Merits appeals cover the situation where someone is unhappy with a relevant authority's decision to approve (or refuse) a development application. This type of appeal seeks an order of the Environment Resources and Development Court (ERD 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.

An applicant for a 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 [see Planning, Development and Infrastructure Act 2016 (SA) s 201]. The appeal must be instituted within 2 months after the applicant receives notice of the decision. The ERD Court has a discretion to extend this time limit in special circumstances [s 204].

There is also a right of appeal against any assessment, request, decision, direction or act of a relevant authority under the Act that is relevant to any aspect of the determination of the application or in relation to the development authorisation [s 201].

A third party (a person other than an applicant or a relevant authority) who has submitted a written representation on a proposed impact assessed (restricted) 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. An appeal by a third party must be commenced within 15 business days after the date of the decision [s 110(7)]. It may take the relevant authority 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 15 business day appeal period. The ERD 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 9as does the relevant authority which made the decision appealed against) [s 110(8)]. Where a third party appeals, the development cannot proceed until the appeal is dismissed, struck out or withdrawn or the questions raised by the appeal finally determined by the ERD Court [s 110(9)]. Most appeals are first dealt with at a preliminary conference of the ERD Court before being listed for trial. Most development disputes are resolved at or prior to the preliminary conference.

Under the Environment, Resources and Development Court Act 1993 (SA), the ERD Court may allow parties to participate in a hearing by means of telephone or video link if the circumstances are appropriate [s 35A].

If it appears that a relevant authority has made a mistake in categorising the development (eg. accepted development instead of code assessed development) a person who is an owner or occupier of land on or adjoining the site of the proposed development can institute proceedings in the ERD Court to have the issue of categorisation determined [Planning, Development and Infrastructure Act 2016 (SA) s 202(1)(g)]. Such proceedings must be instituted within 2 months after the landowner or occupier receives notice of the council’s decision on the proposed development [s 204(1)]. The ERD Court has discretion to extend this time limit in special circumstances. If successful, the process of development assessment would need to be started again, with the appropriate level of public notification undertaken where necessary.

No one has a right of appeal on the merits of the decision relating to a development declared by the Minister as impact assessed development [s 115(10)].