Extensions of Consent Not Simply a Rubber Stamp Event
In the recent decision of Paul & Anor v The Corporation of the City of Marion  SASC 3, the Supreme Court dismissed an appeal against the decision of a Commissioner of the ERD Court to dismiss an appeal against a refusal to extend the operative period of a Development Plan consent.
Mr and Ms Paul obtained Development Plan consent on 19 March 2019 for four two-storey dwellings at South Plympton. At the relevant time, regulation 48 of the Development Regulations 2008 (Regulations) provided that a Development Plan consent would lapse 12 months from the operative date of the consent. Therefore the subject Development Plan consent would lapse on 19 March 2020.
On 10 March 2020, Mr and Ms Paul requested that the City of Marion extend the Development Plan consent, arguing that it was not “economically viable at this time” to attempt to advance any consents required to undertake any approved development of the dwellings.
Relevantly, the Development Plan changed in a material way in August 2019 and that the Council refused to grant an extension of time. That refusal was appealed to the ERD Court. In the ERD Court Commissioner Rumsby dismissed the appeal and stated:
“In all of the circumstances, having considered the relevant factors in the context of the change to the Development Plan, the appellants have failed to demonstrate the requisite commitment to the project as is expected in these proceedings. For these reasons, and also the change to the applicable Development Plan provisions in this matter, the appeal is dismissed.”
The Appellants filed 12 varied grounds of appeal in the Supreme Court. They argued that the exercise of the discretion simply required that there be a balancing of the prejudice to an applicant caused by the refusal of an extension against the prejudice to the public interest.
His Honour Justice Parker did not accept this argument as it did not recognise the significance attached to the diligence in which the applicant had pursued the development. It was the view of the Supreme Court that if the applicant had “sat on their hands” without good reason, this would weigh heavily against the grant of an extension where there had been significant change to the planning regime.
The Supreme Court dismissed all grounds of appeal and endorsed the approach the Commissioner took when considering the matter in the ERD Court.
The Council had also argued that the original approval was tainted by a procedural error in that the appellants intentionally failed to disclose their true intention to locate two of the proposed dwellings on Torrens titled allotments, thereby resulting in semi-detached dwellings, rather than a residential flat building, and a corresponding higher minimum allotment size. The Council argued that this factor weighed against granting the extension of time. However, given the Court dismissed all grounds of appeal raised by the appellants, there was no need to determine this issue and His Honour Justice Parker declined to do so.
This decision highlights the importance of considering an applicant’s diligence when determining an extension of time request. The need for this is heightened due to the recent amendment to Regulation 48 to extend operative the date of a consent or approval (under part 4 of the Development Act 1993) to two years rather than 12 months. An applicant will need to show evidence of diligence over this extended timeframe. This may make it practically harder to sustain viable arguments that an extension is warranted before a consent or approval lapses.
Further, this case makes it clear that it is not appropriate to assume that an application for an extension of time will be automatically granted. A Council will always need to weigh up the appropriate relevant factors in each case when considering whether to exercise its discretion to grant an extension of time.
For more information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@Normans.com.au