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DA Application · South Australia

Guide 5 of 5 · Who can challenge it

Reviews and appeals of a South Australian development decision

Section 202 of the Act lists who may challenge a decision and where. The applicant has the most routes; anyone else has far fewer, and an appeal against the decision itself only on the restricted layer.

The six pathways, top to bottom. Read for this page: who can challenge it

  1. Impact assessedimpact assessed
    No one, on PlanSA’s table, where the Minister assesses.
  2. Restrictedimpact assessed
    The applicant, and anyone who made a representation: appeal to the ERD Court. A refusal to proceed goes to the Commission only.
  3. Performance assessedcode assessed
    The applicant: panel review where an assessment manager decided, or the Court. Owners or occupiers of the site or adjacent land: the category only.
  4. Deemed-to-satisfycode assessed
    The applicant, on a prescribed matter such as a condition. Owners or occupiers of the site or adjacent land: the category only.
  5. Accepted
    The applicant, on a prescribed matter. Owners or occupiers of the site or adjacent land: the category only.
  6. Exempt
    No approval is needed.

A third party’s appeal against the decision itself exists only on the restricted layer.

An applicant can challenge a decision on their application, by asking the assessment panel to review it where an assessment manager decided, or by appealing to the Environment, Resources and Development Court. Anyone else can appeal against the decision itself only for restricted development, and only if they are entitled to notice of it because they made a representation. For accepted and code assessed development, an owner or occupier of the site or of adjacent land can ask the Court to review only the category the development was put in.

General informationThis guide describes the review and appeal rights in the Act and on PlanSA. It is not legal advice about any decision, and time limits run from dates in each case. PlanSA’s decisions and appeals page and the Act are the official places to check.

The routes, and their time limits

PlanSA says the avenues depend on the category of development and on who assessed the application. Section 202(1) of the Act lists them; these are the ones that touch a development application.

Who may challenge what, where, and by when, under the Act
WhoAgainstGoes toTime limit
The applicant, where an assessment manager for a panel decidedA prescribed matterThe assessment panel, for review1 month after receiving notice of the decision, unless the panel allows more
The applicant, in any caseA prescribed matterThe Court, on appeal2 months after receiving notice of the decision, unless the Court allows more
The applicant, after a panel reviewThe panel’s decision on reviewThe Court, on appealThe same 2-month rule
A person who made a representation on restricted developmentThe Commission’s decisionThe Court, on appeal15 business days after the date of the decision
An owner or occupier of the site or adjacent land who can show an interestThe decision on the category of accepted or code assessed developmentThe Court, for reviewThe general rule in section 204(1)
The applicant for restricted development refused without assessmentThe delegate’s refusal to proceedThe Commission itself, for review; no appeal to the Court1 month after receiving notice, unless the Commission allows more

A prescribed matter, in section 201, is any assessment, request, decision, direction or act of a relevant authority relevant to deciding the application, a refusal, or the conditions imposed. PlanSA puts it simply: an appeal can be about a refusal, an approval or consent, or a condition.

The applicant’s two doors

Where the application went to an assessment manager acting as the relevant authority, the applicant may ask the relevant assessment panel to review the decision, or go straight to the ERD Court. An applicant who is unhappy with the panel’s review may still appeal to the Court. In every other case the route is an appeal to the Court.

On a review, the panel may adopt whatever procedure it thinks fit and is not bound by the rules of evidence. The assessment manager must give it the application documents and a report on request. The panel may affirm the decision, vary it, or set it aside and substitute its own.

Third parties: restricted development only

Among the routes section 202(1) sets out in its own words, the right someone other than the applicant has to appeal against the decision on a development is in paragraph (d):

“a person who is entitled to be given a notice of a decision under section 110(6) in respect of development classified as restricted development by the Planning and Design Code may appeal to the Court against the decision”

Section 202(1)(d)

The people entitled to that notice are those who made a representation to the Commission, and they must start an appeal within 15 business days after the date of the decision. The Court tells the applicant, who becomes a party. Where representations were made, the Commission’s decision does not operate until the time for such an appeal has passed or, if one is started, until it is dismissed, struck out, withdrawn or finally decided.

Section 202(1) also covers an owner’s appeal against a local heritage designation, disputes about the Building Rules or a party wall (referred to building referees where that is the only matter), and any proceedings the regulations authorise.

The category review

For accepted and code assessed development, an owner or occupier of the site or of adjacent land who can show an interest in the matter may ask the Court to review the decision about the nature of the development: which category it was put in. It does not limit the applicant’s own right of appeal.

Impact assessed by the Minister

PlanSA’s table of who can appeal lists no one for development the Minister assesses, and the Act says no appeal lies against the Minister’s decision under section 115.

Restricted: the refusal to proceed

Acting as the Commission’s delegate, SCAP may refuse a restricted application without assessing it, and the applicant may ask the Commission itself to review that. The applicant has 1 month from receiving notice of the refusal to apply, unless the Commission extends the time. The Commission may affirm SCAP’s decision or send it back with a direction that the application be assessed.

There is no appeal to the ERD Court against the delegate’s refusal to proceed or the Commission’s review. If the application goes on to be assessed, the final decision can be appealed to the Court. For help with restricted development, PlanSA names the Department for Housing and Urban Development’s Commission Assessment team, on 1800 752 664.

At the ERD Court

An application to the Court sets out its grounds, and starts with a conference held under the Environment, Resources and Development Court Act 1993 (section 16), except where it is referred to building referees or the regulations exclude it. Where a decision was made under delegated powers, the respondent is the principal, not the delegate. The Court may confirm, vary or reverse the decision.

PlanSA lists what lodging involves: a notice of appeal form, a copy of the decision, sending both to the Court, and the court fee. The same court hears breaches: when the law is breached, the council or SCAP may ask it to order a person to stop work and put things right, or prosecute the person. A relevant authority’s own application to quash a deemed planning consent is covered in timeframes and deemed consent.

An illustrative example

An assessment manager appointed for a council’s panel refuses a performance assessed application. The applicant may ask that panel to review the refusal within 1 month of notice, or appeal to the Court within 2 months, and may still appeal to the Court after the panel’s review. A neighbour has no appeal against the decision, because the development is not restricted; an owner or occupier of adjacent land who can show an interest could only ask the Court to review the category.

The other guides cover who receives notice and how the pathway is set.