DISTRICT COUNCIL OF MALLALA v JOHN JAMES BISHOP AND JANET MARTHA BISHOP No. SCGRG-97-1002 Judgment No. 6340 Number of pages - 11 Local government [1997] SASC 6340 - SASC 1997 case summary

DISTRICT COUNCIL OF MALLALA v JOHN JAMES BISHOP AND JANET MARTHA BISHOP No. SCGRG-97-1002 Judgment No. 6340 Number of pages - 11 Local government [1997] SASC 6340 - SASC 1997 case summary — Zoe

[33]

I recognise that it is highly desirable that applications for development consent should be expeditiously determined and I have no desire unnecessarily to increase the time involved in or the cost of processing planning applications. But it is important that, when dealing with an appeal against an assessment that a proposed development is a non-complying development, the ERD Court proceed no further than deciding the question whether the proposed development is a non-complying development. If that issue is resolved in an appellant's favour, the application should be remitted to the relevant planning authority to deal with it in accordance with the procedures prescribed in the Development Act and Regulations. The reason lies in the fact that, notwithstanding that the development is not a non-complying use, it might, nevertheless, be a development of a kind which requires that notice should be given in accordance with s38 of the Act. Those to whom notice is given may wish to make representations objecting to the proposal. Depending on the result, they may be entitled to appeal or to be joined as parties in any appeal: see s38 of the Act and Pitt v Environment Resources & Development Court (1995) 66 SASR 274. In this case neighbours had complained to the Council about the nature of the activities being conducted on the land by the respondents. Even if the proposed development was to be classified as a store for the purposes of the business, the Council was required to give notice of the proposal as a Category 3 development under s38 of the Act because the shed was not to be used as a farm building and, it would seem, was not regarded by the Council as a development of a minor nature: see paras 2(1)(d) and (f) of Schedule 9 of the Development Regulations. In addition, as the Commissioner found, the use of the land for storage purposes was not incidental to the domestic use of the land. On receipt of that notice, the neighbours might wish to lodge representations objecting to the proposal. Thus, by proceeding in this way, the ERD Court has denied those neighbours the right to object and the right to be heard on any appeal. The terms of s33 of the Environment Resources & Development Court Act, 1993 do not authorise the procedure which the Commissioner adopted. That section is intended to deal with irregularities which have occurred in dealing with the subject matter of the appeal. It does not authorise the Court to depart from the required procedures in determining appeals of this kind and so deny persons affected by the proposal the right to object to the proposed development. Thus, the proceedings before the Commissioner mis-carried in a serious way. I will return to that issue.

[55]

The Commissioner also erred in permitting Mr Doherty to argue the case for the respondents in the alternative. For the reasons which follow, it is contrary to the scheme and purpose of the Development Act and Regulations to permit an applicant for development consent to submit an application for alternative developments. Section 32 of the Development Act provides that no development may be undertaken unless the development is an approved development. Sections 84 and 85 of the Act provide a scheme by which to prevent the use of land for a purpose for which development consent has not been obtained. The scheme of the Act and Regulations is that the application is the means by which the applicant informs not only the relevant planning authority of the nature of the proposed development, but also informs any person who may be affected by the development and who might be entitled to object if the proposal is for a development for which notice must be given under s38. To that end, s39 of the Act requires the applicant to lodge an application in the prescribed form and to provide all other information required by the Regulations. If a planning authority has to assess a proposed development against a Development Plan, it must determine the nature of the development: Reg 16. For example, a planning authority might have to determine whether what is proposed is a complying or non-complying development. Thus, an applicant for development consent should clearly state the nature of the intended development. The prescribed form requires a description of the proposed development. It is for these reasons that an applicant cannot make the application in the alternative. This conclusion is reinforced by the fact that potential objectors have the right to inspect an application. If an application is made in the alternative, a person who might be affected by the proposal will not know what is intended. He will not be sure whether or not to make representations objecting to the proposal. Similarly, a planning authority will not know whether the proposal is for a complying or non-complying development. I adopt the observations of Tadgell J in Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413 at 419 which, although expressed in a slightly different context, are nevertheless apposite:

DISTRICT COUNCIL OF MALLALA v JOHN JAMES BISHOP AND JANET MARTHA BISHOP No. SCGRG-97-1002 Judgment No. 6340 Number of pages - 11 Local government [1997] SASC 6340

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Judgment (60 paragraphs)

DISTRICT COUNCIL OF MALLALA v JOHN JAMES BISHOP AND JANET MARTHA BISHOP No. SCGRG-97-1002 Judgment No. 6340 Number of pages - 11 Local government [1997] SASC 6340 (28 August 1997)

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Legislation Cited (6)

Cases Cited (5)