This guide sets out how members of the public can use the Environment Resources and Development Court if they are unhappy with a decision made by a Council, or the Development Assessment Commission under the Development Act 1993. It is also possible to apply to the Court, for certain orders restraining someone’s conduct which is in breach of the Act. This is known as “civil enforcement”.
Throughout this guide, various legal terms are used. The “Act” means the Development Act 1993, and the “Regulations” means the Development Regulations 2008.
What is the ERD Court?
The Environment, Resources and Development (ERD) Court is a specialist Court created to deal with issues that arise under environment and planning legislation. The Court tends to deal mainly with development issues, but it also deals with native title, heritage, environment protection and other related issues.
The Court is made up of Judges and Commissioners. Judges are legally trained whilst Commissioners are experts in fields such as local government, environment protection, urban planning and heritage. Matters can be dealt with by just one Commissioner, or a judge, or by the full bench (usually a Judge and two Commissioners). Normally, a full bench hears matters which raise a number of complex issues and legal points.
The Court is designed so as to simplify its procedures, to save expense to the parties and to reduce formality.
Types of legal action
There are different types of actions under the Development Act that can be brought in the Court:
These are a method of challenging a decision, for example of a local council, and to have it reexamined by the Court. Appeals can also challenge the categorisation of a development for public notification purposes. The Court can consider all the relevant information put before the original decision-maker, plus any other additional relevant information.
These are orders made by the Court which restrain a person from, or direct a person to, undertake certain activities. These orders do not involve “punishment” in a criminal sense, however if the person disobeys the order, they may become liable to some form of punishment.
These do involve punishment, and result in a criminal record for a guilty person. Generally speaking the relevant planning Authorities, or the Police, will bring criminal prosecutions to the [INCOMPLETE SENTENCE – I assume they end of the sentence is “to the ERD Court”.]
Who has a right to appeal or apply for an order?
Individuals have rights to appeal decisions, or to apply for orders under several different sections of the Development Act. Most decisions can only be appealed within certain time limits which are fairly strictly enforced. Some of the most important of these are summarised below:
|Section of Act||Issue||Time Limit for appeal|
|S. 38||“Third party appeals”|
You can appeal against the approval of a development (eg by a local council) if you were officially notified of the development and you made a written submission against it.
|Within 15 business days of the decision.|
|S. 86||“Applicant appeals” |
You can appeal if you have been refused “provisional development plan consent” or you object to the conditions attached to that consent or categorisation
|Within 2 months of the decision|
|S. 85||“Civil enforcement” |
You can apply for an order to “restrain”
|Within 3 years of the breach or later with the authorization|
How to start an appeal
Notice of appeal
The first step is to notify the Court in writing, stating the following details;
- the land or building concerned,
- the Authority who made the decision you want to challenge, the particular decision of the Authority,
- the grounds or reasons for your appeal,
- your full name and address, telephone number and fax number,
- whether you are objecting to someone else’s development, or refusal for your own development.
Once you have written this notice, you must sign it and deliver it to the Registry of the court, where you will pay the filing fee.
If you are appealing a decision to refuse consent for your development, you must give the authority who made the decision a copy of your notice of appeal within 3 business days of filing it at the Registry.
Getting involved in someone else’s appeal
If you were given notice of a development under Section 38 of the Act, and you have been advised by the Registrar of the Court that you may take part in an appeal, (lodged by the applicant against a development refusal or conditions attached to a development approval) to participate in that appeal, you must apply to the Court to be “joined as a party” to the appeal. To do this you must write to the Court within 7 business days of being given the notice, requesting to be joined as a party to the appeal.
If you want the Court to make an order enforcing compliance with the Act or restraining a breach of the Act, you must apply in writing to the Court setting out full details about yourself, the land, the other parties involved etc. You also need a supporting statement in the form of an “affidavit” which sets out the details of your complaint. It is important to get this documentation right. The Court staff or the EDO will be able to help you with your application.
How to serve documents
It is an important principle of our law that people have a right to full information about legal cases that they are involved in. This means ensuring that all parties are given copies of Court documents and sufficient time to respond to them.
Documents that need to be “served” on another party, such as Summonses, and Notices of Appeal, must be served in particular ways. It is generally safest to personally deliver the documents to the person, company, department or Council involved. You can post them or in some cases even fax them, however you should seek advice before doing this.
What you want to avoid is the situation where the other parties deny having received all the correct documentation. This can occur if you incorrectly serve the documents or deliver them to the wrong address. Some companies for example may have dozens of addresses and you need to know which is the registered or principal office.
Once you have served the document, you must prove that you have done so by an affidavit containing the time, date and place of service, the name of the person you served and the way you served the documents on them ( by post, or fax or personally). In other words you need to show enough facts to prove that the person you served was the person who was supposed to be served with the documents.
|For more information: |
A copy of the Development Plan for your area can be obtained from your local council or inspected at the Conservation Centre, Level 1 157 Franklin Street, Adelaide, during office hours (ph: 82235155). It is also available from Planning SA , 136 North Terrace Adelaide ph 8303 0600 or go to www.planning.sa.gov.au
Copies of the Development Act and the Development Regulations (and other SA legislation) are available from Service SA , 108 North Tce Adelaide ( ph: 13 2324 ) or go to www.shop.service.sa.gov.au.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.