TOWN OF GAWLER ASSESSMENT MANAGER v ANDREA BRUNT [2025] SASC 57

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (HIS HONOUR SENIOR JUDGE DURRANT) [2023] SAERDC 15 Appellant: TOWN OF GAWLER ASSESSMENT MANAGER Counsel: MR M RODER KC WITH MR J RODER - Solicitor: KELLEDY JONES Respondent: ANDREA BRUNT Counsel: MR C MUSCAT - Solicitor: CHARLES MUSCAT Hearing Date/s: 25/03/2025 File No/s: CIV-23-011913 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TOWN OF GAWLER ASSESSMENT MANAGER v BRUNT [2025] SASC 57 Judgment of the Honourable Justice McDonald 1 May 2025 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW ENVIRONMENT AND PLANNING - PLANNING - DEVELOPMENT ASSESSMENT AND CONTROL - APPLICATIONS ENVIRONMENT AND PLANNING - PLANNING - DEVELOPMENT ASSESSMENT AND CONTROL - ASSESSMENT AND CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL This is an appeal against an interlocutory decision of the Senior Judge of the Environment Resources and Development Court (ERD Court), to refuse to grant the appellant an extension of time to commence proceedings under s 125(7) of the Planning, Development and Infrastructure Act 2016 (SA). The appellant brings this appeal pursuant to s 30(1)(a) of the Environment, Resources and Development Court Act 1993 (SA) and r 212.2 of the Uniform Civil Rules 2020 (SA). The matter is the subject of an originating appeal, brought by the respondent heard in the ERD Court (ERD-22-000081) contesting the appellant’s refusal to grant planning and land division consent to the respondent. The appellant subsequently filed an originating application, seeking a declaration that the deemed planning consent was invalid or alternatively an application seeking an extension of time quash the deemed planning consent (ERD-22-000140). The appeal before this Court is in relation to the latter matter. The appellant appeals the decision on 11 separate grounds, which all relate to the basis upon which the Senior Judge refused an extension of time. -- 1 of 36 -- The respondent contends that the decision of the learned Senior Judge was a proper and reasonable exercise of the Senior Judge’s discretion in refusing to extend time for the appellant to commence proceedings to quash the deemed consent. Held; permission to appeal granted. 1. The appeal is allowed. 2. The decision of the Senior Judge to refuse the extension of time to institute proceedings is set aside. 3. This Court is to re-exercise the discretion as to whether an extension of time to commence proceedings to quash the deemed consent should be granted to the appellant. Planning, Development and Infrastructure Act 2016 (SA) ss 48, 119, 102(1)(a), 102(1)(c), 125(1), 125(2), 125(3), 125(6), 125(7); Environment, Resources and Development Court Act 1993 (SA) ss 30(1)(a), 30(2); Development Act 1993 (SA) ss 41(4), 86(1)(a); Planning, Development and Infrastructure (General) Regulations 2017 (SA) regs 31, 53; Uniform Civil Rules 2020 (SA) r 212.2, referred to. Town of Gawler Assessment Manager v Brunt [2023] SAERDC 15; Shahin v Development Assessment Commission [2019] SASCFC 44; House v The King (1936) 55 CLR 499; Hall & Anor v City of Burnside & Ors (No 8) [2008] SASC 318; Cowie v State Electricity Commission of Victoria [1964] VR 788; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied. -- 2 of 36 -- TOWN OF GAWLER ASSESSMENT MANAGER v BRUNT [2025] SASC 57 Civil: Appeal to a Single Judge McDONALD J. 1 This is an appeal of a decision of the Senior Judge of the Environment, Resources and Development Court (ERD Court) to refuse to grant an extension of time to commence proceedings in accordance with s 125(7) of the Planning, Development and Infrastructure Act 2016 (SA) (the PDI Act). The appeal is brought pursuant to s 30(1)(a) of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Act) and r 212.2 of the Uniform Civil Rules 2020 (SA) as it is the appeal of an interlocutory decision of the ERD Court. 2 The appellant is the Town of Gawler Assessment Manager, and the respondent is a member of the public who made an application for planning consent and land division consent. The consents are required in order for the respondent to divide her single allotment into two properties. The appellant was responsible for determining the applications. The appellant did not meet the statutory time frame as set out in the Act, resulting in the respondent being deemed to have been granted planning consent.1 The appellant also failed to meet the time frame prescribed by the Act to apply to the Court for the deemed consent to be quashed. The appellant made an application pursuant to s 125(6) and (7) of the PDI Act for an extension of time to apply for the quashing of the deemed consent. That application was refused, and it is that decision that is the subject of this appeal. The initial development application 3 The relevant series of events commenced on 10 November 2021, when the respondent uploaded a development application onto the SA Planning portal. The application was to turn a single allotment located at 202 Hillier Road, Hillier SA 5116 into two allotments. Although the respondent made the application, the property was owned by her mother. The application sought planning consent and land division consent.2 4 Accompanying the application were details of the proposed subdivision resulting in the 4.849 hectares of property being divided into two 2.424 hectare allotments, and a report prepared by Outhred English Urban and Regional Planners, dated 8 November 2021. The author of the report supported the subdivision, despite it being non-compliant with the requirement of a minimum of 4 hectare allotments in that local area. 1 Planning, Development and Infrastructure Act 2016 (SA) s 125(3). 2 Both planning consent and land division consent were necessary for the subdivision, Planning, Development and Infrastructure Act 2016 (SA) s 102(1)(a) and s 102(1)(c). -- 3 of 36 -- [2025] SASC 57 McDonald J 2 The Legislative Regime 5 On 19 March 2021, the PDI Act replaced the Development Act 1993 (SA).3 Pursuant to s 48 of the PDI Act, the Chief Executive is required to establish and maintain a website for the purposes of the Act (the portal). The portal thereafter enabled online processing and the tracking of development applications. Particularly, the portal was designed to provide users with a countdown function which records the statutory timetable and provides an indication of relevant time frames. 6 Part 7 of the PDI Act sets out the regime for development assessments and approvals. Before any development can be undertaken approval must be granted.4 Pursuant to s 102 of the PDI Act, the respondent requires both planning consent,5 and land division consent.6 7 Section 125 of the PDI Act provides for the time frame in which such applications are to be dealt. Significantly, s 125(1) requires that an application should be dealt with as expeditiously as possible and within the time prescribed by the regulations. 8 The PDI Act places the responsibility on the relevant authority, including the assessment manager, for ensuring that applications are dealt with in a timely fashion. In the event that an application, in respect of the provision of planning consent is not dealt with in the requisite time frame, an applicant can provide the planning authority with a deemed consent notice, stating that planned consent should be granted. If that occurs, the planning authority is, upon receipt of that notice, taken to have granted planning consent.7 It is then for the planning authority, within 10 business days after receiving the deemed consent notice, to either: 1. Grant the planning consent, or 2. Grant the planning consent subject to conditions, or 3. Apply to the Court for an order quashing the deemed consent. 9 There is a mandatory time frame for each of those options. Given the importance of the regime to this appeal, I set out s 125 of the PDI Act in full: 3 The Development Act 1993 (SA) did not contain any deemed consent provisions. Under s 125(2) of the Development Act if this application had not been decided within time, the respondent could have notified a deemed refusal. In that event, she would have been able to appeal the deemed refusal. 4 Planning, Development and Infrastructure Act 2016 (SA) s 101. 5 Ibid s 102(1)(a). 6 Ibid s 102(1)(c). 7 Ibid s 125(3). -- 4 of 36 -- [2025] SASC 57 McDonald J 3 125 – Time within which decision must be made (1) A relevant authority should deal with an application as expeditiously as possible and within the time prescribed by the regulations. (2) If a relevant authority does not decide an application within the time prescribed under subsection (1) in respect of the provision of planning consent, the applicant may, before the application is decided, give the relevant authority a notice in the prescribed manner and form (a deemed consent notice) that states that planning consent should be granted. (3) On the day that the relevant authority receives the deemed consent notice, the relevant authority is, subject to this section, taken to have granted the planning consent (a deemed planning consent). (4) The relevant authority may, within 10 business days after receiving the deemed consent notice— (a) grant the planning consent itself; or (b) grant the planning consent subject to conditions. (5) The deemed planning consent is taken to include— (a) any conditions that a relevant authority imposes under subsection (4)(b); or (b) if the relevant authority does not grant a planning consent under subsection (4)—any standard condition specified by a practice direction issued by the Commission for the purposes of this subsection. (6) If— (a) a deemed planning consent is taken to have been granted under subsection (3); and (b) a relevant authority considers that the relevant application for planning consent should have been refused, the relevant authority may apply to the Court for an order quashing the consent. (7) An application under subsection (6) must be made within 1 month after the deemed planning consent is taken to have been granted unless the Court, in its discretion, allows an extension of time (and then the Court will determine the matter under section 205). (8) If a relevant authority does not decide an application within the time prescribed under subsection (1) in respect of the provision of a development authorisation other than planning consent, the applicant may, after giving the relevant authority 14 days notice in accordance with the regulations, apply to the Court for an order requiring the relevant authority to make its determination within a time fixed by the Court. (9) If the Court makes an order under subsection (8), the Court should also order the relevant authority to pay the applicant’s costs of the proceedings unless the Court is satisfied— -- 5 of 36 -- [2025] SASC 57 McDonald J 4 (a) that the delay is not attributable to an act or omission of the relevant authority; or (b) that the delay is attributable to a decision of the relevant authority not to deal with the application within the relevant time because— (i) it appeared to the relevant authority that there had been a failure to comply with a requirement prescribed by or under this Act; or (ii) the relevant authority was not provided with appropriate documentation or information relevant to making a decision under this Act; or (iii) the relevant authority believed, on other reasonable grounds, that it was not appropriate to decide the matter in the particular circumstances; or (c) that an order for costs should not be made for some other reason. (10) This section does not apply to or in relation to impact assessed development where the Minister is the relevant authority. 10 It is important to note that this is a significant departure from the previous regime under the Development Act 1993 (SA). Under the previous Act, if a relevant authority failed to determine an application within the statutory time frame, an applicant could serve a notice and the planning authority was deemed to have refused the application.8 It was then for the applicant to appeal that decision in the ERD Court. Events subsequent to the uploading of the initial application 11 On 17 November 2021, a week after the application for planning consent and land division had been uploaded, a senior planning officer of the Town of Gawler and delegate of the appellant (the planning officer) sent a request by letter, to the respondent’s surveyor and agent requesting further information with respect to the respondent’s development application. This request was made prior to the appellant verifying the application. On 22 November 2021, by a letter dated 18 November 2021, the respondent’s agent replied to the request for further information. 12 On 25 November 2021, the planning officer wrote to the respondent’s agent advising that the appellant had verified the submission of the application.9 The following day, the respondent paid the applicable development application fees. 13 On 9 January 2022, the planning officer again wrote to the respondent’s agent and advised that based on the current proposal, the council intended to refuse the application. The letter included the following: 8 Development Act 1993 (SA) s 41(4) and s 86(1)(a). 9 Planning, Development and Infrastructure Act 2016 (SA) s 119, and Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 31. -- 6 of 36 -- [2025] SASC 57 McDonald J 5 … Council has considered the information provided by Outhred English Urban and Regional Planners regarding the size of the proposed allotments. Council however disagree with the argument stated and believe that the 4 hectare requirement within the Rural Zone is import (sic) to maintain the character of this area. As such, Council intends to refuse the application. However, you are welcome to provide any further information you see fit which may or may not include an assessment by an Agronomist justifying your land division. Please indicate if you wish to provide further documentation or if you wish for Council to proceed to finalise the application. 14 In a letter dated 11 February 2022, the respondent replied and provided an agronomist’s report. 15 On 17 March 2022, the application was reallocated to a different planning officer to take over consideration of the respondent’s application. His initial task was to conduct a merits assessment against the relevant provisions of the Planning and Design Code. On 28 March 2022, the planning officer telephoned the respondent’s agent and advised that he intended to recommend that the application be refused. He confirmed that position by email later that day. 16 The email summarised the concerns about the proposal, including the size of the subdivided allotments (which was significantly less than the minimum requirement) and the impact that the subdivision would have on the potential for the surrounding land to be used for primary production purposes, given the property was in a Rural Zone. The email concluded:10 … I confirm that all of the additional information has been reviewed and Council has formed the view that the proposal is significantly at variance to the Planning & Design Code and therefore cannot be supported. 17 The time prescribed under s 125(1) of the PDI Act and reg 53 of the Planning, Development and Infrastructure (General) Regulations 2017 (SA) for the determination of the respondent’s application expired as of midnight on 6 April 2022.11 The appellant failed to meet that deadline. Although the appellant foreshadowed an intent to refuse the application in advance of that date the formal refusal did not take place until 7 April 2022. 18 At 8.09 am on 7 April 2022, the planning officer generated and downloaded a Planning Assessment Report on the portal, in order to recommend refusal of the application. At around 9.00 am, the respondent’s agent checked the portal and confirmed that no decision had been uploaded to the portal. He attempted to upload a deemed planning consent notice (the deemed consent notice) at 9.11 am, 10 ERD-22-000140, FDN 4, Affidavit of Gregory Maurice Sproule affirmed on 2 September 2022 at GMS-10. 11 The appellant had 60 business days to make a decision pursuant to s 125 of the Planning, Development and Infrastructure Act 2016 (SA) and reg 53 of the Planning, Development and Infrastructure (General) Regulations 2017 (SA). -- 7 of 36 -- [2025] SASC 57 McDonald J 6 as required under s 125(2), however found no electronic tab suitable for uploading a deemed consent notice. 19 Absent any other option, the respondent’s agent uploaded the deemed consent notice under the “Additional Documents” tab. The deemed consent notice only related to the application for planning consent as s 125 of the PDI Act did not allow for a deemed consent notice for an application for land division. As a consequence of uploading the deemed consent notice in the Additional Documents tab, the portal prompted that an additional document had been uploaded and required review as to whether to accept the document. It also sent emails advising that there was a document that had been uploaded that required review.12 The system automatically prompted the relevant authority (the Council) to ‘review and confirm if the document/s are to be included in the document library’. By clicking ‘yes’, the relevant authority confirms that the document has been accepted and it is placed in the main ‘Documents’ tab for the application. By clicking ‘no’ the document is rejected. The portal record for the notice showed that neither the ‘yes’ or ‘no’ options were actioned at that time, meaning that at that stage it had been neither accepted or rejected.13 20 At 9.31 am on 7 April 2022, the planning officer downloaded and reviewed the deemed consent notice. Between 9.31 am and 9.42 am the planning officer continued to work on his report and the application on the portal. 21 At 9.51 am the appellant received an email from the planning officer confirming that he had completed his assessment. It reads:14 From: Brendan Fewster To: David Bielatowicz CC: Scott Twine Subject: Development application: 21036208 – 202 HILLIER RD HILLIER Date: Thursday, 7 April 2022 9:51:36 AM Attachments: Refusal Stamped Plans.pdf Hi David I have finalised this application this morning. It is recommended for refusal and i [sic] believe refusals require your authorisation. I have noticed that the applicant has commenced the Deemed Consent process as it is out of time. This occurred about 20 minutes ago. Very annoying as i [sic] spoke to him about the concerns and he was going to speak to his client and then contact me to discuss. The deemed consent notice has been uploaded ‘for review’ so we might still be able to issue the refusal. 12 ERD-22-000140, FDN 14, Affidavit of Kevin Burgess affirmed on 27 February 2023 at [9]-[10]. 13 ERD-22-000140, FDN 4, Affidavit of Gregory Maurice Sproule affirmed on 2 September 2022 at GMS-12. 14 ERD-22-000140, FDN 18, Affidavit of David Bielatowicz affirmed on 16 March 2023 at DXB-3. -- 8 of 36 -- [2025] SASC 57 McDonald J 7 I have finalised the reasons for refusal on the portal. All we need to do is stamp the attached plans “refused” and upload and hopefully the decision can be issued. I will call to discuss. BF 22 At 9.58 am the appellant logged into the portal, downloaded the deemed consent notice, and refused to accept it, subsequently issuing the refusal. At that time, it was the appellant’s (mistaken) understanding that deemed planning consents, under s 125 of the Act were not available for applications such as this, because it sought both planning consent and land division consent. 23 Between receiving the email at 9.51 am and refusing the deemed consent notice at 9.58 am the appellant telephoned the Council’s solicitor. The details of that conversation are unknown as privilege was not waived. 24 At 10.01 am on 7 April 2022, the appellant made the decision to refuse the application by endorsing the planning officer’s recommendation for refusal. A decision notification form and reasons for refusal were uploaded to the portal at 10.02 am. When that occurred the portal automatically cancelled the ‘review additional documents’ prompt that had been generated when the deemed consent notice had been uploaded. 25 On 13 May 2022, a letter dated 10 May 2022 was sent by the respondent’s solicitor to the Town of Gawler Chief Executive Officer (the CEO). In that letter the solicitor set out the following: • a deemed consent notice had been uploaded by the respondent at 9.11 am on 7 April 2022; • the Town of Gawler had been taken to have granted planning consent; • if the Town of Gawler considered the application for planning consent should have been refused, its only option had been to apply to the Court to quash it; • the Town of Gawler had, contrary to the Act, uploaded a decision notification after the deemed consent notice had been uploaded, purporting to refuse consent; • the time for an application to the Court to quash the consent had expired; and • the Town of Gawler was invited to ‘revoke its invalid refusal’. 26 The letter was sent to the planning officer and to the general email address for planning at the Town of Gawler. The planning officer forwarded the email to the appellant on 16 May 2022. The appellant read the letter in a perfunctory -- 9 of 36 -- [2025] SASC 57 McDonald J 8 manner and took no further action in relation to it. It was the appellant’s evidence that he intended to seek advice and reply to the respondent’s solicitors, however he overlooked doing so. 27 On 24 May 2022, the respondent emailed an elected member of the Town of Gawler and asked for assistance in light of the lack of response to the 10 May 2022 letter. The email was forwarded by the elected member to the CEO who made enquiries with council staff. 28 Once the letter was escalated to the attention of the elected members and the CEO, under council procedures the response needed to be authorised by the CEO. On 1 June 2022, the CEO responded by email to the respondent and included all of the elected members of the Town of Gawler. The appellant was involved in assisting the CEO prepare the email. During the period over which the response was prepared, the planning officer emailed the appellant offering assistance. That email read:15 From: Brendan Fewster <[email protected]> Sent: Monday, 16 May 2022 8:53 AM CC: David Bielatowicz Subject: FW: ID: 21036208 Development Number: 490/D428/21 202 Hillier Road, Hiller SA 5116 Attachments: 2136-Gawler council ltr_Brunt 10.5.22[1].pdf Hi David Do you require any assistance in responding to this letter? They completely stuffed up the deemed consent. The application was refused, simple as that. Regards, Brendan Fewster Principal Consultant 29 The appellant instructed the planning officer to prepare a draft letter of response to the respondent’s solicitor. 30 The draft was reviewed by the council’s solicitors and internally circulated by the assessment manager. The draft letter was not in evidence. A draft email from the CEO to elected members was prepared based on the draft letter. The draft email was also not in evidence. 31 The email sent by the CEO on 1 June 2022 was relatively lengthy. It set out the history in relation to the respondent’s application for subdivision and the effect of some of the recent legislative changes. It noted “[t]he approval as issued by the applicant (to his/her own development) in this case is not considered valid. It is noted that the applicant has a right to appeal the matter directly to the 15 Ibid at DXB-6. -- 10 of 36 -- [2025] SASC 57 McDonald J 9 ERD Court”.16 In explaining how the relevant events unfolded, the email contained two inaccuracies or mistakes. It stated:17 The Council delegate [the planning officer] then proceeded to make a decision on the application with a planning assessment report generated on the portal at precisely 8:09am on 7 April 2022. This report provided an assessment of the proposal against the Code and includes the reasons as to why the application was being refused. The assessment was finalised shortly thereafter, and a decision notice was uploaded to the portal at precisely 10:02am by the Assessment Manager [the appellant]. (Emphasis added; underlining in original) 32 The email arguably conveyed the position that the decision to refuse had been made “at precisely 8:09am on 7 April 2022”. However, only the appellant could refuse the application and that did not occur until 10.02 am.18 The second mistake was made in the following paragraph: At the same time (unknown to council) the applicant proceeded to upload a deemed consent which was incorrectly uploaded to the portal as an “additional document” and not as a decision in accordance with section 125(2) of the PDI Act and therefore was not considered a valid consent. (Emphasis added) 33 That was clearly not correct as the planning officer had known of the notice at that time and had passed that information on to the appellant. 34 I will return to the significance of these errors when I come to consider the reasons of the Senior Judge. Proceedings in the ERD Court 35 On 9 June 2022, the respondent filed an Originating Appeal in the ERD Court (ERD-22-000081 (81)). The respondent appealed the refusal to grant planning consent and land division consent.19 In addition (or in the alternative) the respondent appealed the decision in relation to the deemed planning consent notice. The respondent sought orders that: 1. The decision of the Assessment Manager at Town of Gawler dated 7 April 2022 be quashed. 2. That the Deemed Planning Consent dated 7 April 2022 be declared the valid consent for DA21036208. 16 Ibid at DXB-7. 17 Ibid. 18 This passage is open to an alternative interpretation that the first decision referred to was that of the planning officer as opposed to the ultimate decision on the application. For current purposes I will proceed upon the interpretation relied upon by the Senior Judge. 19 FDN 1. -- 11 of 36 -- [2025] SASC 57 McDonald J 10 36 The appeal was initially opposed by the appellant on the basis that the deemed consent had not been validly uploaded and therefore had not been effective. 37 The respondent’s appeal first came before the ERD Court on 15 July 2022, for a conciliation conference. The conference was adjourned until 18 August 2022 and then administratively adjourned until 15 September 2022. For reasons that are not clear, the conference did not proceed on that date. 38 On 9 September 2022, the appellant filed an originating application (ERD 22-000140 (140)) in the ERD Court. The application was for “a declaration that a purported Deemed Planning Consent is invalid or in the alternative orders quashing the Purported Deemed Planning Consent Notice allegedly granted pursuant to section 125(3) of the Planning, Development and Infrastructure Act 2016 on 7 April 2022”.20 39 The application was made under s 125(6) and s 125(7) of the PDI Act. As the application was brought out of time, the appellant filed an interlocutory application seeking an extension of time.21 It was the appellant’s uncontested evidence that the application to quash the deemed consent was instituted as soon as it became apparent that the conciliation process would not result in a compromise. 40 On 13 October 2022, both applications 81 and 140 were listed for a directions hearing before the Senior Judge. 41 On 28 October 2022, the Senior Judge made an order to list application 140 for a half day hearing on 6 March 2023, for submissions on whether the appellant’s application for an extension of time to apply to quash the deemed consent should be granted. 42 It is apparent from the transcript of that hearing, that as of that date the appellant was maintaining that the deemed consent notice was not valid on the basis that it had not been lodged in the prescribed manner and form.22 It followed that, from their perspective, although out of time, a valid refusal had been lodged by the appellant. 43 It was the appellant’s position that although there was not a valid deemed consent notice, to preserve their position it was necessary to make an application pursuant to s 125(6)(b) of the PDI Act to quash the deemed consent. As the application to quash the deemed consent was out of time,23 it was necessary for the appellant to make an application for an extension of time. 20 ERD-22-000140, FDN 1. 21 Ibid, FDN 2, filed on 9 September 2022. 22 6 March 2023 T8. 23 Planning, Development and Infrastructure Act 2016 (SA) s 125(7). -- 12 of 36 -- [2025] SASC 57 McDonald J 11 44 During the hearing, the Senior Judge raised concerns about the approach the appellant was taking and asked rhetorically “how can you press your application for an extension of time if you deny that there’s planning consent?”.24 That was because pursuant to s 125(6)(a) before an application could be made to quash a consent, a deemed planning consent must have been taken to have been granted. The Senior Judge expressed the tentative view that, absent a concession by the appellant, that there was a valid deemed consent, there was no basis to grant an extension of time, even if he was minded to do so. 45 At the end of the hearing the Senior Judge sent the matter back for further conciliation and listed the matter for a further hearing on 21 March 2023, at which it was anticipated that evidence would be called. 46 Although it is not clear as to precisely when, at some time after that hearing, the appellant came to the view that contrary to the belief held earlier, the respondent’s deemed consent notice had in fact been effective and valid. 47 For reasons that are not important, the hearing did not proceed on 21 March 2023, but was ultimately rescheduled on 25 July 2023. It is apparent from the transcript of these proceedings, that by this time the appellant had come to accept that the respondent had a valid deemed consent notice. Factual findings made by the Senior Judge 48 The appellant gave evidence at the hearing on 25 July 2023. It is apparent from the reasons of the Senior Judge that he made a number of factual findings based on the appellant’s evidence, in the context of the other evidence and materials before the Court. Relevantly, to the determination of the issues on the application, his Honour found: • The appellant was a senior employee of the Town of Gawler and a very experienced town planner. He had the benefit of internal town planning advice and solicitors with expertise in planning law.25 • The appellant and his planning officer knew the clock had been ticking and that they had to deal with the respondent’s application by 6 April 2022. The appellant was aware of the importance of meeting legislative timelines.26 • The appellant had not dealt with a deemed consent before. He had however, received extensive training from PlanSA about the availability of deemed consent notices and the operation of the portal. Informed by that training and guidance documents, the appellant 24 ERD-22-00140, 6 March 2023 T31. 25 Town of Gawler Assessment Manager v Brunt [2023] SAERDC 15 (‘Reasons’) at [85]. 26 Ibid at [88]. -- 13 of 36 -- [2025] SASC 57 McDonald J 12 understood that deemed consents were not available for land division applications.27 • In his training, the appellant had been told by PlanSA, that deemed consents were not available for applications for land division or joint applications for planning consent and land division. That was also (erroneously) the expressed position in materials provided by PlanSA.28 • The appellant had also been taught by PlanSA that the portal “worked consistently with” the PDI Act and that he should rely on the accuracy of the portal in undertaking the processes in development assessments as required by the PDI Act.29 • The appellant understood that a compliant deemed consent notice would result in an automatic consent and reset the clock for 10 days, that being the timeline for the appellant to grant consent or grant consent subject to conditions.30 • Absent automatic consent, the appellant considered that the deemed consent notice had not been properly uploaded. He thought that because the deemed consent notice had been uploaded for “review” there remained a window of opportunity to refuse approval.31 • The appellant rang the solicitors for the Town of Gawler between 9.51 and 9.58 am.32 • At 9.59am, the appellant manually rejected the deemed consent and then uploaded the notification refusing the development application. The appellant’s “mindset reflected the risk that [the respondent] had been entitled to a deemed consent and his desire to refuse her application quickly”.33 • Other than uploading the notification of the appellant’s decision, neither the appellant nor his planning officers communicated with the respondent or her advisers any further.34 • Sometime after the respondent’s appeal had been instituted, the appellant came to the view that the deemed consent notice had in fact been effective and valid. Further, based on advice, he became aware 27 Ibid at [26]. 28 Ibid at [78]. 29 Ibid at [27]. 30 Ibid at [29]. 31 Ibid at [31]. 32 Ibid at [32]. 33 Ibid at [33]-[34]. 34 Ibid at [35]. -- 14 of 36 -- [2025] SASC 57 McDonald J 13 that any application to quash that consent should have been made within one month of the deemed consent.35 • Based on legal advice, the appellant decided to take no action to quash the consent until it became clear to him that a settlement could not be reached with the respondent.36 • There was a single conference before a Commissioner in respect of the appeal, on 15 July 2022. That was adjourned and without being reconvened was vacated on 12 September 2022.37 • The appellant filed his appeal on 9 September 2022.38 The decision to refuse an extension of time 49 The Senior Judge delivered his decision on 29 September 2023, refusing the application for an extension of time for the appellant to apply to the Court for an order quashing the deemed consent notice. 50 In his reasons, the Senior Judge accepted that by the inclusion of a discretion to extend time under s 125(7) of the PDI Act, Parliament had recognised that there would be occasions on which the interests of justice warranted the Council being granted additional time to apply to quash a deemed consent.39 In terms of the approach to be adopted in determining whether to exercise that discretion, his Honour said:40 Parliament has recognised the risk of inadvertence by planning authorities and enacted a process and fixed timelines to allow conditions to be imposed or applications to set aside to be brought promptly. At issue is whether, in the circumstances, this court should in its discretion extend time to bring this application to set aside the deemed consent outside of the one-month period fixed by Parliament. In determining this application, I must give effect to the ordinary meaning of the statute in the wider statutory context and with reference to its purpose. (Footnotes omitted) 51 It was agreed by the parties that the Senior Judge applied the correct test and identified the relevant considerations in considering the merits of the application. These were the length of the delay, the reasons for the delay, whether prejudice 35 Ibid at [47]-[48]. 36 Ibid at [49]. 37 Ibid at [50]. 38 Ibid at [51]. 39 Ibid at [67]. 40 Ibid at [67]-[69]. -- 15 of 36 -- [2025] SASC 57 McDonald J 14 would be suffered by any person, whether there is an arguable case and the public interest. 52 Counsel for the respondent however, placed a caveat on that submission, contending that the Court should not necessarily weigh these various matters in the same manner in which it ordinarily would, in circumstances in which the appellant, who is the party who holds the power as the decision maker, caused the delay. 53 The Senior Judge gave separate consideration to each of the matters to be considered under the test. Length of the delay 54 As to the length of the delay, the action was issued over four months late. There was no dispute that the delay was significant, and the Senior Judge expressed the view that absent good reason, the Court should be reluctant to grant an extension of such length. The appellant did not attempt to dissuade the Senior Judge from this approach. Explanation for the delay 55 In considering the explanation for the delay, the Senior Judge divided the reasons provided for the delay into two parts. Firstly, the period during which the appellant believed the deemed consent notice was invalid, and to those thereafter. 56 The appellant’s evidence was, that before he came to understand that the notice was valid, he believed on reasonable grounds that no deemed consent had been available and that the notice had been ineffective. He founded the reasonableness of his belief on the statutory regime having only been in place for 12 months, having not previously dealt with a deemed consent, being unusually busy, having relied on what he was taught in his PlanSA training, and having relied on the instructions of PlanSA to trust the portal to work in accordance with the Act. 57 The explanation provided by the appellant for the delay after he became aware that the deemed consent was valid, was based on the ongoing conciliation process. It was the appellant’s evidence that he had received legal advice to the effect that as he and the respondent were still involved in a conciliation process, it was reasonable to hold off instituting proceedings in order to avoid an unnecessary multiplicity of actions. 58 In considering the explanation provided by the appellant, the Senior Judge observed that s 125 of the PDI Act is a straightforward provision. Section 125 clearly required the appellant to deal with the application within the prescribed time otherwise the respondent had an entitlement to deemed consent. 59 The Senior Judge also found the experience and seniority of the appellant to be a relevant consideration. He was a senior employee of the Town of Gawler; he was the relevant authority empowered to deal with the application and he had the -- 16 of 36 -- [2025] SASC 57 McDonald J 15 benefit of internal town planning advice and solicitors with expertise in planning law. The appellant had been aware of the importance of legislative timelines and he and his planning officer knew that the clock had been ticking and that they had to deal with the application by 6 April 2022. Further, the regime for deemed consent represented a significant change in processes, such that it was incumbent upon the appellant to give proper consideration to the PDI Act and not just place reliance on what he was told by PlanSA. 60 In his reasons, the Senior Judge found that in all of the circumstances it was unreasonable for the appellant to rely on Plan SA and its portal in the manner that he did. In considering the explanation provided by the appellant, the Senior Judge said “[h]is singular reliance on the mistaken view of PlanSA was not reasonable in those circumstances; busy or not”. The Senior Judge did not provide any further reasons for why he found this to be unreasonable, other than to make the observation that the appellant was an experienced professional.41 61 The Senior Judge was also critical of the appellant’s reliance on the fact that the portal had not automatically processed a deemed consent, in support of his belief that no deemed consent was available. His Honour suggested that the uploading of the deemed consent notice into the additional documents tab, and the fact that the automatic processing of the deemed consent had not occurred, should have caused the appellant some “pause for thought”. The Senior Judge went on to make the observation that in any event, the appellant’s level of trust in the infallibility of the portal was not what he would expect, given the appellant’s experience and expertise. 62 In those circumstances the Senior Judge found that the appellant’s reliance on the mistaken view of PlanSA and the portal was not reasonable, regardless of how busy he was over that period of time. 63 In considering the reasonableness of the appellant’s explanation for the delay prior to realising that the deemed consent was valid, the Senior Judge also took into account the failure by the appellant to reply to the letter received by the respondent’s solicitor and his failure to keep his CEO fully informed. 64 As to the solicitor’s letter, the Senior Judge expressed the view that had the appellant properly considered the letter, he “would have benefitted from the clear and correct expression of both fact and law it contained”.42 65 The Senior Judge also found that the appellant had omitted to inform his CEO that he had known of the deemed refusal notice, rejected it and had used the window of opportunity presented to refuse the development application.43 The Senior Judge found that this omission in the appellant’s communication with his CEO was significant. It had resulted in a series of errors which had the potential 41 Ibid at [99]. 42 Ibid at [105]. 43 Ibid at [108]. -- 17 of 36 -- [2025] SASC 57 McDonald J 16 to be misleading in the email from the CEO, which necessarily flowed from the information provided by the appellant. 66 The Senior Judge expressed the view that the failure to respond to the respondent’s solicitor, the failure of the appellant to inform his CEO that he had known about the deemed consent notice before he refused the application, and the errors in the email to the elected members and the respondent, were important matters in his assessment of the reasons for and circumstances of the delay by the appellant. 67 As to the delay subsequent to coming to the view that the deemed consent notice was valid, the Senior Judge suggested that the appellant had overstated the position in claiming that at that time the parties were involved in “an active, court supervised conciliation process”.44 His Honour observed that there had been a single conference before a Commissioner on 15 July 2022. The record of outcome for the conference recorded that a preliminary jurisdictional point had arisen. The conference was adjourned and never reconvened. Prejudice suffered 68 The Senior Judge made the following finding as to prejudice:45 Ms Brunt has had to litigate both as she would have under the replaced Act and under this Act. Given the delay in acceptance by the Assessment Manager the deemed consent was valid, and the expiry of the time legislated to apply to set aside consent, she has had to both appeal a refusal and respond to this application to extend time. She had suffered delay, had incurred cost, and also been left in an uncertain position. Whether there is an arguable case 69 The Senior Judge accepted that there was a proper basis for the appellant to have refused consent and acknowledged that maintaining the integrity of the planning regime is an important consideration. Conclusion of the Senior Judge 70 Having considered the various relevant matters, the Senior Judge expressed his conclusion in the following terms:46 The length of the delay is significant and the reasons for and circumstances of that delay do not weigh in favour of an extension being granted. Further, Ms Brunt has suffered prejudice by way of delay and cost. Against that, there is a basis upon which planning consent could be refused. I have balanced all those matters in my consideration. 44 Ibid at [121]. 45 Ibid at [131]-[132]. 46 Ibid at [135]-[137]. -- 18 of 36 -- [2025] SASC 57 McDonald J 17 Having done so, I exercise my discretion to refuse to extend the time to bring these proceedings; the delay in all the circumstances is too great. The application to extend time is refused. Grounds of appeal 71 In instituting these proceedings, the appellant relies on the following grounds of appeal: 1. That the learned Senior Judge erred at [131] – [132] in finding that granting an extension of time to commence the proceedings would prejudice the Respondent without evidence and in the absence of any specific prejudice erred in finding that granting an extension of time to commence the proceedings would prejudice the Respondent without any evidence of specific prejudice. 2. That the learned Senior Judge erred in failing to consider the extent of prejudice, if any, attributable to the delay in commencing the proceedings after the expiry of the statutory time limit to commence proceedings. 3. That the learned Senior Judge erred in failing to consider or give legally adequate reasons to address the Appellant’s contentions after the statutory time limit being participation in the Environment, Resources and Development Court’s conference process under section 16 of the Environment, Resources and Development Court Act 1993 (ERD Court Act) and avoid a multiplicity of proceedings. 4. That the learned Senior Judge erred at [122] in taking into account and relying upon records of outcome in conferences held pursuant to section 16 of the ERD Court Act without the consent of all parties to the proceedings contrary to section 16(8) of the ERD Court Act. 5. That the learned Senior Judge erred in failing to afford the parties procedural fairness in having regard to the records of outcome in respect of conciliation conferences held under section 16 of the ERD Court Act in circumstances where the Appellant was barred from leading evidence in respect of those conferences. 6. That the learned Senior Judge’s conclusion at [86] in finding that the Appellant’s reliance on what His Honour described as the mistaken view of PlanSA was unreasonable having regard to: 6.1. the extent of training the Appellant had received from PlanSA; 6.2. the published materials from PlanSA; 6.3. that the Appellant or his employer had not had to deal with a deemed consent under section 125 of the Act prior to the consent the subject of the proceedings; 6.4. the absence of judicial or other consideration of the new legislative scheme under s 125 of the Act; and 6.5. that the Applicant’s failure to commence the proceedings within the statutory time limit was a genuine error by the Appellant that there was no deemed consent to challenge. -- 19 of 36 -- [2025] SASC 57 McDonald J 18 7. That the learned Senior Judge erred at [102] in finding that the Appellant had “received” a deemed consent notice for the purposes of s 125(3) of the Act without finding whether the Respondent had given the notice in the prescribed manner and form in accordance with s 125(2) of the Act. 8. That the learned Senior Judge erred in failing to take into account or consider in considering the reasons for delay that the Appellant did not consider the deemed consent notice valid by reason of lack of compliance with section 125(2) of the Act and regulation 54(2)(a) of the Planning, Development and Infrastructure (General) Regulations 2017 (the Regulations) in that the Appellant had formed the view that the deemed consent notice had not been uploaded in the prescribed manner in accordance with any requirements under Part 4, Division 2 of the Act. 9. That the learned Senior Judge erred at [107] to [111] by taking into account an irrelevant consideration as to communications between the Appellant and the Chief Executive Officer of the Town of Gawler and that the learned Senior Judge’s findings that the Appellant did not give ‘his CEO’ ‘the full picture’ were unreasonable. 10. That the learned Senior Judge erred in failing to give due weight to the public interest in the granting or refusal of the Appellant’s application. 11. The refusal of the learned Senior Judge to extend the time for the Appellant to commence proceedings was not reasonably open to the learned Senior Judge having regard to: 11.1. that the proceedings were not commenced within the statutory time limit by reason of genuine mistake as to the Appellant as to the existence of a deemed consent; 11.2. that the Respondent was always on notice that it was not accepted by the Appellant that the Respondent had the benefit of a deemed consent; 11.3. the Appellant and Respondent’s participation in a conciliation process with respect to the alleged deemed consent; 11.4. the absence of any evidence of prejudice of any kind or prejudice attributable to the delay; and 11.5. the public interest. 72 Although there are 11 separate grounds of appeal, there is a degree of overlap, and they all are underpinned by a complaint that the Senior Judge erred in the exercise of his discretion to refuse the application for an extension of time. Permission to appeal 73 This appeal is brought pursuant to s 30(1) of the ERD Act and r 212.2 of the Uniform Civil Rules 2020 (SA) as it is an appeal of an interlocutory decision of the ERD Court. Section 30(2) of the ERD Act only allows for an appeal on a question of fact with the permission of the Court however, an appeal lies of right on a question of law. -- 20 of 36 -- [2025] SASC 57 McDonald J 19 74 The Full Court held in Shahin v Development Assessment Commission that the permission requirement:47 … reflects the well-established principle that this Court on appeal recognises the specialist nature of the jurisdiction exercised by the Environment Court and will accord appropriate respect to its decisions insofar as they involve the exercise of planning judgment. 75 Both questions of fact and law are to be found across the various grounds of appeal. However, given the interconnections and overlap between the various grounds, insofar as is necessary, I grant permission to appeal. Principles to be applied in determining the appeal 76 This is an appeal by way of rehearing. This Court must conduct an independent review of the evidence that was before the Senior Judge and his reasons in order to decide whether the correct determination was made. The appeal against the exercise by the Senior Judge of his discretion must be determined in accordance with the principles stated by the High Court in House v King.48 It does not matter that this Court might have come to a different decision, if it had been in the position of the Senior Judge. It is necessary for the appellant to establish that in exercising the discretion, the Senior Judge made a process error or, alternatively that an outcome error has occurred. 77 A process error will have occurred if the Senior Judge acts upon a wrong principle, has taken into account irrelevant matters, has mistaken the facts or has failed to take into account a relevant consideration. An outcome error will be established if a process error has not been identified but, nevertheless, this Court is satisfied that the result is so unreasonable or plainly unjust that it may be inferred that there was a failure to exercise the discretion properly. 78 In arriving at my decision in this matter I have remained cognisant of the fact that the Senior Judge is a Judge with a vast amount of experience in the ERD Court and its jurisdiction. As a consequence, I have placed considerable weight on the Senior Judge’s findings of fact and his observations and conclusions. However, as is apparent from my decision on this appeal, I cannot avoid the conclusion that his Honour made the errors that I will come to. 79 The appellant contends that the decision of the Senior Judge is infected by both process and outcome errors. It is convenient to start with what are said to be the process errors. 80 In submissions, rather than addressing the individual grounds of appeal, counsel dealt with the various purported process errors grouped together under a number of headings that encapsulated the nature of the complaint. It is convenient to adopt a similar approach. 47 [2019] SASCFC 44 at [21]. 48 (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 21 of 36 -- [2025] SASC 57 McDonald J 20 Consideration of the length of delay 81 The appellant did not resile in the ERD Court, or this Court, from a concession that a delay of four months is a significant delay. 82 It is both the fact of delay, and the consequences of the delay, that are the relevant factors in determining whether the interests of justice are served by granting an extension of time. In Hall & Anor v City of Burnside & Ors (No 8),49 Kourakis J (as his Honour then was) discussed the reason that the length of the delay is a relevant consideration in determining whether to exercise the discretion to grant an extension of time. His Honour said:50 Where a statute or a statutory instrument limits the time within which to institute proceedings or to take a step in an action, it commonly confers a discretion on a court to extend that time. It is well accepted that subject to an express provision to the contrary, the length of the delay of a party in instituting an action or taking a step in an action is relevant to the exercise of that discretion. It appears to me that there are two reasons why that is so. The first is that the length of delay is a measure of the applicant’s fault. The second is that the degree of prejudice suffered by the innocent party is likely to be greater where the delay is longer. Although the length of the delay may, in itself, without reference to fault or prejudice, have some weight, it is unlikely to be substantial. If it be accepted that one of the reasons that the length of the delay is a material consideration is (sic) its capacity to cause prejudice, then it appears to me that the extent to which the prejudice is directly related to the delay is in itself a relevant consideration. The point I make can be simply illustrated. A delay of just one day after a three year limitation period might, in the ordinary course, be regarded as trivial and would not militate against an extension of time because the degree of fault is minor. However, if important evidence was lost in that day, then the strength of the case for an extension would be substantially weakened, precisely because the loss of the evidence is directly related to the delay. On the other hand, if the same evidence were lost in the first day after the date on which the action could have been brought, then the loss of that evidence would not weigh as strongly against extending the time within which to proceed. 83 It follows that any explanation for the delay is a relevant consideration in that it may diminish or increase the level of fault to be attributed to the party attempting to institute proceedings. Consideration of the explanation for the delay 84 The appellant put forward an explanation for the delay. The evidence relied upon by the appellant was accepted by the Senior Judge51 however, his Honour found that the explanation was inadequate given the length of the delay. 85 It is the appellant’s submission that the Senior Judge failed to take into account and properly consider the appellant’s explanation for the length of the 49 [2008] SASC 318. 50 Ibid at [69]-[70]. 51 Reasons at [126]. -- 22 of 36 -- [2025] SASC 57 McDonald J 21 delay. Additionally, it is contended that the Senior Judge provided inadequate reasons as to the use that his Honour made of the appellant’s explanation. 86 As the explanation for the length of the delay is multi-faceted and is addressed across a number of the grounds of appeal, it is convenient to divide it into the events prior to 7 April 2022, the events between 10 May 2022 (when the letter was sent by the respondent’s solicitor) and 9 June 2022; and the events subsequent to 9 June 2022. The events prior to 7 April 2022 87 It was the appellant’s evidence that up until the hearing that took place on 25 July 2023, the only deemed consent that he or any other member of the council had been required to deal with was that lodged by appellant.52 88 Prior to the events of 7 April 2022, the appellant had been provided with a significant amount of training and information about the new processes for the determination of planning applications and consents. 89 The appellant summarised the nature of that training:53 During the roll out of the Act, Planning and Design Code and SA Planning Portal I underwent significant training as offered by the South Australia Planning Commission and PLUS. I estimate that I attended a dozen, if not more sessions. During that training I was taught and understood that the SA Planning Portal worked consistently with the Act. We were taught to rely on the accuracy of the Portal in undertaking our processes in development assessments as required by the Act. At the time, I did not understand that the SA Planning Portal could be incorrect. I understood that because the SA Planning Portal permitted me to refuse consent on the proposed development that I was lawfully permitted to do so. Arising from these proceedings I now understand that the SA Planning Portal is inconsistent with the Act in some matters (such as deemed planning consents for combined planning and land division applications). 90 In submissions, in this Court, the appellant’s counsel emphasised the nature and extent of the training provided. He said:54 You need to understand it was the assessment manager’s evidence not simply that there was this literature, the assessment manager’s evidence was that in the introduction of the new system there were extensive training sessions provided by the State to assessment managers and the like and that he had been told this in his training and he’d also been told that effectively the portal would give you the answer as to whether or not something had been validly done and that things couldn’t be done inconsistently with the portal. 91 It was the appellant’s evidence that at the relevant time, it was his understanding that deemed planning consents were not available for the type of application made by the respondent as it sought both planning and land division 52 25 July 2023 T7-8. 53 ERD-22-000140, FDN 18, Affidavit of David Bielatowicz affirmed on 16 March 2023 at [13]-[14]. 54 25 March 2024 T15. -- 23 of 36 -- [2025] SASC 57 McDonald J 22 consent. That understanding was informed by the training sessions provided by the State Government that he had attended and the guidance documentation from the State Planning Commission and the State Government Agency then known as Planning and Land Use Services or “PLUS”.55 There was evidence that there was a document available on the portal entitled “How to Serve a Deemed Consent Notice”,56 which expressly stated “A ‘Deemed Consent Notice’ cannot be served on an Impact Assessed development, Building Consent, Planning and Land Division Consent or Land Division Consent”.57 92 Also available on the portal was a document described as a “Guide for the Relevant Authorities - Respond to Deemed Consent”58 which also stated that a deemed planning consent will not be available for a planning and land division applications. 93 As part of the training, and as confirmed in the guidance documentation, the appellant understood that when a deemed consent notice is uploaded to the portal, in circumstances in which the portal recognises that an applicant is entitled to serve a deemed notice, there would be a particular screen that would appear on the portal that would trigger an automatic consent and that the clock would be reset to 10 days to reflect the time available to the appellant to respond. This did not occur when the respondent lodged the deemed consent notice. The events between 7 April 2022 and 13 May 2022 94 It was the appellant’s evidence that the events of the 7 April 2022 confirmed his mistaken beliefs about the operation of the new system, such that he maintained the view that no deemed consent had been available, and the deemed consent notice had been ineffective. 95 The appellant was first made aware of the developments in this matter at 9.51 am when he received the email from the planning officer. The email put him on notice that the respondent had “commenced the deemed consent process”, and that given that it had been uploaded for review, it may still be open to “issue the refusal”. The recommendation for refusal was forwarded with the email for the appellant’s endorsement. 96 The appellant then telephoned the Council’s solicitor. As I have mentioned, the appellant elected not to waive privilege over that conversation. I pause there to make an observation about whether that has an impact on the appellant’s evidence. 97 The appellant was entitled to decline to waive privilege, however that limits what can be made of the appellant’s evidence that legal advice was sought. Before the Senior Judge, counsel for the appellant contended that the inference could be 55 ERD-22-000140, FDN 18, Affidavit of David Bielatowicz affirmed on 16 March 2023 at [8]. 56 Ibid at DXB-4. 57 Ibid. 58 Ibid at DXB-5. -- 24 of 36 -- [2025] SASC 57 McDonald J 23 drawn that the appellant’s subsequent conduct was in accordance with the legal advice. The Senior Judge was correct in declining to draw that inference in circumstances in which privilege had not been waived. 98 Based on the fact that the telephone call took place between the receipt of the email and the appellant refusing to accept the deemed consent notice, I am however prepared to draw the inference that the conversation related to the respondent’s application, and in particular the deemed consent notice. That does not mean that any conclusion can be drawn about what was said during the conversation, but rather, the evidence can only go so far as to suggest that the appellant was not being cavalier in his attitude towards the application, and was adopting a considered approach. 99 At the time of these events, based on his training and understanding of how the portal operated, the appellant “firmly believed”59 that the deemed consent notice uploaded by the respondent to the “additional documents” tab on the portal was not valid or operative, as it allowed the appellant to review the notice and refuse to accept it. The appellant explained that it was his understanding that the portal operated such that once a deemed consent was correctly uploaded and accepted it was not possible for a refusal to be issued. 100 This also accorded with the appellant’s understanding that a deemed consent notice was not available for a combined planning and land division application. He explained that he believed that this was because of the land division component.60 His view that there had been no valid deemed consent was reinforced by the fact that the 10-day clock had not been triggered, as he would have expected.61 101 It was the appellant’s evidence that this remained his state of mind at the time when he received the letter from the respondent’s solicitor on 13 May 2022. 102 In circumstances in which this was the only deemed consent notice that the appellant and the Town of Gawler had ever received, including up until the time of the proceedings before the Senior Judge, in my view it would have in fact been surprising for the appellant to go behind the extensive training and written guidance with which he had been provided. Further, the fact that the portal was not responding in the manner expected in the event of a valid deemed consent, would have reinforced the appellant’s belief that there remained the opportunity to refuse consent. 103 It is also a relevant consideration that there was no challenge to the appellant’s account about his state of mind over the relevant period of time. Absent a suggestion that his evidence was lacking in candour on this topic, then it must be accepted that it was a bonafide mistake on the part of the appellant. The very sort 59 Ibid at [15]. 60 25 July 2023 T20-21. 61 Ibid T23-24. -- 25 of 36 -- [2025] SASC 57 McDonald J 24 of mistake that would have been in the contemplation of Parliament in leaving open a discretion in the Court to grant an extension of time. 104 Having reviewed the submissions and the appellant’s evidence, which was largely uncontested, I find that grounds 6 and 8 have been made out. It was not reasonably open on the evidence for the Senior Judge to conclude that “[the appellant’s] singular reliance on the mistaken view of PlanSA was not reasonable in those circumstances; busy or not”. The events between 13 May 2022 and 19 June 2022 105 The events falling between 13 May 2022 and 19 July 2022 can be divided into two topics; the letter sent by respondent’s solicitor on 13 May 2022 and the subsequent involvement of the CEO. Each requires separate consideration. The letter sent by the respondent’s solicitor on 13 May 2022 106 The next relevant event in the sequence was the receipt of the letter from the respondent’s solicitor on 13 May 2022. The letter was dated 10 May 2022, which would suggest the letter was drafted within three business days after the relevant period in which the appellant could make an application to quash the deemed planning consent. 107 Although the letter was received by the planning officer on 13 May 2022, it was not forwarded to the appellant until 16 May 2022. As previously mentioned, although the appellant read the letter in a cursory fashion, he failed to take any further action. The explanation for that failure was the heavy workload that the appellant was experiencing at that time. That explanation should also be considered in the context that at the time the appellant believed that the deemed consent notice was not “valid, operative or effective”.62 It was the appellant’s belief that the decision to refuse the application was the only operative decision, which no doubt impacted on the priority that was given to the letter. 108 Whilst I agree with the observation of the Senior Judge that had the applicant more carefully considered the letter, “he would have benefitted from the clear and correct expression of both fact and law that it contained”,63 it would have still been against the backdrop of the appellant continuing to hold the view that there had been no valid deemed consent. From the appellant’s perspective, there had been a valid refusal and that refusal had been “on the books” for a month with no appeal instituted in relation to the decision to refuse the application.64 It was only on receipt of that letter that the Council was in any way put on notice that there was some dispute about its refusal, and by that time the period in which to apply to quash the deemed consent notice had passed. The appellant’s counsel submitted:65 62 ERD-22-000140, FDN 18, Affidavit of David Bielatowicz affirmed on 16 March 2023 at [15]. 63 Reasons at [105]. 64 6 March 2023 T42. 65 25 March 2024 T21. -- 26 of 36 -- [2025] SASC 57 McDonald J 25 … in one respect too late and an extension is already required and we’ve been told it’s going to be vigorously opposed, up until that time, there’s no contest at all that the assessment manager believed that he is granted a refusal. It would have been, with the greatest of respect, likely impossible but if not impossible absurd for the assessment manager who had received no notice of any challenge to his own refusal to somehow seek an extension of time against a deemed consent which would be a document which he had not recognised and instead had granted the refusal which the portal had allowed him to. It just would have been literally absurd for him to bring a proceeding. 109 I accept that the failure to properly read, consider and respond to the letter, which would have potentially led to effective engagement with the respondent’s solicitor, contributed to the delay in instituting the application to quash the deemed notice of consent. In determining the weight to be placed on this factor, the appellant’s state of mind at that time is a relevant consideration. Put simply, the appellant believed he was right, that there had been a valid refusal, and the respondent believed that she was right, that there had been a valid deemed consent. Although it transpires that the appellant was wrong, there was no deliberate delay in the institution of proceedings. The involvement of the CEO 110 As mentioned on 24 May 2022, the respondent emailed an elected member of the Council. That led to the series of events culminating in the email that was sent by the CEO to the respondent and the elected members of the Council on 1 June 2022. 111 The Senior Judge appears to have placed significant weight on this aspect of the chronology. In his judgment his Honour set out the relevant events:66 Preparation of CEO email following elected member contact The Assessment Manager then spoke to the planning officer and lawyers about it. He instructed the planning officer to prepare a draft letter of response to the solicitor for Ms Brunt. The draft was reviewed by the council’s solicitors and circulated by the Assessment Manager internally. The draft letter is not in evidence. A draft email from the CEO to elected members was prepared based on the draft letter. No draft of that email is in evidence. At no time did the Assessment Manager report to the CEO or elected members he had known of the deemed consent notice before refusal. CEO email to elected members and Ms Brunt The CEO, on 1 June 2022, emailed elected members (cc Ms Brunt and the Assessment Manager). He reported he had been briefed and said: 66 Reasons at [39]-[42]. -- 27 of 36 -- [2025] SASC 57 McDonald J 26 • ‘The Council delegate… proceeded to make a decision on the application with a planning assessment report generated on the portal at precisely 8.09am on 7 April 2022’; • the ‘decision notice was uploaded to the portal at precisely 10.02am’ on 7 April 2022, by the Assessment Manager; • ‘At the same time (unknown to council) [Ms Brunt] proceeded to upload a deemed consent which was incorrectly uploaded to the portal as an “additional document” and not a decision in accordance with section 125(2) and therefore was not considered a valid consent’; • any deemed consent issued by Council, would need to be appealed to the ERD Court to quash such a consent; and • a response would be sent to the solicitors for Ms Brunt within 48 hours. (Footnotes omitted) 112 It was contended by the appellant that the Senior Judge should conclude that “the Assessment Manager did not properly consider or appreciate what had happened and what was important, and that was reasonable in the circumstances and explained his delay”.67 113 The Senior Judge did not accept that suggestion and instead concluded as follows:68 That characterisation might explain but not excuse why, when his CEO addressed this issue on 1 June 2022, the Assessment Manager did not give him the full picture. He did not report to his CEO he had known of the deemed refusal notice, rejected it and had used the window of opportunity presented to refuse the development application. That omission in his communication with his CEO has significance. Given the subject of the complaint was the reform implemented by the deemed consent regime, it is also quite remarkable. The email from the CEO conveyed the position that the decision to refuse had been made ‘at precisely 8.09am on 7 April 2022’. That was an error. Only the Assessment Manager could refuse. He did so later, at 9.52am. The email from the CEO also conveyed the position that when refusal was uploaded at 10.02am, the Town of Gawler had not known of the deemed consent. That was also an error. The email contained those errors notwithstanding it was the product of input from external lawyers and internal expertise. Also, it was the Assessment Manager who had instructed preparation of the draft letter from which the CEO’s email had been prepared. 67 Ibid at [106]. 68 Ibid at [107]-[117]. -- 28 of 36 -- [2025] SASC 57 McDonald J 27 The draft email had also been sent through to the Assessment Manager ‘with advice from our own council’s solicitors’. He then sent it to another council officer for review, before it went to the CEO. While the Assessment Manager had not been sure solicitors had settled the email, he had assumed the letter had been reviewed by solicitors. Neither the draft letter nor draft email was in evidence. As for the letter, I do not know what the Assessment Manager intended to say to Ms Brunt’s solicitor. I do not know whether it acknowledged the timeline as to the download and review of the deemed consent notice. It was never sent and it was only a few days after that Ms Brunt commenced her appeal. The failure to respond to the solicitors for Ms Brunt, the failure to inform his CEO he had known about the deemed consent notice before he refused the application and the errors in the email to elected members and Ms Brunt, are important matters in my assessment of the reasons for and circumstances of delay by the Assessment Manager. Those failures and errors show the Assessment Manager had not come to grips with what had occurred and the significance of the deemed consent provisions. They compounded the mistake he had made on 7 April 2022, to refuse consent. Given his statutory role, his experience, his seniority and his expertise, it was not reasonable in all the circumstances for him to have approached the deemed consent notice as he had. It was also not reasonable for him to fail to tell his CEO that he had seen the deemed consent notice before refusing the development application. (Footnotes omitted) 114 Whilst it was open to the Senior Judge to arrive at the view set out at [117], it is important to note that the Senior Judge did not go so far as to reject the appellant’s explanation or make any finding that he was other than a truthful witness. 115 The appellant is an independent statutory officer.69 Whilst the appellant is appointed by the CEO, the appellant is obliged by the Act to act as the relevant authority and importantly, is not subject to direction by any other person.70 Although the reasons of the Senior Judge set out the chain of informal, internal reporting that took place, that line of reporting was not required by the Act, and the CEO had no role in determining the planning application. There is no basis in the evidence to find that this sequence of events in any way contributed to the delay. It is an additional relevant consideration that there were only eight days between the email being sent by the CEO and the respondent instituting proceedings on 9 April 2022. 116 Ground 9 has been established in that the communications between the appellant and the CEO were an irrelevant consideration in taking into account the reasons for the delay. 69 Planning, Development and Infrastructure Act 2016 (SA) s 87. 70 Ibid s 87e(i). -- 29 of 36 -- [2025] SASC 57 McDonald J 28 The events subsequent to 9 June 2022 117 On 9 June 2022 the respondent filed an Originating Application of Appeal in the ERD Court.71 The appeal was in respect of the refusal by the appellant to grant consent to the respondent’s application. 118 As set out previously, the respondent sought relief on alternative bases, namely, that there was valid deemed planning consent and therefore the refusal was invalid, or alternatively, that the appellant’s decision to refuse planning and land division approval be quashed. Even had the first argument been successful in relation to the deemed planning consent notice, it still would have been necessary for the respondent to appeal the decision to refuse the land division approval. 119 Pursuant to s 204(2) of the PDI Act and s 16 of the ERD Court Act, the proceedings instituted by the respondent necessitated the convening of a conciliation conference. That conference took place on 15 July 2022. In the Court Record of Outcome it is noted that the conference was adjourned “to allow time for the information sought to be obtained, and for the parties to confer”.72 There is a further endorsement that reads “counsel for the respondent will seek instructions on material sought from the appellant as may bring about a potential compromise”, suggesting that at that time there was still optimism about the possibility of a resolution. 120 On 16 August 2022, the appellant emailed the Court: Dear Registrar, We act for the Town of Gawler, the Respondent in the abovementioned matter. The Appellant has provided a supplementary agronomist report to the Council for their consideration. The Council now intends to engage their own agronomist and have the report peer reviewed. In order for this to occur, the Council respectfully requests that the conference listed for this Thursday, 18 August 2022 at 9.15am is adjourned for three weeks. I attach the consent of the Appellant. We would be most grateful if the conference is adjourned until sometime on 8 September 2022 or week commencing 12 September 2022 due to Counsel availability. Please call me if you have any queries. Yours faithfully, Laura Antoniazzi Lawyer 121 It would appear from that email, that as of 16 August 2022 the parties continued to be in discussion. As I have already noted, on 9 September 2022 the 71 ERD-22-000081, FDN 1. 72 Ibid, FDN 7. -- 30 of 36 -- [2025] SASC 57 McDonald J 29 appellant filed an originating application,73 and an order was made that the two sets of proceedings travel together.74 122 It was the appellant’s submission that his conduct did nothing to unreasonably contribute to any unnecessary delay subsequent to 9 June 2022. It was a requirement under the PDI Act that the respondent’s appeal had to first proceed to a conciliation conference. 123 It was the appellant’s evidence that the legal advice that he was provided with was to attempt to resolve the matter through conciliation rather than embark on instituting further proceedings, including bringing an application to quash the deemed consent. The appellant explained that it was not until it became clear to him, through the conference process, that the matter was not going to resolve that he instructed that the application should be brought. 124 The Senior Judge did not accept that this was an adequate explanation for failing to bring proceedings sooner. His Honour expressed the view that a submission that the parties were at that time involved in “an active, court- supervised conciliation process”75 was an overstatement, on the basis that there had only been one conference. 125 The appellant contends that the Senior Judge erred in failing to consider, or give adequate reasons to address, the appellant’s submission that it was reasonable to delay instituting further proceedings until avenues for conciliation were exhausted to avoid a multiplicity of proceedings.76 126 There is some force to that submission. There is a significant public interest in parties attempting to resolve disputes without incurring the cost and expense of unnecessary proceedings. The respondent by her notice of appeal, had put in direct issue the validity of her deemed consent notice. The appellant and respondent were then involved in a statutory process to explore the matters in dispute, potentially without the need to resort to litigation. 127 It was almost inevitable that the institution of further proceedings at that time would have given rise to further unnecessary legal expenses. As a matter of practicality, the matter would not have been determined whilst a conciliation process was underway, and it is probable that there would have been an order that the two sets of proceedings travel together, as was made on 13 October 2022. In terms of timing or delay, the net result would have, in all likelihood, been the same. 128 In my view, the period following the filing of the respondent’s appeal up until the applicant forming the view that the action was unlikely to resolve was an acceptable, if not sensible, explanation for the appellant to delay in commencing 73 ERD-22-000140, FDN 1. 74 Ibid, FDN 5. 75 Reasons at [121]. 76 CIV-23-011913, FDN 1, Appellant’s Grounds of Appeal, Ground 3. -- 31 of 36 -- [2025] SASC 57 McDonald J 30 proceedings in accordance with the advice that had been provided. It would ordinarily be expected that a statutory officer would act on legal advice and that would be an acceptable reason for delay. 129 Ground 3 has been established. The Senior Judge failed to properly consider or provide adequate reasons for the appellant’s explanation for the delay in instituting proceedings whilst conciliation conference proceedings were undertaken. Did or would the Respondent suffer any prejudice? 130 The onus of satisfying the Court that the discretion to extend time should be exercised lies on the appellant. It follows that to discharge the onus the appellant must establish that the commencement of the action, beyond the limitation period would not result in significant prejudice to the respondent or others. There is then an evidentiary onus on the respondent to raise any considerations telling against the exercise of the discretion. As Gowans J observed in Cowie v State Electricity Commission of Victoria:77 It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show these facts do not amount to material prejudice. 131 The Senior Judge found that in the event that he granted an extension of time the respondent would suffer prejudice. His Honour provided a limited explanation as to the prejudice that would arise. He said:78 There would be prejudice to Ms Brunt, it was submitted, if an extension was granted as the lack of consent had caused significant cost and delay. There would also be prejudice to others. If a relevant authority could ignore with impunity a deemed consent notice and delay an application to quash assuming it will obtain an extension, the community would suffer. 132 The Senior Judge further elaborated:79 Ms Brunt has had to litigate both as she would have under the replaced Act and under this Act. Given the delay in acceptance by the Assessment Manager the deemed consent was valid, and the expiry of the time legislated to apply to set aside consent, she has had to both appeal a refusal and respond to this application to extend time. She has suffered delay, has incurred cost and also been left in an uncertain position. 133 The authorities are clear, if actual prejudice of a significant kind, or the real possibility of significant prejudice is demonstrated, the limitation period should prevail, and an extension of time should not be granted.80 Of the various factors to 77 [1964] VR 788 at 793. 78 Reasons at [58]-[59]. 79 Ibid [131]-[132]. 80 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555. -- 32 of 36 -- [2025] SASC 57 McDonald J 31 be taken into account in determining whether to grant an application for an extension of time, the issue of prejudice will often be decisive. 134 It is the appellant’s contention that no actual prejudice to the respondent, or others was identified by the Senior Judge, nor did the respondent lead any evidence of prejudice, or prejudice attributable to the delay that would have enabled his Honour to come to that finding. 135 In addition, the appellant submitted that the Senior Judge’s reasons in this respect are inadequate and thus erroneous in law, in that no findings were made that identify the nature, extent or materiality of that prejudice, nor was there any consideration given as to whether, an order or the imposition of terms as to costs, would redress any such prejudice. 136 Counsel for the respondent accepted that there was no evidence of any particular prejudice before the Senior Judge, however submitted that it was open for his Honour to take “judicial notice of rising building costs and litigation costs”.81 137 There are a number of fundamental problems with that submission. Judicial notice is an evidentiary rule that allows a fact to be introduced into evidence if the truth of that facts is so notorious or well known, or so authoritatively attested to that it cannot reasonably be doubted. This is usually raised by the party seeking to rely on the fact at issue. It is important that the relevant fact or facts are precisely and clearly identified. 138 Counsel for the respondent did not invite the Senior Judge to take judicial notice of any fact or facts. Even had he done so, it begs the question of what fact or facts the Senior Judge was being requested to consider. Further, it cannot be said that “rising building and litigation costs” satisfies the test of being so notorious or well known that it cannot reasonably be doubted, particularly in circumstances in which the delay occasioned was for four months. 139 This highlights a further problem with this submission, in that there was no evidence before the Court about what the respondent proposed to do with the land and when she intended to do it. Whilst she had sought planning consent and land division consent, the respondent had not sought any planning consent or building consent to construct any buildings on the proposed allotments. 140 The final, and most significant difficulty with this submission is that the Senior Judge did not purport to take judicial notice of any fact or facts that might form the basis for a conclusion that the respondent was prejudiced by the delay. 141 The only basis identified by the Senior Judge, for a finding that the respondent suffered any prejudice through delay, was that the respondent “had to 81 CIV-23-011913, FDN 7, Written Submissions of Respondent at [20]. -- 33 of 36 -- [2025] SASC 57 McDonald J 32 litigate both as she would have had to under the replaced Act and under this Act”.82 By this it would appear that the Senior Judge was suggesting that because the respondent was required to appeal the decision of the appellant to refuse planning consent and land division consent, and in the alternative seek a declaration that the deemed planning consent notice was valid, it caused prejudice to the respondent. 142 With respect to the Senior Judge, the issue identified is not a product of delay, but rather part of the circumstances created by the factual matrix that had developed up to that point in time, with the parties holding differing views regarding the validity of the deeming consent notice and consequently the refusal of the planning consent. 143 Given that no deemed consent was available for the application for land division, once the appellant determined to refuse permission for that aspect of the proposal, it was inevitable that the respondent would need to appeal at least that aspect of the decision in the ERD Court. The grounds relating to the application for planning approval travelled alongside the land division appeal. 144 There has been no suggestion that those appeal grounds have been in any way impacted upon by the failure of the appellant to file their Originating Application within the statutory time frame. There is no suggestion that by applying for an extension of time in which to seek an order to set aside the deemed consent, the respondent had been required to expend any further expense in the litigation that she instigated in the ERD Court. If that was in fact the case any potential prejudice could be met by an order for costs. 145 In my view there is merit to the complaint that there was no evidence upon which to find that the delay had caused the respondent any real or actual prejudice. I find that grounds 1 and 2 have been established. Additional considerations 146 In considering the overall issue of prejudice, there are a number of additional matters to be taken into account. This was not a situation in which the appellant had an expectation of receiving consent and had been taken by surprise by the outcome. She had been appraised throughout the process of the appellant’s concerns and the likelihood that her application would not meet with success. Just over a week prior to the expiry date for determining the application, the respondent had been advised that the appellant would not be consenting to her application. In those circumstances, the respondent still chose to lodge a deemed consent notice, 10 minutes after the commencement of business hours, on the first day that the appellant was out of time. This decision was no doubt made in the knowledge that the appellant did not have land division consent, and a likely outcome was that the appellant would institute proceedings in Court to quash the deemed consent notice. 82 Reasons at [131]. -- 34 of 36 -- [2025] SASC 57 McDonald J 33 147 It was no doubt a further calculated move to await the expiry of the one-month period in which the appellant was entitled to make an application to quash the notice, before writing to the appellant. Whilst the respondent was under no obligation to have alerted the appellant to the situation, it is a relevant factor in assessing the issue of whether the respondent has suffered any real prejudice by the delay that was caused by the appellant failing to file proceedings until 9 September 2022. Whether the application had any prospects of success and the public interest 148 The Senior Judge appears to have considered these two questions together. 149 In his judgment his Honour expressed the view that there was a proper basis for the appellant to have refused consent in this case. His Honour said the following:83 While I do not need to determine that planning question on this application, the integrity of the planning regime is important. I have given that weight in favour of extending time in this case. 150 Whilst concisely expressed, the Senior Judge had regard to the public interest in the granting or refusal of the appellant’s development application. There is no merit to ground 10. Reliance on the records of outcome in conferences held pursuant to s 16 of the ERD Court Act 151 Grounds 4 and 5 raise a discrete point about the reliance by the Senior Judge on records of outcome in conferences held pursuant to s 16 of the ERD Court Act. Ground 4 contends that the Senior Judge erred in taking into account these outcomes and Ground 5 complains of a lack of procedural fairness as a consequence of any reliance placed upon these outcomes. 152 Although the grounds refer to conferences, the only reference, in the reasons of the Senior Judge, is to the conference that took place on 15 July 2022. 153 Section 16(8) of the ERD Court Act provides that evidence of anything said or done in the course of a conference is inadmissible except by the consent of all parties to the proceedings. 154 The policy reasons behind such a provision are plain. The parties should not be discouraged from entering into full and frank discussions and negotiations out of concern that what they say will be used against them in the substantive proceedings. 155 That is not the situation here. The Senior Judge relied upon details that were recorded upon the publicly available record of outcome in order to gain an appreciation of the chronology of events. That does not cut across the prohibition 83 Reasons at [134]. -- 35 of 36 -- [2025] SASC 57 McDonald J 34 against admitting in proceedings “evidence of anything said or done in the course of a conference”. 156 Even if the Senior Judge in some way transgressed this provision, the information relied upon in fact assists the appellant in that it demonstrates that throughout this process it would appear that the parties were continuing to attempt to genuinely negotiate. This supports the appellant’s contention that there was a pragmatic and sensible basis upon which to hold off instituting proceedings. 157 There is no merit to grounds 4 and 5. The decision to refuse to extend time to commence proceedings was not reasonably open to the Senior Judge (Ground 11) 158 Given the process errors that I have found in relation to the other grounds of this appeal, it is not necessary to consider whether there has been an outcome error. The parties have agreed that in the event that I find that there were process errors and I allow the appeal, the appropriate course is for this Court to re-exercise the discretion as to whether to grant the extension of time. 159 That is the course that I propose to adopt. 160 I allow the appeal. The decision of the Senior Judge to refuse the extension of time to institute proceedings is set aside. I will hear submissions from the parties as to whether the appellant should be granted an extension of time. -- 36 of 36 --