Orders granted, planning appeal resolved; this is the end of the matter…right?

LG Leader April 2017

A great number of planning appeals commenced by applicants against decisions to refuse development applications are settled.  An applicant will often adjust their proposed development and provide a “compromise proposal”.  If such a proposal is considered appropriate by a Council, the appeal will be resolved by way of Consent Orders granted by the ERD Court during a conference.

In these circumstances, it is usually assumed that there can be no further challenges to the approval of the development application.

This assumption is not correct. This is illustrated by the recent ERD Court decision in Thompson v City of West Torrens & Ors [2017] SAERDC 5.

This case concerned an application by the owners of adjacent land to the site of a development approved by way of consent Orders from the ERD Court in an earlier appeal, to have the Orders revoked such that the appeal would, once again be on foot so that they could argue for the refusal of the development application.

The circumstances in which this legal challenge arose are as follows:

On 3 August 2015 a development application seeking approval for the proposed development was lodged with the Council in the name of ‘In Property Design’, a registered business name.

Mr Thompson was the sole registered proprietor of that business name.

The Council determined that the proposed development was a Category 2 development.

The neighbouring property owners objected to the development application.  They were heard on their objection at the Council’s Development Assessment Panel meeting of 8 March 2016 at which the CDAP resolved to refuse the application.

On 7 April 2016, Mr Thompson commenced an appeal against this decision.  The appeal was commenced in his name, rather than in ‘In Property Design’.

The appeal was settled by way of a compromise proposal submitted by Mr Thomspon .  The Court issued Consent Orders on 30 May 2016 granting Development Plan consent to the proposed development.  The Consent Orders recorded ‘In Property Design’ as the appellant.

The neighbouring property owners alleged that the Consent Orders were irregularly made.  They alleged that Mr Thompson had no right to appeal the decision of the Council; that only an applicant for development authorisation could appeal the decision and, as ‘In Property Design’ was not a legal person, no appeal was possible.

The ERD Court found that it does indeed have the ability to “correct, revoke or vary” a consent Order granting Development Plan consent to a development application but only in circumstances where the Order was irregularly obtained, irregularly obtained or is otherwise the subject of jurisdictional error.

The Court found that it had jurisdiction to grant consent Orders in respect of Mr Thompson’s appeal and that the fact that the applicant for development authorisation was a business name was of no consequence.

The Court also considered whether the making of the Order was infected by an irregularity such that the interests of justice required the Orders be revoked and the appeal re-opened to protect the integrity of the Court’s processes.  The Court found that, in the circumstances, it was not in the interests of justice to revoke the Orders.

This judgment is a timely reminder to Council officers who are attending ERD Court conferences without legal representation to ensure that application documents are checked for any anomalies and that draft Orders are also carefully checked for errors.  Where any inconsistencies, errors or anomalies are found, legal advice should be sought to ensure that no risk of future legal challenge will arise.