Time to commence ERD Court review proceedings – Hoff v City of Mitcham

The Full Court of the South Australian Supreme Court recently delivered its decision in Hoff v City of Mitcham and Ors [2016] SASCFC 3.
The Supreme Court  was asked to decide whether the time limit in the Development Act 1993 for taking review proceedings to challenge development pursuant to section 86(1)(f) of the Act, runs from the date the categorisation decision is made, or from the final determination of the planning consent.
Mr and Mrs Hoff received notification of a proposed Category 2 development to which they made a representation. Following the grant of planning consent by the Council, Mr and Mrs Hoff lodged a review in the ERD Court and sought to argue that the application should have been treated as Category 3 and that the consent granted by the Council should be quashed.
Section 86(1)(f) provides rights of review to the ERD Court against decisions by a relevant planning authority about the nature of a development, including its classification and its categorisation for public notification purposes.
The Supreme Court ruled that these “preliminary” determinations of planning authorities are reviewable administrative decisions made pursuant to the Act.  The statutory time period to take s 86(1)(f) review proceedings therefore commences when a person is given notice about the relevant “preliminary” decision, and not at the later time when the related planning consent is granted.
The Full Supreme Court agreed with the ERD Court that as Mr and Mrs Hoff’s review application on the public notification category was commenced well beyond the statutory two month period after they received notice of the public notification decision, their review (appeal) ought to be dismissed.
The Supreme Court also recognised that the final decision granting a planning consent will often be granted prior to the determination of any s 86(1)(f) review proceedings about the nature or category of a particular development.  The Supreme Court reaffirmed that the ERD Court has the power to set aside a planning consent granted in those circumstances, i.e., if any review proceedings on the nature or category of development are ultimately successful.
Given the Supreme Court’s decision in Hoff, developers and landowners alike ought to be aware that statutory time periods will start running from the date that the relevant “notice” is received regarding these “preliminary determinations” on the nature or category of a development.  That notice might be formal (i.e., an express written letter from a planning authority) or informal (constructive) notice.
Although the ERD Court has the power to grant extensions of time, third parties seeking to challenge preliminary decisions of planning authorities cannot sit back and await the outcome of the merits of an application before commencing section 86(1)(f) review proceedings.
For further information about the Supreme Court’s judgment in Hoff, please contact James Levinson or Tom Crompton on 8212 9777 or email tlc@bllawyers.com.au.