Botten Levinson Lawyers – Adelaide

Terra Group Pty Ltd v PAE and Bunnings Group Ltd – “seriously at variance” decisions can be reviewed in ERD Court review proceedings

The Environment, Resources and Development Court recently handed down its judgment in Terra Group Pty Ltd v City of Port Adelaide Enfield & Anor [2015] SAERDC 26.
The case can be accessed here:
The proceedings concerned an application for Court review, taken under section 86(1)(f) of the Development Act. The applicant, Terra Group, sought to challenge the decision of the City of Port Adelaide Enfield that a development of a “Bunnings Warehouse” by Bunnings Group Limited was not “seriously at variance” with the Council’s Development Plan.
Some five years earlier, the ERD Court had decided that a relevant authority’s decision as to whether or not a development was “seriously at variance” was not susceptible to review by the Court in proceedings brought under section 86(1)(f). However, in the Terra Group case, His Honour Judge Costello departed from the Court’s earlier decision.
The effect of His Honour’s judgment is that a review of whether a development is “seriously at variance” with the Development Plan can be decided in ERD Court review proceedings taken under section 86(1)(f) of the Development Act 1993.
Previously it was thought that these matters had to go to the Supreme Court.
This broadens the range of challenges that may be taken in the ERD Court by an owner or occupier of land adjacent to a development.
Importantly, such challenges can occur after consent has been granted and can result in any consent or approval for a development being quashed by the Court.
However, the Court in the Terra Group case also found that the scope of the Court review on the “seriously at variance” issue is limited. The Court will not allow a full re-hearing of the planning merits of the original decision as it does in a planning appeal. Instead, the Court will limit itself in Court review proceedings, to deciding challenges based on any procedural errors that formed the basis of the “seriously at variance” decision.
For further information about the ERD Court’s judgment in the Terra Group case, please contact Tom Crompton on 8212 9777 or