development.
On 7 February 2023 Revelop filed an appeal to the Environment Court against the refusal.
On 6 March 2023 the Wakefield Companies each filed an application in the Environment Court to be joined as a respondent to the appeal in addition to the Commission. They identified their interest by reference to their entitlement to notice and right of appeal and further said:
The Joinder Applicant is concerned about the detrimental impact of the proposed development on business and economic growth within the Council area due to the effect of the proposed development on the established retail centre hierarchy Gawler expressly provided for in the code, in particular –
(a)the threat the proposed development poses to the role of shopping in other zones and activity centres, contrary to employment zone desired outcome DO 1;
(b)the scale of the proposed development exceeding that to service local community or for the provision of convenient day to day goods and services contrary to employment zone PO 1.1 and 1.2;
…
(e)the adverse effect on the activity centres and centres policy and hierarchy described in the overall structure of the code and the general policies (including the Out of Activity Centres policies PO 1.1 and 1.2).
The Joinder Applicant has a direct and special interest in the preservation of the activity centres and particularly the activity centre applicable to the Affected Land and wish to be heard in these proceedings.
On 26 April 2023 the Commissioner delivered reasons for judgment and ordered that the Wakefield Companies each be joined as an additional respondent.
On 16 May 2023 Revelop filed an appeal to this Court against the joinder orders by the Commissioner.
The Commissioner’s reasons
In addition to the joinder applications by the Wakefield Companies, an unrelated third party, Harmony Gawler Pty Ltd (Harmony) also applied for joinder. Unlike the Wakefield Companies, Harmony had not made representations to the Commission and had no appeal rights in respect of an approval decision. The Commissioner in his reasons addressed all three applications.
The Commissioner summarised the background, legislative scheme and material placed before the Court by the three joinder applicants concerning their interest and intended conduct if joined as parties to the appeal.
The Commissioner addressed a contention by Revelop that the joinder applicants had not established a special interest and reliance by Revelop on the High Court decision in Argos Pty Ltd v Corbell.[17] The Commissioner said:
It was put for the appellant that all joinder applicants, being landowners of shopping centres of no less than 3.5km to 4.5km from the subject land, simply did not meet the tests for joinder as they have not established a special interest in this action. …
…
The High Court decision in Argos, however, has limited application here. In Argos, in order to succeed in pursuing an appeal against the Minister’s decision, an applicant must demonstrate that they are “aggrieved” by the Minister’s decision. This is to be contrasted with the legislative framework of the PDI Act for a restricted development proposal where, as I said before, any person may make a written representation and appear before the relevant authority to make oral submissions. Such a representor must be given notice of the authority’s decision and may appeal that decision. Any representor, including a commercial competitor landlord, is entitled to file an appeal without having to seek leave or demonstrate that they are likely to suffer detriment as a consequence of the proposal.
Moreover, as with the subject proceeding, where the development applicant has appealed a refusal, the Court must give notice to all representors of that appeal having been filed and confirm their rights to seek joinder. The restricted development representor may be joined without having to demonstrate a “special case”, or that they are an aggrieved or directly affected person – a matter to which I refer later.[18]
[17] (2014) 254 CLR 394.
[18] Footnotes omitted.
The Commissioner referred to the decision of the Full Court in Pitt v Environment, Resources and Development Court[19] and said:
Pitt deals with joinder applications by neighbouring residents opposed to the proposed expansion of the Calvary Hospital in North Adelaide. It was noted that under the legislative framework of the City of Adelaide Development Control Act, 1976, none of the persons seeking joinder enjoyed a right of appeal. In his reasons, Duggan J set out the considerations which would give rise to an interest over and above that of the general public, something he termed a ‘genuine interest’. This distinction needed to be created in order to avoid having the public at large, or persons who might be seen as mere meddlers or ‘busybodies’, participating as parties in court proceedings. He put that only those neighbours whose direct interests would be prejudiced by an outcome of the appeal exhibited an interest sufficient to merit joinder. This he termed a ‘genuine interest’.
[19] (1995) 66 SASR 274.

The Commissioner referred to factors identified by Doyle CJ and Duggan J in Pitt and said:
On my assessment of all the relevant factors, the cases of all joinders are strong. In this respect, all joinder applicants have participated in making public representations, and all personally addressed the SCAP. The nature of evidence which all applicants propose to bring before the Court are ‘on point’.
The Commissioner referred to the contention by Revelop that the joinder applicants had not established a special interest and said:
Regardless, the terms of s 205(2)(c) under the PDI Act (which ostensibly reproduce those of s 88(2)(c) of the Development Act) make it clear that the additional joinder considerations apply “other than” in respect of “a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant) …”. Accordingly, a representor who is entitled to be given notice in a restricted development matter, per s 110(6)(a)(i), is not expected to demonstrate a ‘special interest’ in order to join as a party to any associated court proceedings.
The Commissioner referred to the contention by Revelop that a shopping centre owner does not have a sufficient interest in proceedings to merit joinder, relying on the decisions of other Commissioners in Remibisi Pty Ltd v City of Salisbury[20] and Leasecorp Aldinga Pty Ltd v City of Onkaparinga[21], and said:
Leasecorp and Remibisi, however can be distinguished from the subject proceedings in a number of respects. In both of the matters referred to s 88(2)(c) of the Development Act applied. The impugned proposal in Leasecorp was a Category 2 matter whilst the joinder applicant in Remibisi, as with Harmony in the current proceedings, was not a representor in a Category 3 matter and was not entitled to be given notice of the Council decision. It was made clear in the decisions of the Commissioners in both Leasecorp and Remibisi that they turned on the considerations of special interest and the interests of justice which, for reasons set out earlier, do not apply to the Wakefield applicants.
[20] [2008] SAERDC 28.
[21] [2008] SAERDC 69.
The Commissioner addressed the impact of the proposal on the interests of the Wakefield Companies and the assistance they intended to provide to the Court. The Commissioner concluded that they should be joined as parties to the appeal.
The Commissioner finally addressed the joinder application by Harmony. Because Harmony had not made representations, it had no right of appeal against an approval decision and section 205(2)(c) applied to it. Applying the factors identified in section 205(2)(c), the Commissioner refused Harmony’s joinder application.
The legislative regime
The Act
Sections 101 and 102 of the Act provide that, subject to other provisions of the Act (not relevant in the present case), development can only be undertaken if it is approved development. This requires (amongst other things) that the relevant authority has assessed the development against and granted consent in respect of (amongst other provisions) the relevant provisions of the Planning Rules (planning consent).
The Planning Rules include the Code, which is required by sections 65 and 66 to be prepared and maintained by the Commission.
Subsection 102(2) of the Act provides for an application for development approval. Section 17 of the Environment Court Act governs applications for joinder. I refer to an applicant for development approval as the developer (noting that the Act does not require the applicant to be the owner or the proposed developer).
Section 110 of the Act applies to restricted development. It relevantly provides:
110—Restricted development
(1)The Commission will determine, in relation to proposed development classified as restricted development, whether or not the development will be assessed and, if so, whether or not planning consent will be granted, and in doing so will act as the relevant authority under this Act.
(2)Subject to this section, if proposed development is to be assessed as restricted development—
(a)     notice of the application for planning consent must be given, in accordance with the regulations, to—
(i)an owner or occupier of each piece of adjacent land; and
(ii)any other owner or occupier of land which, according to the determination of the Commission, would be directly affected to a significant degree by development if it were to proceed; and
(iii)any other person of a prescribed class; and
(iv)the public generally, including by notice placed on the relevant land; and
(b)     a person who is interested in doing so may, in accordance with the regulations and within a period prescribed by the regulations, make representations to the Commission in relation to the granting or refusal of planning consent; and
(c)     if a representation is made under paragraph (b) (being a representation received in accordance with the regulations and within a period prescribed by the regulations)—
…
(ii)the Commission must allow the person who made the representation and who, as part of that representation, indicated an interest in appearing before the Commission, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation and, if the person so appears, the Commission must also allow the applicant a reasonable opportunity, on request, to appear personally or by representative before it in order to respond to any relevant matter.
…
(6)If a person makes a representation under subsection (2)(b) in relation to any development under this section, the Commission must—
(a)     give the person notice of—
(i)its decision on the application for development; and
(ii)the date of the decision; and
(iii)the person's appeal rights under this Act; and
(b)     give to the Court notice of—
(i)its decision on the application for development; and
(ii)the date of the decision; and
(iii)the names and addresses of the person or persons who made representations to the Commission under that subsection.
(7)An appeal against a decision on a development classified as restricted development by a person who is entitled to be given notice of the decision under subsection (6) must be commenced within 15 business days after the date of the decision.
(8)If an appeal is lodged against a decision on a development classified as restricted development by a person who is entitled to be given notice of the decision under subsection (6), the applicant for the relevant development authorisation must be notified by the Court of the appeal and will be a party to the appeal.
(9)A decision of the Commission in respect of a development classified as restricted development in respect of which representations have been made under this section does not operate—
(a)     until the time within which any person who made any such representation may appeal against a decision to grant the development authorisation has expired; or
(b)     if an appeal is commenced—
(i)until the appeal is dismissed, struck out or withdrawn; or
(ii)until the questions raised by the appeal have been finally determined (other than any question as to costs).
Sections 202 and 205 of the Act confer rights of appeal and govern appeals. They relevantly provide:
202—Rights of review and appeal
(1)The following applications or proceedings may be made or brought under this Division:
…
(b)     a person who has applied for a development authorisation may, in respect of a prescribed matter
…
(B) appeal to the Court against a prescribed matter;
…
(d) a person who is entitled to be given a notice of a decision under section 110(6) in respect of development classified as restricted development by the Planning and Design Code may appeal to the Court against the decision;
…
(4)     Subsection (1) does not—
(a)     derogate from any other provision of this Act that confers a right to apply to the Court in specified or prescribed circumstances;
(b)     derogate from any other provision of this Act that prevents or restricts a right to apply to the Court in specified or prescribed circumstances.
…
205—Powers of Court in determining any matter
(1)     The Court may, on hearing any proceedings under this Act—
(a)     confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate;
…
(f)     make any consequential or ancillary order or direction, or impose any condition, that the Court considers necessary or expedient.
(2)The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:
(a)     subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged;
(b)     if—
(i)a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or
(ii)a third party is appealing against a decision to grant a development authorisation,
the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit);
(c)     the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under section 122, or a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant)), determine not to grant the application—
(i)on the ground that the Court is not satisfied that the person has a special interest in the subject‑matter of the application; or
(ii)on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or
(iii)on any other ground determined to be appropriate by the Court.
The Code
Desired Outcome 1 in respect of the Employment Zone is:
A diverse range of low-impact light industrial, commercial and business activities that complement the role of other zones accommodating significant industrial, shopping and business activities.
Performance Outcome 1.2 is:
Shops provide convenient day-to-day services and amenities to local businesses and workers, support the sale of products manufactured on-site and otherwise complement the role of Activity Centres.
The corresponding Designated Performance Feature 1.2 is:
Shop where one of the following applies:
(a)     with a gross leasable floor area up to 100m²
(b)     is a bulky goods outlet
(c)     is a restaurant
(d)is ancillary to and located on the same allotment as an industry and primarily involves the sale by retail of goods manufactured by the industry.
The Environment Court Act
Section 17 of the Environment Court Act applies generally to the jurisdiction of the Environment Court. It relevantly provides:
17—Parties
(1)The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).
(2)     A commissioner may not make an order under subsection (1) except—
(a)     on the application of, or with the consent of, the party to be joined; or
(b)     with the concurrence of a Judge.
(3)An order under subsection (1) may be made on an application without notice to any person.
…
Application of section 205(2)(c)
Revelop contends on appeal that section 205(2)(c) of the Act applied to the joinder applications by the Wakefield Companies and the Commissioner erred by not applying it.
Revelop did not advance this contention before the Commissioner. Nor is there a ground of appeal that the Commissioner erred in not applying section 205(2)(c) of the Act. However, the Wakefield Companies take no issue with Revelop raising this contention in submissions on the appeal and I therefore address it on its merits.
The Commissioner proceeded on the basis that the exception contained in the parentheses in section 205(2)(c) applied because the Wakefield Companies were entitled to be given notice of the Commission’s refusal decision in prescribed circumstances, namely pursuant to section 110(6)(a) of the Act.
On appeal, Revelop contends that:
1the Wakefield Companies were not entitled to be given notice of the Commission’s refusal decision pursuant to section 110(6)(a) of the Act; and
2there were no prescribed circumstances.
Entitlement to notice
Section 110(6)(a) of the Act provides:
(6)If a person makes a representation under subsection (2)(b) in relation to any development under this section, the Commission must—
(a)     give the person notice of—
(i)    its decision on the application for development; and
(ii)     the date of the decision; and
(iii)    the person's appeal rights under this Act;
Revelop contends that the evident purpose of the requirement for notice is to ensure that a representor is aware of their right to appeal against a decision approving a proposed development under section 202(1)(d). Revelop contends that words of limitation should be read into section 110(6)(a)(i) such that it reads:
·“its decision on the application for development when it approves the application”; or alternatively
·“its decision on the application for development when it gives rise to appeal rights”.
Revelop contends that the effect of reading in words of limitation is that the obligation on the Commission to give notice is confined to notice of refusal decisions and does not apply to approval decisions. Revelop contends that the same words of limitation should be read into section 110(6)(b)(i).
Starting with the text of section 110(6)(a), the obligation imposed on the Commission to give notice to representors is unqualified: it is not confined to notice of refusal decisions, nor is it confined to representors who opposed the development proposal.
Turning to the immediate context of section 110(6)(a), paragraph (b) of subsection 110(6) requires the Commission to give notice of a decision to the Environment Court. That obligation is also unqualified.
Turning to the context of section 110(6) in the Act as a whole, section 202(1)(d) confers on a representor entitled to be given notice under section 110(6) a right of appeal against the Commission’s decision. That right is not expressed to be confined to appeals against refusal decisions, nor to appeals by representors who opposed the development proposal.
Turning to the context of the legislative history of section 110(6)(a), section 38(12)(a) of the Development Act 1993 (SA) (the Previous Act) required a relevant authority to give to each person who made a representation notice of its decision and of the date of the decision and, in the case of a Category 3 development, of the person's appeal rights under that Act. Notice was required to be given to representors who had no appeal rights. There is nothing in section 110(6)(a) of the Act or the Act as a whole that suggests that a different approach is taken under the Act.
Turning to the evident purpose of section 110(6)(a), one of its evident purposes is to make a representor aware of their appeal rights because subparagraph (iii) expressly requires this. However, there is nothing in the provision or the Act as a whole that so confines the evident purpose of notice under section 110(6)(a). A person who has made representations whether in support or against a proposed development has an obvious natural interest in being aware of the decision. The evident purpose of section 110(6)(a) includes making a representor (for or against) aware of the decision following their representation.
As observed above, Revelop contends that the same words should be read into section 110(6)(b), recognising that paragraphs (a) and (b) are likely to be construed in the same manner. In the immediate sense, the evident purpose of subparagraph (iii) of paragraph (b) is obviously to ensure that the Environment Court is aware of the details of representors in the event that an appeal is filed. This would not be needed if the appeal is filed by a representor because the Court would be aware of the identity of the appellant. The evident purpose appears to be to enable the Court to consider whether any representors should be joined as parties to or given notice of an appeal. There is no basis to read into section 110(6)(b) the words of limitation suggested by Revelop.
Having regard to its text, context and evident purpose, section 110(6)(a) requires the Commission to give notice of its decision to all representors, regardless of whether they supported or opposed the proposed development and regardless of the decision.
Prescribed circumstances
The exception contained in parentheses in section 205(2)(c) of the Act is expressed in the following terms:
(other than the Crown, a relevant authority applying under section 122, or a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant))
Revelop contends that the words “prescribed circumstances” should be construed as meaning circumstances prescribed by regulations made under the Act. The Planning Development and Infrastructure (General) Regulations 2017 (SA) do not prescribe any such circumstances. Revelop contends therefore that the exception in parentheses has no application to any person entitled to be given notice under the Act.
The Wakefield Companies contend that the words “prescribed circumstances” should be construed as meaning circumstances prescribed by the Act (or potentially also by regulations).
Starting with the text of the exception in relation to persons entitled to notice, the word “prescribed” is capable of referring to a prescription in the same legislation or to a prescription by regulations made under the legislation (or both). Speaking of legislation generally, it is used in both senses. The words “prescribed circumstances” considered in isolation do not indicate which is the proper construction.
The text refers to “a person who was entitled to be given notice of a decision in prescribed circumstances”. It does not identify specific provisions of the Act that entitle a person to be given notice of a decision. It leaves those provisions to be identified in order to apply the exception. This suggests that prescribed circumstances are contained in the Act and the reason for referring to prescribed circumstances is to indicate that the Act prescribes the circumstances in which a person is entitled to be given notice.
The text includes the words at the end of the exception “(if relevant)”. The Act does not require notice of a decision to a person other than the applicant for development approval in most cases. Hence, there will not be a person entitled to notice in most cases and the reference to such a person will be not relevant in most cases.
Turning to the context of the exception within section 205(2)(c), that provision identifies grounds on which a joinder application may be refused by the Environment Court. Section 202(1)(d) confers a right of appeal on a person entitled to notice of a decision in respect of restricted development. Given such a person’s special position, it may be expected that the legislature intended to except such a person from the regime relating to joinder effected by section 205(2)(c).
Turning to the context of the legislative history of section 205(2)(c), section 88(2)(c) of the Previous Act was largely in the same terms. The exception in parentheses in that provision was as follows:
(other than the Crown, a relevant authority applying under section 37, or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant))

Section 37 of the Previous Act was the equivalent of section 122 of the Act. The exceptions in respect of the Crown and a relevant authority were the same under the Previous Act as under the Act. The third exception was also expressed as applying to a person entitled to be given notice of a decision and referred to a Category 3 development. A Category 3 development was one in respect of which a representor had appeal rights under the Previous Act and therefore, although a different concept to a restricted development, was for present purposes the equivalent of restricted development. The legislative history supports the construction advanced by the Wakefield Companies.
Turning to the evident purpose of the exception, its evident purpose is to recognise the special position of persons entitled to notice of a decision. It would be odd to leave it to regulations to determine whether such persons are excepted from the regime effected by section 205(2)(c) such that, in the absence of regulations, there would be no such exceptions and the regulations might discriminate between different such persons.
Having regard to its text, context and evident purpose, the words “prescribed circumstances” in the exception contained in parentheses in section 205(2)(c) encompass circumstances prescribed by the Act itself.
Conclusion
The exception in parentheses in section 205(2)(c) applied to the Wakefield Companies. Section 205(2)(c) had no application to their joinder applications. The Commissioner did not err in proceeding on that basis.
This ground of appeal is not established.
Matters taken it into account under section 17
Revelop contends that, on the assumption that section 205(2)(c) of the Act did not apply (as I have concluded), the Commissioner held that the Court could not take into account any of the matters contained in subparagraph (i), (ii) or (iii) of section 205(2)(c) in the exercise of the general discretion under section 17 of the Environment Court Act and, in so doing, erred.
This contention is not the subject of a ground of appeal. However, the Wakefield Companies take no issue with Revelop raising this contention in submissions on the appeal and I therefore address it on its merits.
The Wakefield Companies accept that the mere fact that section 205(2)(c) of the Act does not apply does not preclude the Court from taking into account in the exercise of the general discretion under section 17 of the Environment Court Act the matters listed in the subparagraphs of section 205(2)(c). The Wakefield Companies contend that the Commissioner did not hold otherwise.
The three matters identified in the subparagraphs of section 205(2)(c) are:
1the interest of the joinder applicant in the subject matter of the application;
2the interests of justice; and
3any other appropriate matter.
If the Commissioner had held that none of these matters could be taken into account in the excise of the discretion under section 17, it would have entailed that the Court was and is bound to grant a joinder application and has no discretion to refuse it. The Commissioner did not so hold and, on the contrary, exercised a general discretion.
Revelop relies on paragraphs [48] and [69] of the Commissioner’s reasons. At paragraph [48], the Commissioner said:
Regardless, the terms of s 205(2)(c) under the PDI Act (which ostensibly reproduce those of s 88(2)(c) of the Development Act) make it clear that the additional joinder considerations apply “other than” in respect of “a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant) …”. Accordingly, a representor who is entitled to be given notice in a restricted development matter, per s 110(6)(a)(i), is not expected to demonstrate a ‘special interest’ in order to join as a party to any associated court proceedings.[22]
[22] Italics in original.
Paragraph [48] appears in a section of the Commissioner’s judgment under the heading whether a “special interest” was to be established. The Commissioner was merely saying that a “special interest” is not a prerequisite under section 17 when section 205(2)(c) does not apply.[23] The Commissioner was not saying that the Court cannot have regard to the interest of the applicant in exercising the general discretion under section 17. The Commissioner did not make any reference in that paragraph to the interests of justice or other appropriate factors.
[23] Which is itself a contention with which Revelop takes issue and which is addressed in the next section below.
At paragraph [69], the Commissioner was addressing the joinder application by Harmony after already having decided to exercise the discretion to join the Wakefield Companies. The Commissioner said (footnote in original):
However, unlike the Wakefield applicants, in exercising its discretion on whether to join Harmony the Court may take into consideration whether the applicant demonstrates a special interest; whether the interests of justice require the joining of this applicant: and to have regard to any other matter considered relevant in the circumstances.[24]
[24] s 205(2)(c) PDI Act.
The Commissioner was merely saying that, in the case of the Harmony application, section 205(2)(c) applied to provide that the Court may take into consideration the three listed matters and that Harmony’s position was different to that of the Wakefield Companies to whose application section 205(2)(c) did not apply. The Commissioner was not saying that he was precluded in the case of the Wakefield Companies from taking into account, for example, the interests of justice or any other relevant matter.
Further, the Commissioner’s reasons demonstrate that the Commissioner did take into account various matters (including the interest of the Wakefield Companies and the interests of justice) in exercising the general discretion under section 17 and did not regard himself as precluded from doing so. Indeed Revelop contends that the Commissioner took those matters into account without evidence.
This ground of appeal is not established.
Requirement for special interest or adverse/prejudicial effect?
Revelop contends that, on the assumption that section 205(2)(c) of the Act did not apply (as I have concluded), the Commissioner erred in:
(a)holding that the Wakefield Companies were not required to establish a “special interest”;[25]
(b)holding that the Wakefield Companies were not required to establish that they were adversely affected as required by the High Court in Argos Pty Ltd v Corbell;[26]
(c)distinguishing the decisions in Remibisi Pty Ltd v City of Salisbury[27] and Leasecorp Aldinga Pty Ltd v City of Onkaparinga;[28]
(d)failing to determine, as required by the Full Court decision in Pitt v Environment Resources and Development Court,[29] whether the Wakefield Companies’ interests would be prejudicially affected by an order that could be made on the appeal;[30]
(e)making a joinder order in the absence of evidence that the Wakefield Companies’ interests would be adversely affected by the proposed development;[31]
(f)concluding that the interests of the Wakefield Companies as owners of commercial land more than 3.5 kilometres from the proposed development were sufficient to justify joinder.[32]
[25] Not an explicit ground of appeal.
[26] (2014) 254 CLR 394.
[27] [2008] SAERDC 28.
[28] [2008] SAERDC 69.
[29] (1995) 66 SASR 274.
[30] Ground 6.
[31] Ground 3.
[32] Ground 1.
There is a high degree of overlap between these various grounds of appeal and they were argued on appeal largely on a composite basis.
Revelop’s essential contention is that binding High Court and Full Court authority, or at least non-binding Environment Court authority, requires as a prerequisite to exercise of the discretion to join a party under section 17 of the Environment Court Act that the applicant have a special interest in the subject matter of the appeal and that the applicant would be adversely or prejudicially affected by the proposed development. Revelop contends that this prerequisite applies alike to representors who are given appeal rights in respect of an approval decision and to representors who have no appeal rights.
In Argos Pty Ltd v Corbell[33] three applicants sought review under the Administrative Decisions (Judicial Review) Act 1989 (the ACT Act) of a decision of the Minister to approve development of a new commercial development at a site near to the applicants’ premises.
[33] (2014) 254 CLR 394.
Section 5 of the ACT Act gave an applicant standing if they were a “person aggrieved”, which was defined by section 3B to be a “person whose interests are adversely affected by the decision”. Two applicants operated supermarkets on the premises and the third applicant was the lessor of the premises. The High Court held that, on the facts, the supermarket operators’ interests were adversely affected by the decision but the lessor’s interests were not.
The decision in Argos is of no assistance in the present case because it turned on the statutory definition of “person aggrieved” and the facts of that case.
The principal authority relied on by Revelop is Pitt v Environment Resources and Development Court.[34] Calvary Hospital sought planning approval under the City of Adelaide Development Control Act 1976 (SA) to extend existing wards and construct a parking station. That Act did not give any right of appeal to third parties against planning decisions. The Council refused development approval. Calvary Hospital appealed to the Environment Court. The appellants lived in close proximity to Calvary Hospital. They applied to the Environment Court to be joined as parties to the appeal. The application was refused by the Court. On appeal, the Full Court held that the exercise of the discretion miscarried and ordered joinder on the basis that the development had the potential to affect the amenity of the appellants to a significant degree.
[34] (1995) 66 SASR 274.
Duggan J (with whom Nyland J agreed) said:
… I agree with the argument that his Honour allowed in relevant factors to influence him.
First he expressed the opinion that the appellants could be joined as parties only if their application disclosed “special and unusual circumstances”. the excise of the discretion is not expressly or impliedly limited in this way. There is an important distinction to be drawn between a test based upon special circumstances which would narrow considerably the scope for directing joinder under the Act and a situation in which the applicant has “a special interest in the subject matter of the action” (Australian Conservation Foundation Inc v Commonwealth), although I am not suggesting that the latter circumstance, by itself, would justify the making of an order for joinder.
It is a proper exercise of the powers of the ERD Court to exclude mere meddlers or “busybodies” from the proceedings. An essential starting point for the exercise of the discretion to permit joinder in proceeding such as this is to determine whether the applicant for joinder has a genuine interest in the appeal. Such an interest would arise if an audit could be made on appeal which would prejudicially affect the interest of the person applying to be joined. However I do not think it can be said that the features of the case of an applicant for joinder under s 17, taken as a whole, must disclose something in the nature of a “special case”. ..
…
I have already referred to the relevance of a genuine interest in the proceedings, emanating in this case from the fact that the appellants are at risk of an order being made which will prejudicially affect their interests. As I have pointed out, standing might sell such an interest might not lead to a successful application under s 17. However it is relevance take into account the extent to which the proposed development would affect the appellants. They live in a residential area but in close proximity to a large and tuition. The application proposes substantial development including first and second level extensions to an existing building and the construction of a two-level parking station. The development, therefore, has the potential to affect the amenity of the appellants to a significant degree and they will reduce the value of their properties.
…
There are other matters relevant to the excise of the discretion to permit joinder. The court has an interest in ensuring that proceedings before it to not become protracted or cumbersome. It is relevant to consider the extent to which the issues which the appellants would raise coincide with the issues to be raised by the parties as of right to the appeal. The number of party seeking to be joined to the proceedings is also a matter of some importance. However these considerations, when applied to the present case, do not seem to weigh against the appellants’ case.[35]
[35] At 281, 282. (Citations omitted).
Doyle CJ expressed substantial agreement with Duggan J but expressed his own view of the scope of the power given by section 17. Doyle CJ said:
The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest in the establishment of factors which make it appropriate to make an order for joinder in the particular case …
…
My opinion [the Judge’s] statement that the right to participate must be limited to special circumstances, and what he said in explanation of that approach, indicates to narrow an approach to the power…. It appears to me that his honour envisaged joinder only in exceptional cases. The reasons which I have indicated that is not the correct approach. As I have already explained, it would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth.[36]
[36] At 276. (Citations omitted).
Both Duggan J and Doyle CJ emphasised that the City of Adelaide Development Control Act 1976 (SA) did not confer any appeal rights on third parties.
The threshold test formulated by Duggan J (with whom Nyland J agreed) was expressed in terms of a “genuine interest in the appeal”, which would arise if “an order could be made on appeal which would prejudicially affect the interest” of the joinder applicant.[37] The threshold test formulated by Doyle CJ was expressed in terms of “a sufficient interest”.[38]
[37] At 281.
[38] At 276.
Australian Conservation Foundation Inc v Commonwealth,[39] to which the Full Court referred in Pitt, concerned the test for standing to seek a declaration or injunction to enforce a public duty or prevent violation of a public right. Gibbs J (with whom Mason J relevantly agreed) identified the test for standing in that context as being whether the plaintiff has “a special interest in the subject matter of the action”.[40]
[39] (1980) 146 CLR 493.
[40] 527.
Remibisi Pty Ltd v City of Salisbury[41] involved an application by a third party for joinder to a developer’s appeal against a refusal decision by the Council. The third party had no right of appeal under the Previous Act against an approval decision. Commissioner Hodgson concluded that the joinder applicant had no special interest in the subject matter of the application and it was not in the interests of justice to order joinder, applying section 88(2)(c) of the Previous Act.
[41] [2008] SAERDC 28.
Leasecorp Aldinga Pty Ltd v City of Onkaparinga[42] involved applications by 13 third parties for joinder to a developer’s appeal against a refusal decision by the Council. The development was categorised by the Council as category 3 and the third parties had made representations. Section 88(2)(c) of the Previous Act therefore did not apply. Commissioner Mosel joined one applicant but declined to join the other joinder applicants. Commissioner Mosel adopted the approach of the Full Court in Pitt and identified three factors as being relevant, the first of which was the nature and strength of the interests of the joint applicant in the decision under appeal. The joinder applicants were self-represented. No argument was evidently put by them to the Commissioner that the existence of their appeal rights in respect of an approval decision made a difference to the assessment. It appears to have been accepted that the approach identified in Pitt was to be adopted.
[42] [2008] SAERDC 69.
As observed above, the Wakefield Companies contend that the approach to the consideration of joinder of a third party to a developer’s appeal in the case of a representor who has statutory appeal rights in respect of an approval decision differs fundamentally from the case considered in Pitt where the third party has no appeal rights. I accept their contention.
The Act effectively provides two levels of decision making in respect of applications for development approval. At the primary level, a decision is made by the relevant authority under section 102 of the Act granting consent (subject to conditions or not) or refusing consent. At the secondary level, appeal rights are granted principally by section 202 of the Act and a decision is made by the Environment Court reviewing the primary decision and affirming, varying or reversing it.
This two level structure results in the ultimate decision being made by the Environment Court at the secondary level. The ultimate decision whether consent is granted (and if so what conditions are to be imposed) or refused is made by the Environment Court. The Environment Court has power under section 205(2)(b) to consider the matter de novo and often does so.
In the case of restricted development, representors (special representors) are not only entitled to be heard by the relevant authority at the primary level but are also given an unconditional right of appeal, if dissatisfied with the decision at the primary level, to appeal to the Environment Court at the secondary level. They are placed by the legislature in a special position compared to any other third party (whether or not a representor) (a third party), who has no right of appeal to the secondary level.
In the case of restricted development, at the primary level the relevant authority is the decision maker and hears representations from the developer (and potentially representor supporters) in favour of the proposed development and from representors opposing the proposed development or in respect of conditions.
In the case of restricted development, a matter will reach the secondary level as a result of either an appeal by a special representor against a grant of consent (in which case the developer and relevant authority will be respondents to the appeal) or an appeal by the developer against a refusal of consent (in which case the relevant authority will be an automatic respondent to the appeal).
It would be incongruous if a special representor had a right to be heard at the primary level and, if dissatisfied with the decision, an unconditional right to be heard (by appealing) at the secondary level but, if satisfied with the decision, no right to be heard at the secondary level without first establishing what a third party, not placed in that special position by the legislature and without any appeal rights at the secondary level, is required to establish as a threshold requirement.
The rationale for imposing a threshold requirement for joinder, applicable in the case of a third party without appeal rights, is not applicable to a special representor on whom appeal rights are conferred.
This is not to say that the Environment Court does not have a general discretion whether to join a special representor as a respondent to a developer’s appeal. Section 17 confers a general discretion. On a joinder application by a special representor, even though there is no threshold requirement, it will be appropriate for the Environment Court to take into account the role to be played by the special representor (including the extent to which it will assist the Court) and the extent to which joining them as a party will add to the length or cost of the appellate proceeding.

An alternative way of considering the position is that, even if it be considered that there is a threshold requirement of establishing a “genuine interest” (as expressed by Duggan J in Pitt) or a sufficient interest (as expressed by Doyle CJ in Pitt), that interest is established in the case of a special representor by their having participated in the decision at the primary level and having a right of appeal at the secondary level.
Revelop advances a “floodgates” argument that, if representors in relation to restricted development do not need to meet a threshold requirement for joinder beyond having made a representation to the relevant authority, the Court in appeals involving restricted development might be flooded with representor parties joining as parties, extending the time and expense of appeals.
There are several answers to this contention. First, there is no suggestion that this has occurred to date.
Secondly, the Environment Court has a general discretion whether to make a joinder order. It can take into account, for example, the assistance that will be provided by an applicant if joined, the number of applicants for joinder to the appeal, the nature of the applicant’s interest and the effect of joinder on the time and cost of the appeal.
In a case in which an applicant for joinder is a mere busybody and/or will not make any useful contribution to the appeal and/or will greatly extend the time and cost of the appeal, the Court can exercise its discretion to refuse a joinder application.
In this respect, in the present case, it was apparent from the Wakefield Companies’ representations and from the nature of their legal representation that they had a significant interest in the appeal (albeit not one that would have been sufficient if the development had not been restricted development), they would significantly contribute to the appeal and their involvement would not unduly extend the time or cost of the appeal.
Thirdly, it is the legislature which adopted the policy of giving appeal rights to representors in relation to restricted development. Any concern about opening the floodgates is a matter for the legislature. The legislature self-evidently did not consider that this overwhelmed the policy considerations in favour of granting appeal rights in restricted development matters.
In Pitt itself, the Court emphasised the importance of the absence of appeal rights in the joinder applicants and distinguished the position if appeal rights existed. Duggan J said:
His Honour also placed considerable weight on the fact that the appellants are given no right of appeal. However this consideration would apply to all applicants for joinder. The circumstance which necessitates an application for joinder, the absence of an appeal as of right, cannot be used as an argument against joinder.
…
It is worth noting that s 17 does not allow a person in the position of the appellants to initiate an appeal: the joinder application, of its nature, can be made only after an appeal has been initiated by a party enjoying a right of appeal.[43]
[43] At 281, 282.
Doyle CJ said:
[T]he City of Adelaide Development Control Act 1976 (SA) … gave the appellants before us no right of appeal and there was no power to join them as a party to an appeal…
…
[I]n my opinion, it is not correct to reason that because an order for joinder permits an involvement in the proceedings which under the City of Adelaide Development Control Act was not permitted, a restrictive approach should be taken to the making of an order for joinder…
… In my opinion His Honour appears to have placed too much emphasis upon the fact that the City of Adelaide Development Control Act did not provide the rights of appeal for third parties or for rights of joinder.[44]
[44] At 275, 276.
In 21-25 South Esplanade Pty Ltd v State Planning Commission[45] the developer appealed against a refusal by the Commission of development approval under the Previous Act in respect of a category 2 development. The developer and the Commission reached a compromise agreement that the appeal be resolved by consent orders to be made under section 16 of the Environment Court Act approving a revised form of development. 21-25 South Esplanade Pty Ltd, amongst others, applied to be joined as a respondent to the appeal. Section 88(3)(c) of the Previous Act applied because the development was categorised as a category 2 development. The Environment Court made an order for joinder. This had the consequence that the matter could no longer be resolved by consent orders and was required to proceed to a hearing on the merits.
[45] [2022] SASC 106.
Kourakis CJ held that the Environment Court made a fundamental error by considering the position as if, in the absence of joinder, the appeal would proceed to a hearing on the merits. His Honour held that it ought to have considered the effect of joinder on the agreed resolution of the appeal and powers of the Court under section 16 of the Environment Court Act. The decision, insofar as it involves category 2, is not relevant but Kourakis CJ contrasted the position in respect of a category 3 development (equivalent to the position in respect of restricted development under the Act). Kourakis CJ said:
In the context of an appeal against the refusal of a development authorisation, the only non-party persons with a direct and material interest in the appeal are persons notified of a Category 3 development who, if the appeal is compromised by the grant of an authorisation without their joinder and consent, would suffer the prejudice of being denied a right of appeal against the giving of a development authorisation.
…
Their position may be contrasted with persons notified of a Category 3 development who may appeal against a development authorisation as of right. Category 3 representors are materially prejudiced if a relevant planning authority, and a proponent, reach a compromise after an appeal against a refusal of development authorisation is brought which results in orders in the ERD Court granting development consent. In that event persons notified of a Category 3 development are denied their rights of appeal, and possibly a de novo hearing on the merits of the development application.
…
A Category 3 representor is the paradigm case of a person who has a direct and material interest in the matter, in the sense of an appeal against a refusal of development consent, and who may be materially prejudiced by a settlement in which consent to a revised development is given. That is so because if the relevant authority had given development consent in the first instance, a Category 3 representor would have an appeal as of right against that authorisation. However, if development authorisation is given pursuant to a compromise and consent orders made on appeal to the ERD Court, in the absence of a Category 3 representor, that right of appeal is lost.[46]
[46] At [14], [18], [38].
Although Kourakis CJ referred to a Category 3 representor having a right to be joined in the context of a settlement between the developer and relevant authority, the reasoning applies equally to the context of the appeal proceeding to a hearing on the merits.
The only case cited by the parties in which a Category 3 representor was not joined as a party to a developer’s appeal was Leasecorp Aldinga Pty Ltd v City of Onkaparinga.[47] However, that case is not a relevant authority because the joinder applicants in that case were self-represented and Commissioner Mosel did not address any contention that category 3 applicants were in a different position to category 2 applicants or that the approach identified in Pitt was not applicable to category 3 applicants.
[47] [2008] SAERDC 69.
It follows that either the Wakefield Companies did not need to establish as a prerequisite to joinder that they would be adversely or prejudicially affected if the appeal were allowed or this was necessarily established by the fact that they would have had appeal rights if the proposed development have been approved at the primary level.
These grounds of appeal are not established.
Evidentiary matters
Revelop contends that the Commissioner erred:
(a)in acting on submissions, unsupported by evidence, as to the claimed interests of the Wakefield Companies in the proceeding;[48]
(b)in acting on the basis that it was demonstrated by the evidence that the case in support of the Commission’s decision would not adequately be dealt with in the absence of the Wakefield Companies or that their joinder would materially contribute to the proper resolution of the proceeding.[49]
[48] Ground 2.
[49] Ground 7.
In relation to the first ground, for the reasons given above the Wakefield Companies did not need to establish an interest beyond that of possessing the appeal rights of a representor in relation to restricted development before a joinder order could be made.
Nevertheless, the nature of their interest was one of the relevant factors to be considered by the Commissioner. The Wakefield Companies had identified their interest in their representations summarised at [13]-[16] above and joinder applications summarised at [19] above.
Section 21(1)(b) of the Environment Court Act provides that “the Court is not bound by the rules of evidence and may inform itself as it thinks fit”. The Wakefield Companies had made the nature of their interest clear in their representations and joinder applications. Particularly given that no interest threshold applied beyond their appeal rights and the nature of their interest that they identified (which did not involve a claim of direct financial loss if the development were approved), the Commissioner was entitled to act on the basis of the representations and joinder applications. It was not necessary that the Wakefield Companies adduce evidence on oath.
In relation to the second ground, the nature of the assistance to the Court to be provided by the Wakefield Companies if joined was one of the relevant factors to be considered by the Commissioner.
In their joinder applications, the Wakefield Companies stated that, if joined, they intended to give evidence, adduce expert evidence probably including expert economic or retail evidence and planning evidence, and make submissions to the Court.
During the hearing of the joinder applications, counsel for the Wakefield Companies told the Commissioner that, if joined, they would procure and lead expert evidence from an economist or retail analyst or both on the range of retail offerings in the region, the scale of the offerings and the effect of the proposed development on those existing and emerging activity centres in response to the Macroplan report relied on by Revelop.
Revelop contends, and contended before the Commissioner, that the Wakefield Companies should have adduced evidence (presumably on oath) before the Commissioner of their intention to adduce expert evidence. Revelop also contended before the Commissioner that the Wakefield Companies should already have obtained that expert evidence.
Even in a court in which the rules of evidence apply, ordinarily the court would accept information from counsel about a party’s intentions to lead expert evidence and would not require evidence of those intentions. The Environment Court is not bound by the rules of evidence. It was entirely appropriate for the Commissioner to rely on the information provided to him by counsel concerning the Wakefield Companies’ intention to adduce expert evidence.
It was not necessary for the Wakefield Companies to procure the expert evidence before the joinder application was heard. This would probably entail the expenditure of several thousand dollars, which would be to no avail if the application were refused. It was sufficient for the Wakefield Companies to identify the expert evidence that they intended to adduce for the purpose of the Commissioner assessing the assistance that the Court would receive if they were joined as parties.
These grounds of appeal are not established.
Conclusion
None of the grounds of appeal are established. Revelop has not established any matter that vitiates the exercise of the Commissioner’s discretion. Indeed, I would have exercised the discretion in the same manner.
The appeal must be dismissed. I will hear the parties concerning costs.