Third-party appeal rights

ERD Court clarifies the scope of third-party appeal rights under the PDI Act 2016

On 16 December 2022, the Environment, Resources and Development Court (ERD Court) handed down its decision in Rossi v City of Holdfast Bay Assessment Panel & Anor [2022] SAERDC 18.  Importantly, the Court clarified the scope of third-party appeal rights pursuant to s 202(1)(g) of the Planning, Development and Infrastructure Act 2016 (PDI Act).

DesignTech Studio had applied for development approval for renovations and additions to an existing building at Brighton. The application was performance assessed and publicly notifiable. Mr Rossi, the owner of land adjacent the development site, made a representation opposing the development. Following amendments to the proposal, the City of Holdfast Bay Assessment Panel granted planning consent to the development.

Mr Rossi sought to challenge the planning consent in the ERD Court on the basis that he was not given another opportunity to make a representation on the amended proposal and that the Council should have found that the proposed development was seriously at variance with the Planning and Design Code. Mr Rossi relied upon s 202(1)(g) of the PDI Act which enables an owner or occupier of adjacent land to apply to the Court for a review of a matter.

The Court held that the scope of s 202(1)(g) of the PDI Act did not grant power to the Court to review:

  1. A Council’s decision that amended plans do not constitute a substantial variation of the original application so as to warrant re-notification of the application; nor
  2. A Council’s decision about whether a development is “seriously at variance”.

This was because neither of these decisions went towards the “nature” of the development for purposes of s 202(1)(g). The former also was not a decision to which s 202(1)(g) applied.

The Court adopted a limited interpretation of the third-party appeal rights pursuant to s 202(1)(g) of the PDI Act, remarking at paragraph [76] that “one of the purposes of the PDI Act was to limit third party rights of review.”

The appeal was dismissed.

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