The importance of maintaining the development application register
In September 2018 Coober Pedy Roadhouse Pty Ltd, the plaintiff, commenced judicial review proceedings in the Supreme Court against the District Council of Coober Pedy and companies related to the Stuart Range Outback Resort. The proceedings related to the decision by the Council to grant Development Plan consent (DPC) in January 2018 to a proposal to expand the Resort to include a petrol filling station.
The proceedings were commenced approximately two months beyond the six month time frame allowed for in the Supreme Court Civil Rules 2006 to take such proceedings and the plaintiff therefore had to seek permission to proceed and an extension of time from the Court, which was ultimately granted (judgment here).
The grounds for review alleged that:
- the decision to grant DPC was invalid;
- the Council erred in determining (or failing to determine) that the proposed development was not seriously at variance with the Development Plan;
- the application should have been assessed as non-complying and category 3 (rather than category 1), as it included both a shop and an office of greater than 50 square metres, which were non-complying in the zone;
- the conditions of DPC were invalid and could not be severed;
- the delegate who granted DPC lacked delegated authority; and
- the decision of the delegate was invalid due to a reasonable apprehension of bias
These issues were not canvassed at length for the purpose of the extension of time argument but will be argued should the matter proceed to hearing.
Extension of time factors
It was accepted by all parties (including the Court) that there are four factors that are relevant when considering an extension of time, namely: the length of the delay; the reason for the delay; the prospects of success; and any prejudice suffered by the respondent.
Length and reasons for delay
Much of the evidence and submissions in the hearing considered these two factors, which the Court held were inextricably linked. Notwithstanding the Council granting DPC in January 2018, the plaintiff claim that it was not until August 2018 that it became reasonable for them to believe that DPC had been granted. As it was a category 1 development application, the plaintiffs relied on the Council in informing itself as to whether DPC had been granted. It did this primarily through inspecting the development application register and FOI applications.
In relation to the register, it was accepted that the online version of the development application register was not up-to-date (as required by regulation 98(3a) of the Development Regulations 2008) when the plaintiff’s solicitors first checked to see if DPC had been granted in June 2018. It was the Council’s evidence that the development application register had been kept up-to-date at all relevant times, but that an unknown error occurred during 2018 such that an earlier version of the register appeared on its website which did not record that DPC had been granted. The online register was only updated to show that DPC had been granted to the application after the proceedings had been filed.
In relation to the FOI applications, two of the directors of the plaintiff inspected the development application documents in March 2018. Whilst the Court accepted that a copy of the DPC was on the development application file that was inspected, the Court found that those inspecting did not notice it during the inspection. The Court was ultimately unwilling to regard the failure to observe the DPC on the DA file as constructive notice to the plaintiff, given that at that stage the plaintiff had not been advised that DPC had been granted and that it reasonably suspected that the Council would have advised it of such.
In late June 2018 the plaintiff was advised by an elected member as well as the Council’s planning consultant that DPC had been granted. It was at this stage that the Court found that the plaintiff was in possession of such information to raise a real doubt as to the reliability of the online DA register. Notwithstanding this, the plaintiff did not pursue this vigorously and it was only on 10 August 2018 that they obtained a copy of the DPC. Whilst the Court found that this could have been obtained earlier it stated:
“However, in assessing the significance of the delay, and weighing that against the other relevant considerations, it is appropriate to give considerable weight to the fact that…the plaintiff, relied on the incorrect information published by the Council due to its failure to update its website as required by reg 98”
Prejudice to the defendants
Stuart Range submitted it would suffer substantial prejudice if an extension of time was granted and submitted evidence about this including costs incurred from 30 June 2014. The Court however did not consider any expenditure prior to the granting of DPC could be taken into account in the assessment of prejudice, much of which could, in any event, be reused as a part of a fresh development application if the DPC was quashed.
Prospects of success
Both the Council and Stuart Range accepted that the plaintiffs had an arguable case. This however was not a sufficient basis, of itself, to grant an extension of time, but it was an important consideration. The Court accepted the Council’s submission that this was a “run-of-the-mill” planning case, but proceeded to undertake a preliminary assessment of the plaintiff’s case.
The importance of a DA Register
This case emphasises the important function that a development application register serves, particularly in the case of category 1 development where it can sometimes be the only source of information on an application. It is important that Council staff ensure that all information required by regulation 98 is kept on the register and that there are procedures to ensure the information is updated at appropriate times. Further, it is important that the online version of the register is updated within a reasonable time (or at the same time) after the register is updated.