Council joined to appeal of DAC decision – Barrio Developments Pty Ltd v Development Assessment Commission [2017] SAERDC 21

In a recent decision the Environment, Resources and Development Court has joined a Council to an appeal by a developer against a decision of the Development Assessment Commission.
In Barrio Developments Pty Ltd v Development Assessment Commission, the Appellant (Barrio) was appealing the decision of the Commission to refuse consent to its proposal for a staged development at Gameau Road, Paradise.
The City of Campbelltown filed an application to be joined to the proceedings on the basis of its interest as the local government authority and owner of roads in the area. Commissioner Rumsby noted that the Council’s application “..challenges the normal convention of having only one planning authority in these matters..”. It was Barrio’s position that such a situation was inappropriate and contrary to the scheme of the Development Act, and additionally, that the Council’s concerns did not give rise to a “special interest”, as provided by s 32(2)(c) of the Act.
In considering the legislative framework, Commissioner Rumsby found that there was nothing which speaks against a local authority, where it is not the relevant planning authority, being joined to proceedings. It was held that it could serve the Court’s and the wider community’s interest in having the Council’s contribution if it could be shown:

  1. that the Council had an important contribution to make and that its case was materially different from that of the Commission; and
  2. that the Council could conduct itself in a manner which did not unnecessarily protract the proceedings.

The Commissioner determined to join the Council to the appeal.
The Council’s decision to seek to be joined to the appeal was effectively a decision of the elected members (Councilors). Of particular concern to Barrio, the internal advice of Council staff did not support some of the grounds sought to be raised by the Council in the proceedings, including traffic.
The case raises real concerns about the potential for the development approval process to be frustrated by the involvement and decisions of Councilors with no planning qualifications or expertise.
For further information on this decision, please call Tom Game on 8212 9777.