Merits appeals cover the situation where someone is unhappy with a decision to approve (or reject) a development application. This type of appeal seeks an order of the Environment Resources and Development Court to overturn or alter that decision. These actions are limited to certain types of development and qualifications exist as to who is entitled to appeal.
Whether or not you have a right to appeal against a development approval depends on whether you are the applicant or a third party (such as a neighbour). It also depends on the categorisation of the development. Only Category 3 developments (including most non-complying developments) can be appealed by third parties. An applicant for development authorisation has a right to appeal to the ERD Court against a refusal to grant development approval or against any conditions attached to that approval. The appeal must be instituted within two months after the applicant receives notice of the decision. The court has a discretion to extend this time limit in special circumstances.
In addition, an applicant also has a right of appeal against any other assessment, request, decision, direction or act of a relevant authority under the Act in relation to the development authorisation.
Where a development is non-complying, there is usually no appeal against a refusal of consent, concurrence or a condition attached to a consent. Some exceptions to this rule cover situations where the proposed development has become necessary either by reason of a change in the law regulating an existing use of land or generally by reason of an order with respect to the safety or condition of the building.
A third party (a person other than an applicant or a relevant authority) who makes a written representation on a proposed Category 3 development has a right to appeal against that decision or any conditions attached to it. A person who disagrees with a decision of a relevant authority, but who has not taken the opportunity to lodge a written representation during the public comment period is not entitled to appeal. It is not necessary to make a verbal representation before lodging an appeal.
An appeal by a third party must be commenced within fifteen business days after the date of the decision in the application. Often it takes local councils a week or more to notify representors of the decision, however it is the date of the decision, not the date of notification which starts the fifteen day appeal period. The court must then notify the applicant for development approval that the appeal has been lodged and that person automatically becomes a party to the appeal, as does the relevant authority which made the decision appealed against.
Where a third party appeals, the development cannot proceed until the appeal is dismissed, struck out or withdrawn or the questions raised by the appeal finally determined by the Court. Most appeals are first dealt with at a preliminary conference of the Court before being listed for trial. Most development disputes are resolved at or prior to the preliminary conference.
If it appears that a local council has made a mistake in categorising the development ( eg Category 2 instead of Category 3 ) a person who is an owner or occupier of land adjoining the site of the proposed development can institute proceedings in the Environment Resources and Development Court to have the issue of categorisation determined. Such proceedings must be instituted within two months after the landowner or occupier receives notice of the council’s decision on the proposed development. The court has a discretion to extend this time limit in special circumstances. If successful the process of assessment would need to be started again with the appropriate level of public notification.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.