In the recent ERD Court decision of Paior v The City of Marion [2013] ERDC 10 Her Honour Judge Cole reconsidered the scope of the Court’s powers under section 88(1)(a) of the Development Act 1993 (Act) to “confirm, vary or reverse any decision ... or determination to which the proceedings relate”.

The case considers the power of the Court to quash a development approval in circumstances where procedural decisions, in particular the public notification category assigned to the development, are later found to have been incorrect.

Significantly, the decision in Paior is at odds with the Court’s earlier decision in Turner v District Council of Yankalilla [2011] SAERDC 41, but consistent with its decision in Pohl v Adelaide Hills Council [2009] SAERDC 44.

Facts

The case concerns a development application for the construction of a two-storey dwelling with associated in-ground swimming pool and verandah (Development). Mr & Mrs Paior own the land adjacent the site of the Development.

The Council processed the Development as Category 1 for the purposes of public notification. Accordingly, Mr & Mrs Paior were not notified of the application. Further, they had no right of appeal against the Council’s subsequent decision to grant development plan consent to the Development.

Mr & Mrs Paior applied for review of the Council’s decision to process the Development as Category 1.

Issue

The Court was asked to consider a preliminary question about its power to quash a development approval.

The issue was whether the powers under Section 88(1)(a) when limited to the specific decision the subject of the appeal (ie to process the Development as Category 1), or whether they would also apply to subsequent decisions about the Development (ie the decision to grant development plan consent).

In the earlier decision of Turner, His Honour Judge Costello held that the power under Section 88(1)(a) could only be exercised in relation to the decision that was the subject of the appeal. Based on the decision in Turner, the only way to overturn a consent or approval granted after incorrect public notification would be to seek judicial review in the Supreme Court.

Decision

Her Honour Judge Cole determined that a wider reading of the words “to which the proceedings relate” (s88(1)(a)) was appropriate. In her view, the proceedings relate not only to the categorisation decision under appeal, but to the processing and assessment of the Development generally.

If it were otherwise, the Court would have the power to vary the original categorisation decision, but would not have the power to quash any subsequent consent or approval. Her Honour felt that outcome was unlikely to have been intended by the legislature.

Contrary to Turner, Her Honour’s decision in Paior gives the ERD Court sufficient power to quash a development consent or approval following a determination by the Court that the application was not assigned to the correct public notification category.

Conclusion

In light of the decisions in Paior, Turner and Pohl the law remains unsettled on the issue.

We understand that the Paior decision has been appealed to the Supreme Court. A decision of the Supreme Court on this issue will be binding on the ERD Court.