Return to business as usual for joinder applications!

The Court of Appeal decision of Moloney v 21-25 South Esplanade Pty Ltd & Ors [2024] SASCA 58 handed down last month, has restored the longstanding test for the joinder of parties to Environment, Resources and Development Court (ERD Court) proceedings.

The Development and ERD Court Appeal

The developer, 21-25 South Esplanade Pty Ltd, had sought planning consent to construct an apartment building in Glenelg which was proposed to rise more than 45 metres and 13 storeys, and would require the demolition of two heritage listed dwellings. The development was publicly notified and various parties, including Mr Moloney, either made submissions to, or lodged representations with, the State Commission Assessment Panel (SCAP).

The SCAP refused planning consent in June 2021 and the developer subsequently appealed this decision to the ERD Court. However, prior to instituting this appeal, the developer had lodged a revised “compromise” scheme reducing the maximum height of the apartment building to 10 storeys.

Several parties, who were Category 2 representors applied to be joined to the ERD Court appeal, prior to the SCAP communicating an offer to the developer to resolve the ERD Court appeal on the basis of the revised proposal.

Following two conferences, the joinder applications were heard and granted by the ERD Court. In making its decision the ERD Court considered and applied the principles for the determination of joinder applications established in Pitt v Environment, Resources and Development Court (1995) 66 SASR 274 (Pitt) and O’Neill v Kimhi [2008] SASC 109 (O’Neill)

The developer appealed the joinder decision to a single judge of the Supreme Court.

The Supreme Court Appeal – Joinder

The appeal judge set aside the joinder orders, determining that none of the Category 2 representors had a direct or material interest in the appeal, and relied principally upon the existence of a compromise to distinguish the cases of Pitt and O’Neill form this one.

This decision was appealed by Mr Moloney to the Court of Appeal.

The Court of Appeal Decision – Joinder

The Court of Appeal allowed the appeal setting aside the orders of the Supreme Court and restoring the orders of the ERD Court, in effect re-joining the parties to the ERD Court appeal. It found that the required “special interest” referred to in section 88(2)(c) of the Development Act 1993 (now section 205(2)(c) of the Planning, Development and Infrastructure Act 2016) should not be constrained as the Judge at first instance had suggested.

The Court of Appeal held that the principles espoused in Pitt and O’Neill remain applicable to determining joinder applications. Therefore, the considerations relevant to the joinder of a party fundamentally are:

• that the joinder applicant has a special interest in the matter and that ‘the special interest of an adjoining owner will be readily demonstrated where the proposed development is likely to have a materially deleterious, and not merely trivial, impact on the amenity and value of the adjoining owner’s property’;
• the contribution the joinder applicant may have on the resolution of the issues before the ERD Court;

• whether the joinder applicant’s views are already represented by an existing party;

• the impact of joinder upon the proceedings;
• the existence of a compromise;

• the prior involvement of the joinder applicant in the development application; and
• the interests of justice.

The Court of Appeal further held that the ERD Court is no mere “rubber stamp” in respect of a compromise brought to it by the parties. The ERD Court is not bound to record a settlement reached at conference and in all cases will not make any order unless it is empowered and considers it appropriate to do so.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au or Stephan Koefer on +61 8 8217 1368 or skoefer@normans.com.au.