When can a third party challenge decisions made during the development assessment process?

LG Leader December 2018

In a recent judgment, the Environment, Resources and Development Court confirmed when and how errors occurring during a council’s development assessment process can be challenged by third parties.

In the recent case of Bria v Wakefield Regional Council & Anor [2018] SAERDC 40, a third party attempted to argue a number of procedural errors had occurred during the assessment of a development, namely: that the proposal was non-complying; that the essential nature of the proposal was changed subsequent to public notification occurring; and that the proposal was unlawful and could not lawfully proceed.

The third party sought to challenge the alleged procedural errors under section 86(1)(b) of the Development Act 1993.

The Court was required to consider whether a third party can validly raise procedural errors in an appeal under section 86(1)(b). The Court determined that on an appeal pursuant to section 86(1)(b), an appellant cannot challenge procedural decisions made by a council in the processing of an application for development plan consent.

The Court stated that the intent of the Development Act is to limit both the class of third parties who may challenge decisions in the ERD Court and also the type of decisions which can be challenged. By way of summary:

• owners or occupiers of adjacent land who can demonstrate an interest in an application (which may include persons who are entitled to receive notice of a category 3 development) may only challenge procedural decisions relating to the nature and/or the category of a development; and
• persons who are entitled to be given notice of a category 3 development (which may include owners or occupiers of adjacent land) may only challenge the decision of the relevant authority as to the grant of development plan consent.

These limited rights of challenge are, of course, not to be confused with the range of rights available to an applicant for development consent. These rights are very broad and largely unconfined.