PETER NICHOLAS MOLONEY v 21-25 SOUTH ESPLANADE PTY LTD [2024] SASCA 58

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) [2022] SASC 106 Appellant: PETER NICHOLAS MOLONEY Counsel: MR D BILLINGTON - Solicitor: MOLONEY & PARTNERS First Respondent: 21-25 SOUTH ESPLANADE PTY LTD Counsel: MR M RODER KC WITH MR T BESANKO - Solicitor: BOTTEN LEVINSON Second Respondent: STATE PLANNING COMMISSION No Attendance Third Respondent: BRUCE KAY No Attendance Fourth Respondent: HENRIETTE KAY No Attendance Fifth Respondent: MARK FORGIE No Attendance Sixth Respondent: DALE HANSON No Attendance Seventh Respondent: CITY OF HOLDFAST BAY No Attendance Hearing Date/s: 04/04/2023, final submissions received 3 May 2023 File No/s: CIV-22-011192 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) 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. MOLONEY v 21-25 SOUTH ESPLANADE PTY LTD & ORS [2024] SASCA 58 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 10 May 2024 ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL The appellant owns property adjoining a proposed development in Glenelg. The developer, 21-25 South Esplanade Pty Ltd (the respondent), sought planning consent from the second respondent, the State Planning Commission. The Commission’s delegate, the State Commission Assessment Panel (SCAP), treated the development as a Category 2 development. The appellant and others were notified and contended that the development should be refused planning consent. Initially, the development comprised three underground levels, which included car parking space, and was proposed to rise more than 45 metres and 13 storeys. The revised development is proposed to rise more than 40 metres and at least 10 storeys. The development requires the demolition of two heritage listed dwelling houses. The relevant portions of the Development Plan provide for a maximum of five storeys in the area of the development and protect heritage places from demolition. SCAP refused planning consent and the respondent appealed to the Environment, Resources and Development Court (the ERD Court). The appellant and others sought to be joined to the planning -- 1 of 52 -- appeal. Before the application for joinder was heard, SCAP and the respondent resolved the appeal on the basis of the revised development proposal. This occurred before a conference was conducted pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act). An order for joinder was made by the ERD Court which permitted the appellant to contest the merits of the respondent’s revised development in the planning appeal. The respondent appealed to a single judge of the Supreme Court, who allowed the appeal and set aside the order for joinder, finding that the joinder powers contained in s 17 of the ERD Court Act and s 88(2)(c) of the Development Act 1993 (SA) (now repealed) (the Development Act) were constrained by the respondent’s right to have the compromise reflected in orders of the ERD Court under s 16 of the ERD Court Act. The appeal judge distinguished the decision of the Full Court in Pitt v Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) and declined to follow O’Neill v Kimhi [2008] SASC 109 (O’Neill) because those cases did not concern joinder where the planning appeal had been compromised. HELD (the Court), allowing the appeal, and dismissing the notice of contention, setting aside the orders made by the appeal judge and restoring the orders made by the ERD Court: 1. The appeal judge erroneously constrained the operation of s 88(2)(c) of the Development Act by reference to the terms of s 16 of the ERD Court Act. The suggested new approach outlined in the decision under appeal, which gives primary emphasis to s 16 of the ERD Court Act, should not be followed. 2. Whilst the operation of both Acts may inform the proper approach to the statutory scheme of which they form a part, orthodox principles of construction require that any review of the exercise of the discretion to order joinder give primary consideration to the terms of s 88(2)(c) of the Development Act. 3. On an application of those principles of construction, as informed by the decisions in Pitt and O’Neill, the absence of a right of appeal in a Category 2 representor, and the fact of a compromise of the planning appeal between a developer and a planning authority, are relevant but not decisive considerations. O’Neill was a case where a compromise between the developer and the planning authority was in prospect at the time joinder was argued, and occurred after joinder was refused and before the appeal seeking joinder was heard. 4. The appeal judge should have found that the appellant demonstrated the existence of “a special interest in the subject-matter of the application” (or planning appeal) under s 88(2)(c)(i) of the Development Act, as well as “a direct or material interest in the matter” under s 16(9)(b) of the ERD Court Act. 5. The order for joinder was rightly made by the ERD Court under s 88(2)(c) of the Development Act and in conformity with the principles laid down in Pitt and O’Neill. The ERD Court made no error of law, and the exercise of discretion it made was open to it. It is for the ERD Court as a specialist tribunal to determine how best to manage its business. Acts Interpretation Act 1915 (SA) s 34; Children and Young People (Safety) Act 2017 (SA); Criminal Procedure Act 1921 (SA); Development Act 1993 (SA) ss 32, 33, 44, 86, 88; Development (Assessment Procedures) Amendment Act 2007 (SA); Environment, Resources and Development Court Act 1993 (SA) ss 5, 7, 16, 17, 21; Legislation Interpretation Act 2021 (SA) s 3; Planning, Development and Infrastructure Act 2016 (SA) s 101, 102, 215; Sentencing Act 2017 (SA); Supreme Court Act 1970 (NSW); Youth Court Act 1993 (SA), referred to. 21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4; 21-25 South Esplanade Pty Ltd v State Planning Commission & Ors [2022] SASC 106; A, B and C Commissioner v CFMEU (2018) 262 CLR 157; Abebe v Commonwealth (1999) 197 CLR 510; Anderson v The Commonwealth (1932) 47 CLR 50; Australian Competition and Consumer Commission v Real Estate Institute (WA) (1999) 95 FCR 114; Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; Bates v City of Holdfast Bay [2017] SAERDC 40; CGU Insurance Ltd v -- 2 of 52 -- Blakeley (2016) 259 CLR 339; Ciccarello v City of Charles Sturt [2010] SAERDC 49; Citify Pty Ltd v Corporation of the City of Marion [2021] SAERDC 30; City of Marion v Paior (2013) 117 SASR 223; City of Marion v Lady Becker (1973) 6 SASR 13; Clarke v District Council of Grant [2016] SAERDC 36; Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409; Conservation Council of WA Inc v Dawson [2019] WASCA 102; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; Duckworth v Water Corporation (2012) 261 FLR 185; Elliot v Town of Walkerville (1982) 2 APA 267; Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398; Erujin Pty Ltd v Western Australia Planning Commission (2010) 70 SR(WA) 69; Gibbs v City of Charles Sturt (2010) 176 LGERA 341; Gouriet v Union of Post Office Workers [1978] AC 435; Green v Lord Penzance (1881) 6 AC 657; Hadid v Lenfest Communications Inc (1996) 70 FCR 403; Harvey v Phillips (1956) 95 CLR 235; Ibrahim v Medical Board of Australia [2015] NSWCA 207; Independent Holdings Ltd v City of Adelaide Planning Commissioner (1994) 63 SASR 318; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100; Kinloch v Manzione [2022] ACTSC 76; Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; Lakshmanan v City of Norwood (2010) 174 LGERA 428; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; London Passenger Transport Board v Moscrop [1942] AC 332; M & J Dowling Pty Ltd v City of Malvern (1983) 1 PABR 86; McLeod v Legal Profession Conduct Commissioner [2016] SASC 151; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Mt Lofty Ranges Association Inc v State Planning Authority [1973] SAPR 290; Nguyen v The Queen [2022] SASCA 25; NL v Chief Executive of Department for Child Protection [2023] SASCA 20; Nunn v South Gippsland Shire Council [2012] VCAT 1804; O’Neill v Kimhi [2008] SASC 109; Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77; Petroleum Refineries (Aust) Pty Ltd v Archer Boulton Pty Ltd (1991) 55 SASR 510; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; Police v Mahon [2022] SASCA 76; Psevdos v Commonwealth Bank of Australia (2016) 248 FCR 430; R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407; R v Marshall [2023] SASCA 105; Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633; Re Brashs Pty Ltd (1994) 15 ACSR 477; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Re York Street Mezzanine Pty Ltd (In Liq) (2007) 162 FCR 358; Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; Terra Group Pty Ltd v City of Port Adelaide Enfield [2015] SAERDC 26; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11; Twenty-Seven Properties Ltd v District Council of Noarlunga (1975) 32 LGRA 407; Valentine v Eid (1992) 27 NSWLR 615; Victorian Workcover Authority v BSA Limited & Ors [2017] VSCA 276; Ward v Williams (1955) 92 CLR 496; Whitehouse Developments Pty Ltd v City of Sydney [2017] NSWLEC 1391; Zweck v Town of Gawler (2015) 124 SASR 319, considered. -- 3 of 52 -- -- 4 of 52 -- MOLONEY v 21-25 SOUTH ESPLANADE PTY LTD & ORS [2024] SASCA 58 Court of Appeal – Civil: Livesey P, Bleby and David JJA THE COURT: Introduction 1 This is an appeal against a decision to overturn an order for joinder made by the Environment Resources and Development Court of South Australia (the ERD Court).1 The appeal judge upheld the appeal against the ruling made by the ERD Court on the basis that the order for joinder should not have been made where the existing parties to the appeal – the developer and the planning authority – had resolved it ahead of an adjourned conference conducted pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Court Act).2 2 In so doing, the appeal judge held that the joinder powers contained in s 17 of the ERD Court Act and s 88(2)(c) of the Development Act 1993 (SA) (now repealed) (the Development Act) did not permit the joinder of adjoining landowners to an appeal between a developer and the planning authority though they had been given notice about and made representations against what was a Category 2 development. Though the terms of s 16(9) of the ERD Court Act and s 88(2)(c) of the Development Act did not explicitly exclude Category 2 representors, the appeal judge held that it was significant that they had no right of appeal. 3 The appeal judge distinguished Pitt v Environment Resources and Development Court,3 where the Full Court ruled that the scope of the joinder power under s 17 of the ERD Court Act (before the introduction of s 88(2)(c) of the Development Act) extended to Category 2 representors, because there was in that case no compromise of the kind that occurred in this case. 4 Moreover, the appeal judge declined to follow the later decision of O’Neill v Kimhi4, where the statements of principle made in Pitt – and the subsequent case of Onesteel Manufacturing Pty Ltd v Environment Protection Authority5 – were followed after s 88(2)(c) of the Development Act was introduced. O’Neill was a case where a compromise between the developer and the planning authority was 1 21-25 South Esplanade Pty Ltd v State Planning Commission [2022] SAERDC 4 (Burnett DCJ and Commissioner Rumsby) (ERD Court Reasons). 2 21-25 South Esplanade Pty Ltd v State Planning Commission & Ors [2022] SASC 106 (Kourakis CJ) (Reasons). 3 Pitt v Environment Resources and Development Court (1995) 66 SASR 274 (Pitt) (Doyle CJ, Duggan and Nyland JJ). 4 O’Neill v Kimhi [2008] SASC 109 (O’Neill). 5 Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 (OneSteel). -- 5 of 52 -- [2024] SASCA 58 The Court 2 in prospect at the time joinder was argued, and occurred after joinder was refused and before the appeal was heard. 5 Though O’Neill appears to have been consistently followed since 2008,6 the appeal judge did not determine whether the ruling was plainly wrong.7 It is unnecessary to determine whether that test applied as it is for this Court to determine the preferable approach. Overview of the disposition of the appeal 6 For the reasons that follow, the order for joinder was rightly made by the ERD Court under s 88(2)(c) of the Development Act and in conformity with the principles laid down in Pitt and O’Neill. 7 The appeal judge erroneously constrained the operation of s 88(2)(c) of the Development Act by reference to the terms of s 16 of the ERD Court Act. Whilst the operation of both Acts may inform the proper approach to the statutory scheme of which they form a part, orthodox principles of construction require that any review of the exercise of the discretion to order joinder give primary consideration to the terms of s 88(2)(c) of the Development Act. 8 On an application of those principles of construction, as informed by the decisions in Pitt and O’Neill, the absence of a right of appeal in a Category 2 representor, and the fact of a compromise of the planning appeal between a developer and a planning authority, are relevant but not decisive considerations. As the Full Court observed in Pitt, the joinder power requires that a party without a right of appeal demonstrate that an order for joinder should be made. That was the approach taken to s 17 of the ERD Court Act, and a similar approach has been taken to s 88(2)(c) of the Development Act. 9 The new approach outlined in the decision under appeal, which gives primary emphasis to s 16 of the ERD Court Act, should not be followed. 10 The ERD Court made no error of law, and the exercise of discretion it made was open to it. It is for the ERD Court as a specialist tribunal to determine how best to manage its business. 6 See, for example, Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11 (Judge Cole). 7 In Duckworth v Water Corporation (2012) 261 FLR 185, [31], Edelman J relied on the decision of Justice Hayne in Re Brashs Pty Ltd (1994) 15 ACSR 477 for the proposition that trial judges should generally follow the decisions of other trial judges concerning Commonwealth or uniform national law and, in so doing, he relied on authorities where similar sentiments had been expressed about decisions by single judges concerning the common law, such as Valentine v Eid (1992) 27 NSWLR 615, 622 (Grove J), unless “convinced that that judgment is wrong”; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204 (Burchett J), the court should “usually follow the decision of another judge at first instance … unless … convinced that the judgment was wrong”; and Re York Street Mezzanine Pty Ltd (In Liq) (2007) 162 FCR 358, [22]-[23] (Finkelstein J), unless the other judgment is “plainly wrong”. See also Psevdos v Commonwealth Bank of Australia (2016) 248 FCR 430, [15]-[17] (Charlesworth J), cf Kinloch v Manzione [2022] ACTSC 76, [34] (Kennett J). -- 6 of 52 -- [2024] SASCA 58 The Court 3 11 In consequence, the appeal should be allowed. The notice of contention should be dismissed. 12 These reasons are structured as follows: Overview of the disposition of the appeal ..................................................................................... 2 Factual background ........................................................................................................................ 3 The reasons of the ERD Court ....................................................................................................... 6 The reasons of the appeal judge ..................................................................................................... 8 The ERD Court and the relevant legislation ................................................................................ 10 The ERD Court .................................................................................................................. 10 Sections 16 and 17 of the ERD Court Act.......................................................................... 12 The Development Act (now repealed)................................................................................ 17 Relevant authorities preceding this appeal................................................................................... 24 The approach of the parties to this appeal.................................................................................... 32 First question: joinder under s 88(2)(c) of the Development Act ................................................. 36 Sub-section 88(2)(a) .......................................................................................................... 36 Distinguishing Pitt and not following O’Neill ................................................................... 37 Other matters ..................................................................................................................... 40 Second question: s 16 of the ERD Court Act ............................................................................... 42 Disposition of the appeal.............................................................................................................. 46 Conclusion ................................................................................................................................... 47 Factual background 13 A Category 2 representor and adjoining landowner in Glenelg, Mr Moloney (the appellant), contended that the development proposed by the developer, 21-25 South Esplanade Pty Ltd (the respondent), should be refused planning consent. The order for joinder made by the ERD Court permitted the appellant to contest the merits of the respondent’s development in a planning appeal. 14 The respondent proposes to construct a large apartment building which will wrap around the appellant’s residence on two sides. Initially, the development comprised three underground levels, which included car parking space, and was proposed to rise more than 45 metres and 13 storeys. The revised development is proposed to rise more than 40 metres and at least 10 storeys. The development requires the demolition of two heritage listed dwelling houses. 15 The relevant portions of the Development Plan provide for a maximum of five storeys in the area of the development and protect heritage places from demolition. -- 7 of 52 -- [2024] SASCA 58 The Court 4 16 The respondent sought planning consent8 from the second respondent, the State Planning Commission. The Commission’s delegate, the State Commission Assessment Panel (SCAP), treated the development as a Category 2 development. SCAP gave notice of the development application to the appellant and others in the immediate vicinity. The appellant and at least 23 others made representations opposing the development. The appellant relied on an expert planning report and the opinion of counsel that the development was seriously at variance with the Development Plan. In addition, SCAP permitted the appellant by counsel to make an oral address to it. 17 On 30 June 2021, SCAP refused planning consent and gave reasons. They were: a) The proposal significantly departs from the intent of the Desired Character Statements within Urban Glenelg Policy Area 15 and Precinct 4 Five Storey, Precinct; Precinct PDC 20(b) and (c), and General Section Design and Appearance PDC 1 for the following reasons: i. The proposal does not achieve a sufficient transition in scale; and ii. The proposal presents excessive massing, is insufficiently modulated and does not adequately acknowledge and respect the existing context. b) It has not been adequately demonstrated that the Local Heritage Place cannot be conserved in accordance with General Section Heritage Places Objective 1 and Objective 2. 18 On the same day, SCAP determined that the development was not seriously at variance. The appellant instituted proceedings in the ERD Court challenging that decision in what has been described as a “review action”. The respondent applied under s 17(1) of the ERD Court Act to be joined to the review action and, by consent, an order for joinder was made. 19 On 10 August 2021, the appellant appealed the refusal to grant planning consent to the ERD Court, seeking a de novo re-determination of the decision. The sole ground of the planning appeal was: Having regard to the circumstances and all of the relevant provisions of the Development Plan, the proposed development warranted development plan consent. 20 Soon after the institution of the planning appeal to the ERD Court, various parties, including the appellant, applied to be joined to the planning appeal: 8 This was described as “development plan consent” under s 33(1)(a) of the Development Act, but it is now referred to as “planning consent” under s 102(1)(a) of the Planning, Development and Infrastructure Act 2016 (SA). Planning consent was sought under ss 32, 33(1)(a) and 44(1) of the Development Act, now replaced by ss 101, 102(1)(a) and 215(1) of the Planning, Development and Infrastructure Act 2016 (SA). -- 8 of 52 -- [2024] SASCA 58 The Court 5 1. On 20 August 2021 Mr Mark Forgie and Mr Dale Hanson applied, as the owners of apartments in Saltram Towers, which is adjacent to the development on its northern side. 2. On 23 August 2021 the appellant applied. 3. On 31 August 2021 the City of Holdfast Bay applied, as the owner of property directly opposite the proposed development. 4. On 14 September 2021 Mr Bruce Kay and Ms Henriette Kay applied, as they live next door to the appellant and immediately adjacent the southern boundary of the development. 21 Each of these applicants for joinder had either made submissions to, or lodged representations with, SCAP. 22 However, before the planning appeal commenced, the respondent prepared a revised development proposal which reduced the overall height of the building from between four and 13 storeys to between four and 10 storeys. The revised development proposal was put to SCAP between 20 and 29 July 2021. SCAP considered the proposal between 11 and 25 August 2021. Consideration proceeded in confidence because SCAP took the view that if it accepted the proposal, that would constitute a compromise of legal proceedings.9 23 On 21 September 2021, SCAP communicated an offer to the respondent to resolve the appeal on the basis of the revised development proposal, which was made subject to certain conditions. This was described by the appeal judge as a concluded agreement to compromise the planning appeal.10 24 Necessarily, SCAP neither heard nor received material from any of the Category 2 representors, including the applicants for joinder, concerning the revised proposal. Neither the appellant nor anyone else appears to have seen all of the materials considered by SCAP or a record of its deliberations. 25 Nonetheless, some of the materials provided to SCAP have since been made available to the ERD Court and the applicants for joinder.11 26 Before the compromise, on 3 September 2021 the appellant and SCAP appeared before a Commissioner of the ERD Court at a conference held pursuant to s 86(6) of the Development Act and s 16 of the ERD Court Act. The appellant requested that the conference be adjourned for directions before a judge of the ERD Court so as to consider the joinder applications and a foreshadowed joinder application by the Kays. The respondent indicated that it would object to the applications for joinder. 9 Reasons [5]. 10 Reasons [5]. 11 Exhibit 2, IP6; Exhibit 3, IP3; Exhibit 4, A12 (Appeal book pages 103-169). -- 9 of 52 -- [2024] SASCA 58 The Court 6 27 The application for an adjournment was opposed by some of the applicants for joinder. The court ordered that the hearing of the joinder applications be adjourned and that another s 16 conference be held on 10 September 2021.12 28 The respondent and SCAP agreed that the revised development proposal plans would be provided to the applicants for joinder by 6 September 2021, on a strictly confidential basis. 29 On 10 September 2021, the ERD Court re-convened the s 16 conference concerning the planning appeal, the appellant’s review action and another review action brought by the Kays. The parties to each action and the joinder applicants were all permitted to attend and participate in this conference. 30 The respondent did not attempt to have the compromise recorded at the conference. It was not suggested by the respondent that it had any right to have its compromise reflected in orders of the court. 31 The conference was again adjourned and the joinder applications were heard in open court. The argument of the respondent was that the fact of a compromise should weigh against joinder. The Commission determined to abide the event. The reasons of the ERD Court 32 In considered reasons for decision spanning nearly 30 pages, the ERD Court reasoned in favour of joinder as follows: 1. It could not be assumed that the ERD Court would give effect to the compromise.13 2. It is in the public interest to expose the merits of the revised development proposal to scrutiny.14 3. It was appropriate to expose the merits of the proposed revised development to scrutiny because of the effect it would have on the interests of the applicants for joinder.15 4. The arguments and evidence which the applicants for joinder would introduce on the sole issue raised by the respondent’s planning appeal, whether planning consent should be granted, would assist the ERD Court in ways which the existing parties may not.16 12 Reasons, [8]. 13 ERD Court Reasons, [107], [111], [113] and [121]. 14 ERD Court Reasons, [120]. 15 ERD Court Reasons, [91]-[93] and [106]. 16 ERD Court Reasons, [109]-[110] and [121]. -- 10 of 52 -- [2024] SASCA 58 The Court 7 5. Weighing all relevant matters, and exercising the discretionary power conferred by the ERD Court Act and the Development Act, it was in the interests of justice to make the order for joinder.17 33 In the course of considering the respective arguments, the ERD Court gave careful consideration to the ruling of the Full Court in Pitt,18 as well as the subsequent ruling of Debelle J in O’Neill.19 The ERD Court considered whether the applicants for joinder had established a special interest in the proposed development as well as whether the interests of justice required joinder. 34 Critically, the ERD Court recorded that both the respondent and the applicants for joinder were agreed that s 88(2)(c) and, for that matter, the successor provision s 205(2)(c) of the Planning, Development and Infrastructure Act 2016 (SA), did not impose criteria that were materially different to those considered by the Full Court in Pitt.20 35 Acknowledging that Pitt was not a case where there was a compromise between the developer and the planning authority, the ERD Court considered the way in which this consideration was evaluated in a different context by the Full Court in Coast Protection Board v Carramatta Holdings Pty Ltd.21 As the ERD Court reasoned:22 Although Carramatta Holdings involved an application under s 85 of the Development Act for enforcement orders, the statements of principle made by Kourakis CJ (and Stanley J, to which we will refer later in these Reasons) are, in our opinion, equally applicable to an application or appeal under s 86. In cases involving both ss 85 and 86, settlements may involve some other form of development that requires consideration against the criteria of the Development Act, persons other than the direct parties have an interest in the outcome and the public as a whole has an interest that the requirements of the Development Act will be observed. That will be relevant to our determination of whether joinder is in the interests of justice. Settlement of a dispute between a developer and the relevant authority following the institution of an appeal against a refusal of a proposed development will be a relevant consideration in the exercise of the discretion to join parties to the appeal. However, settlement will not operate as a bar to joinder: to do so would be to ignore the interests of joinder applicants or others in a proposed settlement,23 the interests of the public in ensuring that the requirements and objectives of the Development Act are observed and the role of the Court in considering any settlement proposal. 36 The ERD Court also referred to the decision of Judge Cole in Truenergy Renewal Development Pty Ltd v Regional Council of Goyder, where the court 17 ERD Court Reasons, [103]-[120]. 18 Pitt (1995) 66 SASR 274. The ERD Court also considered the subsequent decision of Debelle J in Onesteel (2005) 92 SASR 67, [20] (Debelle J). 19 O’Neill [2008] SASC 109. 20 ERD Court Reasons, [63]-[64]. 21 Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409, [24] and [27] (Kourakis CJ). 22 ERD Court Reasons, [67]-[68]. 23 Sections 16(7)(c) and 16((9)(b) of the ERD Court Act. -- 11 of 52 -- [2024] SASCA 58 The Court 8 permitted the joinder of two of four applicants for joinder who had been given Category 2 notifications. Her Honour reasoned to the effect that, were joinder not ordered, those who received notice of a Category 2 development may never have an opportunity to make representations about a revised development proposal.24 37 The ERD Court concluded that the decisions in Pitt and O’Neill set out statements of principle which remained applicable even where there had been a compromise between a developer and a planning authority:25 The decisions in O’Neill and Pitt, to which we have already made reference earlier in these reasons, set out statements of principle which remain applicable in determining a joinder application even where the existing parties may have, between themselves, reached an agreement to settle the dispute. Therefore, in O’Neill joinder was permitted in circumstances where a settlement had been reached between the developer and the relevant authority after a s 16 conference but prior to an appeal from an earlier decision to refuse joinder. It would be inconsistent with the statements of principle set out in O’Neill and Pitt to hold that settlement of the dispute between the developer and the relevant authority was determinative. 38 The appellant submitted that the approach of the ERD Court was both orthodox and a correct application of the relevant authorities, particularly the authority of the Full Court in Pitt. The reasons of the appeal judge 39 The respondent’s appeal to the appeal judge was, as mentioned, allowed and the orders for joinder were set aside. In the course of detailed reasons, the appeal judge held: 1. Where those who are parties as of right to a planning appeal have settled their dispute, the ERD Court was bound pursuant to s 16(7), subject only to s 16(9) of the ERD Court Act, to record that settlement and to make any determination or order necessary to give it effect.26 2. Neither the appellant nor the other applicants for joinder had a direct or material interest in the appeal which would be prejudiced by the recording of the settlement. Pursuant to s 16(9) of the ERD Court Act the only non-parties with a direct and material interest in a planning appeal are those notified of a Category 3 development because, if the appeal is settled without their joinder and consent, they would suffer the prejudice of being denied their statutory right of appeal against a development authorisation.27 3. Where s 16(9) of the ERD Court Act did not stand in the way of recording a settlement, the court was bound to record it and make consequential orders. Accordingly, there would then be no hearing “and certainly no de novo 24 Truenergy Renewable Development Pty Ltd v Regional Council of Goyder [2013] SAERDC 11, [23] (Judge Cole). 25 ERD Court Reasons, [70]. 26 Reasons, [15], [37]-[39] and [62]-[64] and [83]. 27 Reasons, [13]-[14], [37]-[39], [62]-[64] and [83]. -- 12 of 52 -- [2024] SASCA 58 The Court 9 hearing” of the merits of the planning appeal. Because the applicants for joinder were joined without determining whether they had a direct or material interest in the appeal they were able to veto the settlement and it became necessary to proceed to a merits hearing and, thereby, subvert the proper operation of ss 16(7) and 16(9) of the ERD Court Act.28 40 In support of the conclusion that the applicants for joinder had no direct or material interest in the appeal, the appeal judge relied on s 88(2)(a) of the Development Act which stipulated that the ERD Court should only deal with and resolve issues in dispute between the parties. By permitting the joinder of persons with no direct or material interest in the appeal, a proceeding in which there was no extant controversy was converted into a proceeding in which there was a controversy between the parties who had resolved their differences, on one hand, and those who do not enjoy any right of appeal, on the other. 41 In consequence, the respondent was correct to submit that the joinder applicants “had no right to be joined” to the planning appeal.29 42 Having criticised the ERD Court for giving an “excessively wide operation” to s 16(9) of the ERD Court Act, the appeal judge also criticised the ERD Court for “wrongly” having regard to the assistance which the applicants for joinder might provide at a de novo hearing without first considering the respondent’s “entitlement or otherwise to have orders made without a hearing on the merits”.30 43 The appeal judge found that the ERD Court fell into error because it wrongly applied the observations of Doyle CJ in Pitt, which was a case where no compromise had been reached.31 44 After reviewing the reasons of the ERD Court in some detail the appeal judge concluded:32 The ERD Court’s error…was to ignore the purpose of s 16 of the ERD Court Act which is to explore a resolution ‘without a formal hearing’ and if so resolved, to apply ss 16(7) and 16(9). At most, the ERD Court might have permitted Category 2 representors to appear as interested persons in the summary proceeding envisaged by s 16(7) of the ERD Court Act on the issues raised by s 16(9), but the procedural step of joining them as parties subverted the proper application of s 16(7). The error … was … to assume that there would be a hearing on the merits. 45 After considering the ERD Court’s analysis of the effect of the compromise,33 the appeal judge held:34 28 Reasons, [15]. 29 Reasons, [16]-[18]. 30 Reasons, [19]. 31 Reasons, [19]. 32 Reasons, [81]. 33 ERD Court Reasons, [113]-[118]. 34 Reasons, [83]. -- 13 of 52 -- [2024] SASCA 58 The Court 10 The approach of the ERD Court … conflates the relatively limited impacts of joinder on an appeal which is proceeding on the merits with the radical effect it has on the function conferred on the ERD Court by ss 16(7) and 16(9) of the ERD Court Act. It is not a matter of the settlement acting as an absolute bar to joinder. Persons notified of a Category 3 development must necessarily be joined because they are exempt from the requirements of placita (i), (ii) and (iii) of s 88(2)(c) of the Development Act and are persons with a direct and material interest. Persons notified of a Category 2 development are not, but their joinder will necessarily prevent the recording of a settlement which would otherwise be recorded. The public interest to be considered went beyond the way in which the joinder applicants had conducted themselves in the litigation. The public interest was in the proper exercise of the power to join in a way which is consistent with ss 16(7) and 16(9) of the ERD Court Act. 46 As can be seen, the resolution of the question of joinder was bound up in the approach taken to s 16 of the ERD Court Act. The ERD Court and the relevant legislation 47 In order to address the contentions on appeal it is necessary to consider the role of the ERD Court and the legislation that applied. The ERD Court 48 The ERD Court is a court of record which, when determining statutory appeals, exercises judicial power.35 Speaking generally, the ERD Court only has such jurisdiction as is conferred by statute or as arises by necessary implication.36 49 There are a number of statutes which confer jurisdiction on the ERD Court concerning the environment,37 resources,38 and development.39 50 In broad terms, these statutes confer upon the ERD Court the jurisdiction to hear and the power to determine appeals from administrative decisions of various kinds. They also confer jurisdiction to determine civil enforcement proceedings for breaches, or suspected breaches, of the relevant Act, as well as criminal proceedings brought for the purposes of trying an offence against the relevant Act. 35 ERD Court Act, s 5; Lakshmanan v City of Norwood (2010) 174 LGERA 428, [71] (Kourakis J, with whom White J agreed); Zweck v Town of Gawler (2015) 124 SASR 319, [55]-[57] (Blue J, with whom Kourakis CJ agreed at [11] and Nicholson J agreed at [109]). 36 ERD Court Act, s 7. 37 Maralinga Tjarutja Land Rights Act 1984 (SA), Pastoral Land Management and Conservation Act 1989 (SA), Native Vegetation Act 1991 (SA), Environment Protection Act 1993 (SA), River Murray Act 2003 (SA), Adelaide Dolphin Sanctuary Act 2005 (SA), Fisheries Management Act 2007 (SA), Marine Parks Act 2007 (SA), Local Nuisance and Litter Control Act 2016 (SA) and Radiation Protection and Control Act 2021 (SA). 38 Mining Act 1971 (SA), Opal Mining Act 1995 (SA), Irrigation Act 2009 (SA), South Eastern Water Conservation and Drainage Act 1992 (SA), Ground Water (Qualco-Sunlands) Control Act 2000 (SA), Renmark Irrigation Trust Act 2009 (SA), Landscape South Australia Act 2019 (SA) (and its predecessors the Natural Resources Management Act 2004 (SA) and the Water Resources Act 1997 (SA)), and Petroleum and Geothermal Energy Act 2000 (SA). 39 South Australian Motor Sport Act 1984 (SA), Strata Titles Act 1988 (SA), Development Act 1993 (SA) (repealed), Heritage Places Act 1993 (SA), Native Title (South Australia) Act 1994 (SA), Community Titles Act 1996 (SA), and Planning, Development and Infrastructure Act 2016 (SA). -- 14 of 52 -- [2024] SASCA 58 The Court 11 51 In this context, it may be expected that when it is asked to consider making orders to give effect to the settlement of an appeal from a refusal to grant various kinds of authorisations or other permissions, the ERD Court will routinely be concerned with decisions that affect both private interests and the public interest. Likewise, enforcement orders and criminal proceedings will routinely affect both private and public interests. 52 Like any court, the ERD Court is not permitted to make orders beyond jurisdiction and,40 when making orders by consent, it must be satisfied not only that the proposed order is within power but that it is appropriate to make the order.41 It is a corollary of the requirement that the ERD Court determine that a consent order is both within power and appropriate to be made, that it will never merely act as a “rubber stamp”.42 53 So, in Kovalev v Minister for Immigration and Multicultural Affairs, French J considered a consent order by which a decision of the Refugee Review Tribunal was to be set aside. His Honour addressed a number of considerations relevant to the making of consent orders which were relevant regardless whether they dispose of private litigation between persons or entities, or whether they determine proceedings by or against governments and their agencies. 54 As French J explained it, in the exercise of its judicial power, the court was not merely giving effect to the wishes of the parties, it was exercising a public function and must have regard to the public interest in doing so.43 In his Honour’s opinion, not only must the court be satisfied that a consent order is within the power of the court, it must also appear that it is appropriate to make it. Whilst it is not the function of the court to impede a settlement, that does not exempt the court from ensuring that a consent order is both within power and appropriate.44 That is especially so where the suggested error is of a kind that attracts the public interest.45 55 In the opinion of French J, the requisite approach to the making of consent orders did not necessarily require any exacting enquiry into the basis for every order, but there were certain minimum requirements, which he outlined.46 56 In the case of consent orders made by way of the compromise of a planning appeal, there is an undoubted public interest associated with the determination that the proposed development accords with the relevant planning statute and 40 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 163 (Gibbs CJ, Stephen, Mason and Wilson JJ), 167 (Murphy J). 41 Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, [43] (French, Weinberg and Greenwood JJ). 42 Australian Competition and Consumer Commission v Real Estate Institute (WA) (1999) 95 FCR 114, [38] (French J); see also Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, [43] (French, Weinberg and Greenwood JJ). 43 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [11]. 44 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [12]. 45 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [12]. 46 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [14]-[15]. -- 15 of 52 -- [2024] SASCA 58 The Court 12 instruments.47 Before the introduction of compulsory conferences under s 16 of the ERD Court Act, there was no power to enter judgment without first exercising “an independent responsibility and judgment as to the appropriateness of any order”, regardless whether this was done with or without the consent of the parties.48 57 In other jurisdictions concerning similar but not identical planning regimes, it has generally been held that the relevant court, tribunal or board should not “blindly make directions … regardless of the planning merits” and, thereby, “be a mere rubber stamp in determining appeals”.49 A similar approach has been taken in connection with a planning review proceeding in Western Australia.50 58 In the case of settlements which are to be subject to consent orders made by the Victorian Civil and Administrative Tribunal (VCAT), Croft J in John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc endorsed the approach that it is necessary for VCAT to consider the appropriateness and efficacy of the settlement proposed.51 59 Nonetheless, the ERD Court is an informal court and, criminal proceedings aside, it must conduct itself with a minimum of formality, and it may inform itself as it thinks fit. The ERD Court is not bound by the rules of evidence and it may require the makers of decisions to furnish the court with the materials which were before the decision-maker and to report on any aspect of the subject matter of the appeal.52 60 As might be expected, the ERD Court must act according to equity, good conscience and the substantial merits of the case, without regard to legal technicalities and forms.53 Sections 16 and 17 of the ERD Court Act 61 Against that background, it is appropriate to consider ss 16 and 17 of the ERD Court Act: 16—Conferences (1) A relevant Act, or the rules, may provide that proceedings of a specified class must at first instance be referred to a conference under this section. 47 Coast Protection Board v Carramatta Holdings Pty Ltd (2015) 122 SASR 409, [125]-[126] (Stanley J). 48 Twenty-Seven Properties Ltd v District Council of Noarlunga (1975) 32 LGRA 407, [410] (Wells J), following Mt Lofty Ranges Association Inc v State Planning Authority [1973] SAPR 290, subsequently followed in Elliot v Town of Walkerville (1982) 2 APA 267. 49 M & J Dowling Pty Ltd v City of Malvern (1983) 1 PABR 86, 89-90, followed in, inter alia, Nunn v South Gippsland Shire Council [2012] VCAT 1804. See, by way of example, Whitehouse Developments Pty Ltd v City of Sydney [2017] NSWLEC 1391. 50 Erujin Pty Ltd v Western Australia Planning Commission (2010) 70 SR(WA) 69, [45]. 51 John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100, [19]-[21]. 52 ERD Court Act, s 21. 53 ERD Court Act, s 21. -- 16 of 52 -- [2024] SASCA 58 The Court 13 (2) The purpose of a conference is to enable the member of the Court presiding at the conference (appointed by the Senior Judge of the Court or selected in accordance with the rules) to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing. (3) The Court may dispense with a conference if it is of the opinion that— (a) no useful purpose would be served by a conference between the parties prior to a hearing of the matter; or (b) there is some other reason that justifies dispensing with the conference. (4) A conference may, at the discretion of the member of the Court presiding at the conference, be adjourned or reconvened from time to time. (5) Unless otherwise determined by the member of the Court presiding at the conference, a conference will be held in private. (6) Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party. (7) The member of the Court presiding at a conference may— (a) if that member is a magistrate or commissioner—refer any question of law to a Judge of the Court for determination; (b) require a party to the proceedings to furnish particulars of his or her case; (c) determine who, apart from the parties to the proceedings (and their representatives), may be present at the conference. (d) subject to subsection (9), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement; (e) on his or her own initiative, close the conference at any time if, in his or her opinion, settlement cannot be reached; (f) advise the Court if the conference does not reach a settlement within a reasonable time; (g) permit a party to withdraw from the proceedings (and make any consequential order that is appropriate in the circumstances); (h) give summary judgment (with costs) against any party who obstructs or delays the conference, fails to attend the conference or fails to comply with a regulation, or a rule or order of the Court; (i) do such other things as the rules of the Court may provide. (8) Evidence of anything said or done in the course of a conference under this section is inadmissible in proceedings before the Court except by consent of all parties to the proceedings. (9) The member of the Court presiding at a conference— -- 17 of 52 -- [2024] SASCA 58 The Court 14 (a) must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and (b) may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter. (10) If the member of the Court presiding at a conference is unable to continue with the conference, another member of the Court may be appointed to continue and complete the conference. (11) Unless all parties to the proceedings agree to his or her continued participation, the member of the Court who presided at the conference is disqualified from sitting as a member of the Court for the purpose of hearing and determining the matter. 17—Parties (1) The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings). (2) A commissioner may not make an order under subsection (1) except— (a) on the application of, or with the consent of, the party to be joined; or (b) with the concurrence of a Judge. (3) An order under subsection (1) may be made on an application without notice to any person. (4) Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings— (a) dismiss or determine any proceedings that appear— (i) to be frivolous or vexatious; or (ii) to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose; (b) after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent; (c) give summary judgement against a party— (i) who obstructs or unnecessarily delays the proceedings; or (ii) who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or (iii) who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court. -- 18 of 52 -- [2024] SASCA 58 The Court 15 (4a) If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case. (4b) The Court may, in making an order under subsection (4a), determine that the costs will be determined or settled— (a) as between party and party in accordance with the scale prescribed for the purpose; or (b) as between solicitor and client. 62 Ahead of the enactment of the ERD Court Act some explanation for the operation of these provisions was given during the course of the Second Reading speech:54 One of the major aims of the Court is to retain informality, with hearings based on the merits of the case, not legal technicalities. The Bill contains a number of provisions to reinforce this objective… Clause 16: Conferences This clause is “modelled” on section 27 of the Planning Act 1982. It is envisaged that a relevant Act, or the rules, will provide that certain proceedings before the Court must at first instance be referred to a conference presided over by a member of the Court appointed to assist the parties to explore any possible means to settle the proceedings by agreement. A conference will normally be held in private… Clause 17: Parties The Court will be able to join other persons as parties to proceedings… … Clause 21: Principles governing hearings The Court is to conduct its procedures with the minimum of formality and will not be bound by the rules of evidence… 63 As envisaged by the Second Reading speech, the Environment, Resource and Development Court Rules 2003 address the conduct of conferences under s 16 of the ERD Court Act. In particular: 8.5.1 Where, during the course of a conference, the member presiding concludes that the parties have reached or may reach a settlement which will or may prejudice any person not represented at the conference but who has a direct or material interest in the proceeding to which the conference relates, the member presiding may adjourn the conference and direct the Registrar to give notice of the conference and of the proposed or probable settlement to such person and the Registrar must give notice accordingly. 54 Hansard, House of Assembly, 10 March 1993, 2443-2446 at 2444-2445. -- 19 of 52 -- [2024] SASCA 58 The Court 16 8.5.2 Any person to whom the notice has been given pursuant to this paragraph may: a) attend at the adjourned conference and participate in it; and b) apply to be joined as a party to the proceeding the subject of the conference. 64 It may be noticed that rule 8.5.1 is a little broader than s 16(9)(b) because it operates where the parties “may reach a settlement” and not merely when there has been “a settlement.” In that event the ERD Court has by the rules the power to direct that notice be given of “the proposed or probable settlement” to any person not represented at the conference who has “a direct or material interest in the proceeding.” 65 This may be contrasted with the terms of s 16(9)(b) which empower the Court to decline to accept a settlement which may materially prejudice any person not represented at the conference who has “a direct or material interest in the matter.” A direct interest is not necessarily the same as a material interest. The combination of terms suggests that what is material may be indirect. Whilst it may be that the statutory reference to “the matter” under s 16(9)(b) is broader than the reference to “the proceeding” under rule 8.5.1, it is hard to see how anything will turn on that in this and most cases. 66 What is of importance is that even if there is a compromise, under s 16(9)(b) and rule 8.5.1, the s 16 conference may not proceed and orders may not be made under s 16(7) where it is recognised that there is a person who is not represented and that person has a “direct or material interest”. Whether the ERD Court re- convenes the s 16 conference or first determines the application for joinder will be a matter for the presiding officer to determine based on the circumstances and attitudes of those before the officer, as the two limbs of rule 8.5.2 recognise. The officer may decide that it is first appropriate to address joinder then re-convene the s 16 conference to determine whether the proceeding can be settled. 67 In this way, there should be no “race” as the appellant suggested. In most cases where the applicant has both a direct or material interest (s 16(9)) and a special interest (s 88(2)(c)), it ought not matter whether the application for joinder precedes the s 16 conference or follows it. 68 In addition, whilst joinder may not necessarily result in a hearing de novo, whether there is utility in ordering joinder will turn, at least in part, on the contribution the applicant for joinder may be able to make to that kind of hearing. Necessarily, any apparent merit in the approach of the applicant for joinder will also be relevant to determining whether there is any utility in having the applicant at any re-convened s 16 conference. 69 A further feature of ss 16 and 17 of the ERD Court Act should be noticed. Each of ss 16(7), 16(9)(b) and 17(1) are predicated by the use of the word “may”. Ordinarily this implies the conferral of a discretion to perform the particular function or power specified. That is in contra-distinction to the use of words such -- 20 of 52 -- [2024] SASCA 58 The Court 17 as “must” or “shall”, which ordinarily imply that the specified function or power must be exercised. For example, s 11(1) of the Legislation Interpretation Act 2021 (SA) provides:55 11 – Meaning of may, must and shall (1) If, in an Act or legislative instrument, the word “may” or a similar expression is used in conferring a function, the entity on which the function is conferred has a discretion as to whether or not to perform it. 70 As might be expected, this orthodox approach to the discretionary exercise of a function or power may be displaced by an evident “contrary intention”.56 71 The appellant contrasted the orthodox approach to the conferral of a discretion with the approach taken by the appeal judge. After recognising that the use of the word “may” in the chapeau to s 16(7) represented a “wide and open textured discretion” which permitted the presiding officer at a conference to select “the most appropriate case management orders”,57 s 16(7)(d) was construed as requiring that a settlement be recorded and that consequential orders must be made “unless precluded … by s 16(9).”58 Although the appeal judge went on to observe that the presiding officer may decline to record a settlement for another reason, “that circumstance would rarely arise.”59 72 It will be necessary to return to the breadth of the discretion conferred by these provisions, together with the circumstances in which it may be exercised. The Development Act (now repealed) 73 By ss 32 and 33 of the Development Act the undertaking of a development is prohibited unless the relevant planning authority has assessed the proposed development and granted consent in accord with the Development Plan. 74 Before doing so, s 38 prescribes the public notice which must be given and the representations which must or may be received, which vary according to whether the development is a Category 1, Category 2, Category 2A or Category 3 development as assigned by the Development Plan or the Regulations. 55 This may be contrasted with the less emphatic terms of s 34 of the Acts Interpretation Act 1915 (now repealed): 34 – “May” imports a discretion, “shall” is imperative Where, in any Act passed after the first day of January, 1873, the word “may” is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word “shall” is used in conferring a power it implies the power must be exercised. 56 Legislation Interpretation Act 2021 (SA), s 3(3), cf Ward v Williams (1955) 92 CLR 496, 506-509. 57 Reasons, [33]. 58 Reasons, [35]. 59 Reasons, [36]. -- 21 of 52 -- [2024] SASCA 58 The Court 18 75 As has been observed, the applicants for joinder, including the appellant, are Category 2 representators. For present purposes the treatment of Categories 2 and 3 in s 38 of the Development Act is relevant: 38—Public notice and consultation … (4) Where a person applies for a consent in respect of the Development Plan for a Category 2 development, notice of the application must be given, in accordance with the regulations, to— (a) an owner or occupier of each piece of adjacent land; and (b) any other person of a prescribed class. (5) Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to— (a) the persons referred to in subsection (4); and (b) any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed; and (c) the public generally. … (7) Subject to subsection (17), where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent. … (10) In addition to the requirements of subsections (7), (8) and (9)— (a) in the case of a Category 2 development—the relevant authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation; and (b) in the case of a Category 3 development—the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation. … (12) Where representations have been made under this section, the relevant authority must— -- 22 of 52 -- [2024] SASCA 58 The Court 19 (a) give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person's appeal rights under this Act; and (b) in the case of a Category 3 development—give notice to the Court— (i) of its decision on the application and of the date of the decision; and (ii) of the names and addresses of persons who made representations to the relevant authority under this section. … (14) An appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision. … 76 Although the appeal judge suggested that the relevant planning authority had a discretion “conferred in the widest possible terms to decline to hear” from a Category 2 representor, it is clear that the relevant discretion is, in fact, one to allow a Category 2 representor to appear and be heard, see s 38(10)(a).60 77 The difference between the right of appeal conferred on a Category 3 representor, and the right of review conferred on a Category 2 representor, is reflected in the terms of the s 86 of the Development Act: 86—General right to apply to Court (1) The following applications may be made to the Court— (a) a person who has applied for a development authorisation may appeal to the Court against— (ai) any assessment, request, decision, direction or act of a relevant authority under this Act that is relevant to any aspect of the determination of the application; or (i) a refusal to grant the authorisation; or (ii) the imposition of conditions in relation to the authorisation; or (iii) subject to any exclusion prescribed by the regulations, any other assessment, request, decision, direction or act of a relevant authority under this Act in relation to the authorisation; (b) a person who is entitled to be given a notice of a decision in respect of a Category 3 development under section 38 may appeal to the Court against that decision (subject to the limitations imposed by that section); 60 Reasons, [23]. -- 23 of 52 -- [2024] SASCA 58 The Court 20 … (f) a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of a piece of adjacent land, may apply to the Court for a review of the matter with respect to— (i) a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of section 35; (ii) a decision under section 38 as to the category of the development. … (5) If— (a) an appeal is commenced before the Court against an order under section 69(1)(a); or (b) an application that involves a dispute relating to a matter referred to in subsection(1)(c) or (e) (and no other dispute) is made to the Court, the matter must, in accordance with the Rules of the Court, be referred to a commissioner or commissioners of the Court for resolution under section 87. (6) Any other application, other than an application of a prescribed class, must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). 78 It can be seen that by s 86(1)(a) a disappointed developer has a right to appeal. The same may be said of a Category 3 representor under s 86(1)(b). As has been observed, some applicants for joinder including the appellant have sought a review of the development categorisation pursuant to s 86(1)(f) of the Development Act.61 79 Section 86(1) addresses specified “applications”. Whilst s 86(6) addresses any “other application”, that means all applications other than those mentioned in s 86(5). These are references, at the least, to the appeals and reviews described in s 86(1). Whilst s 86(6) requires that these “must in the first instance be referred to a conference” under s 16 of the ERD Court Act, that conference may of course be adjourned in the discretion of the presiding officer (as occurred in this case). 80 The parties were divided on whether the right to bring a review pursuant to s 86(1)(f) could incorporate a contention that a development was seriously at variance with the relevant Development Plan. The weight of authority in the ERD 61 As the appeal judge observed, nothing turns on that for the purposes of the appeal, Reasons [25]. That is reflected by the terms of s 86(1)(f) which confers the relevant right on an owner or occupier of adjacent land. -- 24 of 52 -- [2024] SASCA 58 The Court 21 Court suggests that this contention can be advanced, though there is no need to decide that question on this appeal.62 81 Despite the breadth of the joinder power conferred by s 17 of the ERD Court Act, the parties to this appeal accepted that this was effectively constrained by the operation of s 88(2)(c) of the Development Act. Relevantly, s 88 provided: 88—Powers of Court in determining any matter (1) The Court may, on hearing any proceedings under this Act— (a) confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate; (b) affirm, vary or quash any order, notice or other authority that has been issued; (c) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit; … (da) if appropriate in the circumstances of the proceedings—make any determination or declaration, or grant any other remedy or relief as the Court thinks fit; (e) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient. (2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act: (a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged; (b) if— (i) a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or (ii) a third party is appealing against a decision to grant a development authorisation, the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account 62 Terra Group Pty Ltd v City of Port Adelaide Enfield [2015] SAERDC 26, [71]-[79] (Judge Costello); Bates v City of Holdfast Bay [2017] SAERDC 40, [24]-[32] (Judge Cole), cf Ciccarello v City of Charles Sturt [2010] SAERDC 49, [16]-[24] (Judge Trenorden). See also City of Marion v Paior (2013) 117 SASR 223, [47]-[55] (Blue J). -- 25 of 52 -- [2024] SASCA 58 The Court 22 any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit); (c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under s 37 or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant)), determine not to grant the application— (i) on the ground that the Court is not satisfied that the person has a special interest in the subject-matter of the application; or (ii) on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or (iii) on any other ground determined to be appropriate by the Court. 82 It may be noticed that the powers specified in the chapeau to s 88(1) are those which may be exercised on “hearing any proceeding under this Act.” It was accepted that a planning appeal may be regarded as a proceeding under the Development Act. 83 Whilst s 88(1) provides a broad range of powers which may be exercised in connection with any hearing, s 88(2) is concerned with the exercise of the ERD Court’s jurisdiction in proceedings under the Act. Speaking generally, any hearing ordinarily encompasses the steps leading to a final hearing.63 84 In addition, there is not usually implied any limitation in the conferral of jurisdiction or power on a court which is not contained in the provision by which jurisdiction or power is granted.64 For example, in Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc the High Court explained:65 It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.66 85 Three further features of s 88(2) should be noticed. 86 First, s 88(2)(a), which is rendered subject to s 88(2)(b), requires that the ERD Court only seek to deal with issues in dispute between the parties. The appeal judge reasoned that the ERD Court should not proceed to hear a matter de novo if to do so was inconsistent with s 88(2)(a). Having said that, however, his Honour 63 Green v Lord Penzance (1881) 6 AC 657, 669 (Lord Selbourne), 678 (Lord Blackburn); Hadid v Lenfest Communications Inc (1996) 70 FCR 403, 407 (Hill J); Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633, [103] (Rees J). 64 Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486, [10], [25] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ); A, B and C Commissioner v CFMEU (2018) 262 CLR 157, [23] (Kiefel CJ), [103] (Keane, Nettle and Gordon JJ). 65 Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421. 66 See FAI General Insurance Co Ltd v Southern Cross Exploration N.L. (1998) 165 CLR 268, 283-284, 290. See also Knight v F.P. Special Assets LTD (1992), 174 CLR 178, at page 185, 202-203, 205. -- 26 of 52 -- [2024] SASCA 58 The Court 23 acknowledged that in the generality of cases where the complaint is that a wrong decision was made on the merits it is “unlikely to be inconsistent with s 88(2)(a) to proceed to hear the matter de novo.”67 That is consistent with the terms of s 88(2)(b). 87 The second matter to be noticed is that s 88(2)(c) deals with an application for joinder by non-parties. The power is expressed in broad terms and applies to any proceedings under the Development Act which may be heard by the ERD Court. It is clear from the words in parentheses - which refer to the Crown, a relevant authority and a Category 3 representor - that the applicant for joinder will necessarily not come from within these categories, and will include those who may be described as Category 2 representors such as the appellant. 88 The relevant discretion is expressed in the negative so that the application for joinder may not be granted, for example, where the Court is not satisfied that the applicant has “a special interest in the subject-matter of the application”, see s 88(2)(c)(i). Similarly, the Court may determine not to grant the application for joinder where, “whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party.”, s 88(2)(c)(ii), or “on any other ground determined to be appropriate”, s 88(2)(c)(iii). 89 The relevant Second Reading Speech explained that the purpose of the introduction of s 88(2) in 200768 was to clarify the discretion of the court on an application for joinder to proceedings.69 Whereas the appeal judge construed s 88(2) as a “statutory confinement” of the joinder power conferred by s 17 of the ERD Court Act, it had previously been regarded as reflecting two of the criteria identified in Pitt and O’Neill, namely, the requirements that there be a special interest as well as the interests of justice.70 As will be seen, the resolution of this issue is key to the determination of this appeal. 90 The final matter, related to the second, is this. The appeal judge construed the “special interest” referred to in s 88(2)(c)(i) as being in “the matters arising on the appeal.”71 In part, it was for that reason that his Honour referred, on a number of occasions, to the necessity for an applicant for joinder to demonstrate a “direct and material interest in the appeal”.72 The appeal judge reasoned that, were it otherwise, “Category 2 representors would have been included alongside Category 3 representors” in the words in parentheses in the chapeau to s 88(2)(c).73 91 Apart from this conclusion appearing to overlook that any involvement by a Category 2 representor will usually depend on the favourable exercise of the 67 Reasons, [28]. 68 Development (Assessment Procedures) Amendment Act 2007 (SA). 69 Hansard, House of Assembly, 29 March 2007, 2256-2258 (The Hon JW Weatherill). 70 O’Neill [2008] SASC 109, [18] (Debelle J). 71 Reasons, [29]. 72 Reasons, [13]-[14]. 73 Reasons, [29]. -- 27 of 52 -- [2024] SASCA 58 The Court 24 relevant discretion for joinder, the relevant words require the demonstration of a special interest in “the subject matter of the application”. Here, the application is an appeal. To require that a special interest be shown in ‘the subject matter of the appeal’ is not the same as requiring that a special interest be shown in ‘the appeal’. The statutory phrase is broader. One must identify what comprises the subject matter of the appeal. 92 The subject matter of the planning appeal is not confined to the particular issues and arguments agitated between the parties to the appeal. It is, as a result, not confined by whether the parties are in agreement or otherwise about those. The subject matter of any planning appeal is the proposed development. Ultimately, the subject matter of the appeal is concerned with whether the development plan consent ought be given or refused for the proposed development. That is necessarily concerned with the merits of the proposal.74 Where the developer proposes a revised development, that becomes the focus of the appeal. 93 Whether development plan consent should be granted, and reflected in orders made by the ERD Court, is not merely concerned with whether the developer and the planning authority have reached a compromise. As has been seen, whether development plan consent should be granted and reflected in orders made by the ERD Court raises a public interest as well as private interests. This too is an important key to the resolution of this appeal. Relevant authorities preceding this appeal 94 It is appropriate to consider the decision of the Full Court in Pitt. The appellants in that case sought joinder to a planning appeal pursuant to s 17 of the ERD Court Act. The refusal by a judge of the ERD Court to grant the application for joinder was appealed to the Full Court. The appeal was heard together with an application for judicial review, seeking an order in the nature of certiorari to quash the decision of the ERD Court. 95 The appellants lived close to the Calvary Hospital in North Adelaide. The hospital sought planning approval for a large development. Approval was refused and this was appealed to the ERD Court, which had only recently been established. When the appellants applied to be joined to that appeal, the ERD Court judge found that he had jurisdiction to make the order for joinder, but he refused it in the exercise of his discretion. 96 The Full Court allowed the appeal, finding that the ERD Court judge erred in refusing to make an order for joinder pursuant to s 17 of the ERD Court Act. 74 As was recognised by the appeal judge, Reasons [29], though contrast. Reasons, [30]-[31]. -- 28 of 52 -- [2024] SASCA 58 The Court 25 97 Whilst Doyle CJ agreed with Duggan J (with whom Nyland J agreed), he expressed his own views on the scope of the power conferred by s 17 of the ERD Court Act. The Chief Justice explained:75 The power of making an order for joinder under s 17 involves making a judgment in the light of the facts of the case before the ERD Court. Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interests which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right in the public interest in the prompt and efficient dispatch of proceedings. In addition, of course, there will in each case be other factors particular to the case. 98 The Chief Justice acknowledged that the appellants had no right of appeal and that an order for joinder would necessarily have an effect on the proceedings before the ERD Court:76 The interests represented in the proceedings are no longer confined to the applicant, for planning approval and the planning authority. But that is the inevitable consequence of any order for joinder. The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join. In my opinion the impact for an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made. 99 Chief Justice Doyle then addressed the nature of the interest which the applicant for joinder was required to establish. This was determined in a context where the joinder power in s 17(1) of the ERD Court Act was expressed in a broad and open way. As Doyle CJ explained:77 The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course. 100 More particularly, Doyle CJ rejected the proposition that a restrictive approach to the making of an order for joinder should be taken merely because the order permitted involvement in the proceedings and this was not permitted by the relevant planning legislation then in force. 75 Pitt (1995) 66 SASR 274, 275. 76 Pitt (1995) 66 SASR 274, 275-276. 77 Pitt (1995) 66 SASR 274, 276. -- 29 of 52 -- [2024] SASCA 58 The Court 26 101 Nonetheless, Doyle CJ also held that it would be “equally wrong” to order joinder simply on the basis that the applicant for joinder could demonstrate the existence of an interest which would give standing for judicial review.78 To the same effect, he explained that it was not sufficient that the applicant could demonstrate an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v The Commonwealth.79 Rather, it was necessary to establish both a sufficient interest and factors which would make it appropriate to make an order for joinder. 102 It will be recalled that in Australian Conservation Foundation the High Court addressed the question of standing by adopting a test which required the party seeking standing to demonstrate “a special interest in the subject matter of the action”, and cited a number of authorities, both in Australia and England, in support of that test.80 103 In Pitt, after Doyle CJ found that there was an error of law which vitiated the exercise of discretion to order joinder he agreed, on balance, with Duggan J that it was appropriate for the Full Court to resolve the question of joinder. 104 The Chief Justice generally agreed with the approach taken by Duggan J to the question whether joinder should be ordered. Although conscious of the fact that the Full Court should not lightly set out to exercise the functions of a specialist court, he thought that the factors outlined by Duggan J in favour of joinder were “compelling”. In the circumstances, it was unnecessary to order relief in the proceedings for judicial review.81 105 In the course of his reasons, Duggan J rejected the proposition that the test for joinder required the demonstration of “special circumstances” as that was too narrow. He favoured the view that the applicant for joinder was required to demonstrate “a special interest in the subject matter of the action”, relying on Australian Conservation Foundation.82 Nonetheless Duggan J emphasised that a special interest would not, by itself, justify an order for joinder. As his Honour went on to explain, consistently with the approach taken by Doyle CJ, an applicant for joinder also needed to establish other factors which made it appropriate to make an order for joinder. 106 When explaining the nature of the interest to be established, and the approach of the ERD Court, Duggan J explained that it was a proper exercise of the powers 78 Pitt (1995) 66 SASR 274, 276. 79 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 518 (Australian Conservation Foundation). 80 Australian Conservation Foundation (1980) 146 CLR 493, 522 (Gibbs J), citing Anderson v The Commonwealth (1932) 47 CLR 50, 51-52 (Gavan Duffy CJ, Starke and Evatt JJ); London Passenger Transport Board v Moscrop [1942] AC 332, 345 (Viscount Maugham) and Gouriet v Union of Post Office Workers [1978] AC 435, 482 (Lord Wilberforce), 514 (Lord Edmund-Davies). 81 Pitt (1995) 66 SASR 274, 277. 82 Australian Conservation Foundation (1980) 146 CLR 493, 527. -- 30 of 52 -- [2024] SASCA 58 The Court 27 of the ERD Court to exclude mere meddlers or “busy bodies” from the proceedings.83 107 Whilst Duggan J thought that it was an “essential starting point” for the exercise of discretion to determine whether the applicant for joinder had a “genuine interest in the appeal”, this observation followed the distinction he had already drawn in favour of the test described in Australian Conservation Foundation, being a “special interest in the subject matter of the action”.84 Duggan J incorporated both of these concepts into his analysis of the requisite interest of the applicant for joinder, emphasising that these alone would not warrant joinder. 108 Indeed, that Duggan J had in mind an interest of the kind described in Australian Conservation Foundation is reinforced by the way in which he later approached the identification of the interest of the appellants in the case before him. After referring to “the relevance of a genuine interest”85 and the fact that the appellants were at risk of an order being made which would prejudicially affect their interests, Duggan J explained that he had already pointed out that “standing by itself such an interest might not lead to a successful application under s 17”.86 The use of the words “by itself” in this passage is revealing. This passage and these words referenced the earlier passage in his reasons where Duggan J had referred to Australian Conservation Foundation:87 … a situation in which the applicant has “a special interest in the subject matter of the action” (Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 527) although I am not suggesting that the latter circumstance, by itself, would justify the making of an order for joinder. 109 Apart from Australian Conservation Foundation, Duggan J cited Petroleum Refineries (Aus) Pty Ltd v Archer Boulton Pty Ltd regarding the necessity for a genuine interest.88 In that case there was, amongst other processes, an application to be joined to a planning appeal pursuant to s 30(1) of the Planning Act 1982 (SA) (now repealed). As in this case, the applicants for joinder were adjoining land-owners whose interests were likely to be affected depending on the disposition of the planning appeal. It was observed in that case that representors had frequently been given the opportunity of applying to be joined where they had expressed opposition to a proposal and there had been a planning appeal. Amongst other things, this enabled representors to participate in a conference held under the Act between the parties. 83 Pitt (1995) 66 SASR 274, 281, citing R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407, 422. 84 Pitt (1995) 66 SASR 274, 281. 85 Pitt (1995) 66 SASR 274, 282. 86 Pitt (1995) 66 SASR 274, 282. 87 Pitt (1995) 66 SASR 274, 281. 88 Petroleum Refineries (Aust) Pty Ltd v Archer Boulton Pty Ltd (1991) 55 SASR 510 (Matheson J) (Petroleum Refineries). -- 31 of 52 -- [2024] SASCA 58 The Court 28 110 It was also submitted that there were cases where planning authorities had “agreed to a compromise” in which case, without joinder, representors might have no say about what later took place. 111 It was in that context that Matheson J found that the plaintiffs in the case before him had a genuine, bona fide interest in the planning appeals. It is clear from the reasons he gave that Matheson J took into account other matters, including the likely contribution the applicants for joinder might make by way of examining witnesses or making submissions. It was not sufficient, his Honour found, that the Tribunal could call witnesses (including the plaintiffs as representors who were objecting to the development), because that would not enable any cross-examination on behalf of the plaintiffs of the other witnesses called, nor authorise the making of submissions on behalf of the plaintiffs.89 112 After referring to Petroleum Refineries, in Pitt Duggan J explained that the requisite interest would arise if an order could be made on appeal which would “prejudicially affect the interest of the person applying to be joined”.90 His Honour did not again refer to what he had earlier said about a special interest and a genuine interest. Duggan J rejected the proposition that considerable weight should be given to the absence of any right of appeal in the applicants for joinder. As he explained:91 However this consideration would apply to all applicants for joinder. The circumstance which necessitates an application for joinder, the absence of an appeal as of right, cannot be used as an argument against joinder. 113 Justice Duggan explained that it was relevant to take into account the extent to which the proposed development would affect the applicants for joinder. He explained that they lived in a residential area in close proximity to the hospital, a large and busy institution. The size and scale of the development had the potential to affect the amenity of the applicants “to a significant degree and may well reduce the values of their properties”.92 114 Justice Duggan then referred to the history of the involvement of the applicants for joinder in the development application, describing the representations they had made with the assistance of expert reports and submissions from senior counsel:93 The matters which were then raised are relevant to the subject matter of the appeal before the ERD Court. All this suggests that the ERD Court would derive some benefit from the continued involvement of the appellants whilst indicating, at the same time, the appellants’ genuine interest in the issues to be debated at the hearing of the appeal. 89 Petroleum Refineries (1991) 55 SASR 501, 522. 90 Pitt (1995) 66 SASR 274, 281. 91 Pitt (1995) 66 SASR 274, 281. 92 Pitt (1995) 66 SASR 274, 282 93 Pitt (1995) 66 SASR 274, 282. -- 32 of 52 -- [2024] SASCA 58 The Court 29 115 There were other relevant considerations, and these included ensuring that the proceedings did not become protracted or unduly cumbersome. Duggan J then addressed what he termed the “floodgates argument”.94 Of course consideration must be given to the problem of allowing too ready access under s 17. However I do not think that the particular facts of the present case permit its use as an undesirable precedent in this respect. Furthermore I think there has been an acknowledgment in recent times of the justice of community involvement in planning applications. The commendable practice of the City Council in this case in permitting submissions from persons potentially affected by proposed developments is an example. Another example is the Development Act 1993 itself. Section 38 provides for discretionary consultation in the case of Category 2 developments and compulsory consultation in the case of Category 3 developments. It is worth noting that s 17 does not allow a person in the position of the appellants to initiate an appeal: the joinder application, of its nature, can be made only after an appeal has been initiated by a party enjoying a right of appeal. 116 As can be seen, the floodgates argument was addressed in part by the fact that only a party could initiate an appeal and a Category 2 representor could only apply for joinder once that was done. Justice Duggan concluded:95 In my view the appellants’ genuine interest, the type of development, the potential the development has to substantially affect the interests of the appellants, their prior involvement in the development application, the nature of the issues which they would raise on appeal and the unlikelihood that their participation would unduly prolong the appeal, all combine to make this a proper case for joinder. 117 It should be noticed that in this passage Duggan J included both the appellants’ genuine interest as well as the potential for the development to “substantially affect [their] interests” in his recitation of the circumstances relevant to considering the question of joinder. That is consistent with the approach of Doyle CJ who, it will be recalled, had described the necessity to establish a “sufficient interest”, together with other factors which made it appropriate to order joinder, pointing out that an interest which passed the test for standing approved in Australian Conservation Foundation would alone not be sufficient.96 118 In these circumstances, it is clear that in Pitt neither Duggan J (with whom Nyland J agreed), nor Doyle CJ, held that a genuine interest was sufficient to warrant joinder by a non-party to a planning appeal under s 17 of the ERD Court Act. That is made clear by the reference both judges made to Australian Conservation Foundation, the necessity for an applicant for joinder to demonstrate an interest sufficient to warrant joinder, and the need to establish other factors which justified an order being made. 119 That view of Pitt is consistent with the view later taken in OneSteel.97 As Debelle J explained in that case, by reference to the reasons of Doyle CJ in Pitt:98 94 Pitt (1995) 66 SASR 274, 282. 95 Pitt (1995) 66 SASR 274, 283. 96 Pitt (1995) 66 SASR 274, 276. 97 OneSteel (2005) 92 SASR 67, [20]-[26] (Debelle J). 98 OneSteel (2005) 92 SASR 67, [20] (Debelle J). -- 33 of 52 -- [2024] SASCA 58 The Court 30 Three aspects of those reasons require emphasis. The first is that an order for joinder should not be made simply on the basis of an interest sufficient to give standing for judicial review. Secondly, regard will be had to the nature and strength of the interest in the decision under appeal and to the contribution which the applicant for joinder is likely to make to a proper resolution of the issues. The third is a reflection of the second. It is whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the persons already before the court. It is not enough for the party seeking to be joined to say it is able to call evidence. It must be demonstrated that the evidence is the kind of evidence which cannot be adduced by the parties already before the court and that the evidence is relevant to the issues before the court. At the same time, the court should not take an unduly restrictive approach to the question of joinder. The issue should not be approached in a rigid or inflexible manner … 120 Indeed, the reference in this passage to both the interest sufficient to give standing for judicial review and the nature and strength of the applicant’s interest is similar to the approach Debelle J later described in O’Neill, albeit by reference to “the special interest in the subject matter of the appeal” under s 88(2)(c) of the Development Act.99 121 As has been pointed out, following the decisions of Pitt and OneSteel, s 88(2) was introduced into the Development Act. The operation and effect of that provision was squarely in issue in O’Neill. The appellants, Mr and Mrs O’Neill, were the owners of land on Seaview Road at Tennyson. The respondents, Mr and Mrs Kimhi, owned adjoining land on Seaview Road at Tennyson. The Kimhis applied for provisional development plan consent to construct two large, four storey semi-detached dwellings on their land, covering most of it. The development would be very close to the side boundary, and along almost the entire length, of the land of Mr and Mrs O’Neill. 122 The relevant council classified the proposed development as a Category 2 development and, after the O’Neills were given notice as adjoining owners, they lodged a representation opposing the proposed development. The council refused development plan consent. Mr and Mrs Kimhi appealed to the ERD Court. The O’Neills applied to be joined as parties. That application was refused by an ERD Court judge. The appeal before Debelle J was against the refusal to order joinder. 123 While the joinder appeal was pending, the Kimhis proceeded with their ERD Court planning appeal. The Commissioner held a conference pursuant to s 16 of the ERD Court Act at which the O’Neills were permitted to be present. The matter did not resolve and the conference was re-listed. 124 In the absence of the O’Neills, a Commissioner of the ERD Court made an order on the application of the Kimhis, with the consent of Council as the planning authority, approving amended plans albeit subject to certain conditions. This occurred only a matter of days before the joinder appeal was heard by Debelle J in the Supreme Court. 99 O’Neill [2008] SASC 109, [17]. -- 34 of 52 -- [2024] SASCA 58 The Court 31 125 Justice Debelle addressed the nature of the joinder power conferred by s 88(2)(c) of the Development Act:100 Section 88(2)(c) invests the [ERD Court] with a wide discretion. The court has power to refuse an application for joinder if the applicant does not have a special interest in the application or if, whatever the interest of the applicant, the court is not satisfied [that] the interests of justice require the applicant be joined, or for any other ground determined by the court to be appropriate. Notwithstanding the width of that discretion, it must be exercised within the scope and ambit of the Development Act, the Development Regulations and the Development Plan. 126 Justice Debelle observed that this provision concerned joinder where the development application was for a development other than a Category 3 development and, therefore, it applied to both Category 1 and Category 2 developments. Debelle J explained:101 The terms of s 88(2)(c) do not create a presumption against joinder in the case of developments that are Categories 1 or 2. Instead, they state that an applicant for joinder will not succeed if he fails to establish a special interest or fails to persuade the court that the interests of justice require that he be joined. In a particular case, it might be sufficient if he satisfies the court of only one of those factors. 127 Justice Debelle then reviewed the decisions in Pitt and OneSteel before observing:102 Section 88(2)(c) picks up two of the criteria identified in Pitt and in Onesteel, namely, special interest and the interests of justice. In my view, this appeal can be determined by reference to those two criteria. 128 Debelle J reasoned that there was “no doubt” that the O’Neills had a special interest in the subject matter of the appeal because they resided in a dwelling on land adjoining the proposed development. Because the development was a Category 2 development they received notice from council and they took up the opportunity of being heard, lodging a representation opposing the development. The proposed development was of a height and bulk that would cause overshadowing. That was particularly relevant where the O’Neills held a development consent for alterations and additions designed to exploit the full benefit of the light and warmth available on the northern aspect of their property. There were other factors. These led Debelle J to conclude that the O’Neills had “an immediate and special interest in the subject matter of the appeal” and that the same considerations meant that it was “in the interests of justice that they be joined”:103 … These are sufficient reasons why the O’Neills should have been joined as parties. 100 O’Neill [2008] SASC 109, [12]. 101 O’Neill [2008] SASC 109, [14]. 102 O’Neill [2008] SASC 109, [18]. 103 O’Neill [2008] SASC 109, [19]-[20]. -- 35 of 52 -- [2024] SASCA 58 The Court 32 It might be added that, as a general rule, an adjoining neighbour will always have a sufficient interest in an application to justify joinder. 129 It is relevant to observe that the potential for settlement between the Kimhis as developers and the Council as planning authority was explicitly addressed by Debelle J when considering whether to order joinder. The ERD Court judge had found that the case for the O’Neills coincided with the case for the Council and that the Council was willing to call Mr O’Neill to give evidence. Debelle J held that whilst there was, to some degree, overlap between the cases for the Council and the O’Neills they did not have a common interest:104 While the Council’s role in the appeal was to defend its decision and to seek a development which accords with planning principle, the Council might be willing to agree a modified proposal. The O’Neills’ interest was to modify the proposal in a manner satisfactory to them and, if not modified, to oppose the development. There may well be issues where the interests of the O’Neills will conflict with the interests of the Council or, at least, will diverge from them. The judge ought also to have considered the fact that it is not uncommon on an appeal in the Environment Court for a Council to agree a modified development proposal and that the modified proposal is not always to the satisfaction of an adjoining owner. It cannot be assumed, therefore, that the Council will maintain its opposition to the proposed development and continue to represent the interests of the adjoining owner. It is prudent, therefore, to proceed on the footing that the Council might accede to a modification of the proposal so that the preferred course is to join the adjoining owner as a party to the appeal. 130 Justice Debelle concluded that the ERD Court judge had erred in relying upon an asserted common interest and that it was not possible to conclude that the O’Neills would not lead evidence additional to that adduced by Council. The appeal was allowed and an order for joinder was made. The approach of the parties to this appeal 131 The appellant’s Notice of Appeal ran to 24 grounds of appeal. Some of those grounds contained numerous particulars. Some were concerned with what might be described as background matters or contextual propositions, and yet others represented variations on other grounds. In the event, a number of grounds were abandoned. 132 Quite apart from the proposition that it is most unlikely that the appeal judge made 24 separate errors, the breadth of the grounds tended to demonstrate that the appeal notice was not confined to the articulation of those essential errors which were material to the favourable disposition of the appeal to this Court. Whilst the approach of the appellant became clearer in written and oral argument, it would have assisted an understanding of the appellant’s case if the essential errors which were said to be material to the disposition of the appeal had been distilled in the notice and grounds of appeal from the outset. 104 O’Neill [2008] SASC 109, [24]. -- 36 of 52 -- [2024] SASCA 58 The Court 33 133 The respondent helpfully endeavoured to condense the appellant’s appeal grounds into five propositions. Those propositions were:105 1. First, s 17(1) of the ERD Court Act is not constrained by either ss 16(7) and 16(9) of the ERD Court Act, or s 88(2)(c) of the Development Act, and giving such a construction to s 17(1) does not subvert the statutory scheme for public consultation provided by ss 38, 53 and 86 of the Development Act. Section 16(7) does not impose a duty on the Court to enter a settlement reached between the parties to the appeal, subject only to s 16(9), and s 88(2)(c) does not require that joinder not be permitted in any of the circumstances identified in s 88(2)(c)(i) – (iii). 2. Secondly, and in any event, Category 2 representors and any owners or occupiers of neighbouring land have a “special interest” within the meaning of s 88(2)(c)(i), and a relevant “interest” within the meaning of s 16(9)(b) of the ERD Court Act. 3. Thirdly, the Chief Justice’s reasoning creates, in practical effect, a temporal race between the developer seeking to resolve an appeal and an objector seeking joinder. The race is to see who gets in first, the developer with the settlement or the objector with the joinder order. How this is relevant to the question of the proper construction of ss 16 and 17 is not apparent. 4. Fourthly, the issue before the ERD Court was whether development plan consent should be granted or refused in respect of the proposed development. The necessary consequence of this contention appears to be that an appeal, once instituted, cannot be discontinued or dismissed, even by agreement, without the Court proceeding to determine the issue raised by the appeal, although the consequences of this for Mr Moloney’s Application are not altogether clear. 5. Finally, the Chief Justice erred in failing to give adequate reasons for rejecting Mr Moloney’s contention that s 16(7)(i) of the ERD Court Act when read with rule 8.5 of the Environment Resources and Development Court Rules 2003 (ERD Court Rules) broadened the persons who could be joined to those with “a direct or material interest in the proceeding to which the conference relates”, which included Mr Moloney. 134 Whilst these represented a more manageable approach to what might otherwise be regarded as an unwieldly set of appeal grounds, they did not represent the precise scope of the cases presented on appeal. For example, the first of these five propositions, consistently with appeal ground 1, essentially suggested that it was an error not to apply s 17 of the ERD Court Act. That was not the way the matter was argued. The matter was argued on the basis that s 88(2)(c) of the Development Act applied, but that its application bore key similarities to the 105 Footnotes omitted. -- 37 of 52 -- [2024] SASCA 58 The Court 34 approach previously taken under s 17 of the ERD Court Act and the appeal judge failed to adhere to that approach. 135 This appeal can be determined by addressing two key questions which underpinned the approach of the appeal judge: 1. Whether the appeal judge was correct to find that for the purposes of s 88(2)(c)(i) of the Development Act the appellant should not have been joined because the appellant did not have a special, direct or material interest in the appeal. 2. Whether the appeal judge was correct to find pursuant to s 16 of the ERD Court Act that the respondent was entitled to have its settlement with the planning authority reflected in orders made by the ERD Court. Associated with this proposition is the question whether the appellant could be said to have “a direct or material interest in the matter” for the purposes of s 16(9)(b) of the ERD Court Act. 136 Having stated these questions it must be recognised that, strictly, all that falls for decision on this appeal is whether the appeal judge was correct to find that the ERD Court erred in its approach to the determination of the application for joinder pursuant to s 88(2)(c) of the Development Act. 137 In circumstances where no application had been made for the compromise between the respondent and the planning authority to be reflected in orders of the ERD Court at a conference conducted under s 16 of the ERD Court Act, the scope and operation of ss 16 and 17 of the ERD Court Act are relevant only as context to a proper understanding of the statutory scheme under which the planning appeal proceeded and in which the joinder application must be considered. 138 The resolution of these two questions determines the outcome of this appeal. That is because they represent the essential bases on which the appeal judge found that the ERD Court had made errors of law which vitiated its order. 139 They also informed the appeal judge’s rejection of the approach taken by the ERD Court to the exercise of its discretion. For example, although the appeal judge found that the ERD Court erred in considering that the applications for joinder were premised on the basis that there would be a de novo hearing on the merits, this was bound up in his Honour’s treatment of s 16 of the ERD Court Act. 140 Indeed, and with respect, the central error in the approach of the appeal judge was to determine the question of joinder by reference to s 16 of the ERD Court Act, using s 88(2)(a) of the Development Act merely as an “additional statutory warrant for limiting joinder.”106 106 Reasons, [16]. -- 38 of 52 -- [2024] SASCA 58 The Court 35 141 Absent express reference, one does not usually regard the words of one Act as determining the meaning of the words used in another Act. Neither the ERD Court Act nor the Development Act make explicit reference to each other on the topic of joinder. Having said that, it was relevant to consider the proper meaning and effect of the provisions of each statute when examining the intended operation of the statutory scheme in contemplation.107 142 It was necessary for the appeal judge to commence with s 88(2)(c) of the Development Act and determine whether, in the accordance with its terms, the ERD Court erred in finding that there was a proper case for joinder. The analysis could not properly commence with s 16 of the ERD Court Act. Whilst the effect of the compromise, and the way in which that may eventually be addressed under s 16 of the ERD Court Act, was relevant, it was of secondary or contextual relevance to the analysis of the ERD Court’s treatment of the application for joinder. 143 The respondent filed a notice of contention in the following terms: 1. The ERD Court’s analysis of the prejudice to the respondent that would arise from granting joinder, culminating in a finding that the prejudice is ‘inevitable’, was erroneous. 2. The ERD Court erroneously accounted, or failed to account, for the public interest in the efficient disposition of proceedings. 3. The ERD Court’s power to join parties to a dispute pursuant to s 17 of the ERD Court Act and s 88 of the Development Act, is a judicial power. The judicial role of the Court is to quell or determine a controversy, not create or inflame one. To grant joinder where no controversy exists is an exercise of non-judicial power. 4. The ERD Court misconstrued the ERD Court Act and misunderstood the nature of its role by granting joinder which was a “disproportionate” response to the issue raised of ERD Court jurisdiction pursuant to the Lady Becker principle and therefore an erroneous exercise of power. 144 These contentions generally went to the exercise of discretion by the ERD Court, and most can be addressed in the course of addressing the second question. It is appropriate to address each of the two questions. 107 As was done in Nguyen v The Queen [2022] SASCA 25 regarding the interaction between the Sentencing Act 2017 (SA) and the Criminal Procedure Act 1921 (SA), as well as in NL v Chief Executive of Department for Child Protection [2023] SASCA 20, regarding the interaction between the Children and Young People (Safety) Act 2017 (SA) and the Youth Court Act 1993 (SA). In that sense this case is not really one calling for the application of the principles described in Conservation Council of WA Inc v Dawson [2019] WASCA 102, [84]-[85] nor Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77, [99]ff. -- 39 of 52 -- [2024] SASCA 58 The Court 36 First question: joinder under s 88(2)(c) of the Development Act 145 Critical to the question of whether the ERD Court should have favourably exercised its discretion to order joinder under s 88(2)(c) of the Development Act is whether the court should find that the appellant had “a special interest in the subject matter of the application” or whether, regardless of his interest, the ERD Court was not satisfied that “the interests of justice” required that the appellant be joined as a party.108 146 Those questions are not answered by asking whether the appellant had a direct or material interest in the appeal, as appears from the appeal judge’s reasons.109 To commence the inquiry in that way involved posing a question different to the words of the requisite statutory test. It is no answer to suggest that there may be similarities between the tests applicable under each Act.110 147 The issue is not whether the applicant for joinder has a special interest in the appeal. The issue is whether the applicant for joinder has a special interest in the subject matter of the appeal, being the proposed development and the question whether development approval should be granted for the revised proposal. Sub-section 88(2)(a) 148 Insofar as the appeal judge addressed s 88(2) of the Development Act, his Honour principally relied on s 88(2)(a), which provides that the ERD Court should only seek to deal with and resolve those issues in dispute between the parties.111 149 There are four points to be made about his Honour’s reliance on this provision. First, it is wrong in principle to do other than commence with the terms of s 88(2)(c) of the Development Act. Whilst s 88(2)(a) may represent part of the relevant context, assisting in the determination of the likely meaning and effect of s 88(2)(c), that was not the way in which this issue appears to have been addressed. 150 Secondly, s 88(2)(a) is explicitly rendered subject to s 88(2)(b) which confers on the ERD Court a discretion to proceed to consider the matter de novo in the case of a developer’s planning appeal (s 88(2)(b)(i)). Thirdly, this provision is also rendered explicitly subject to cases where the ERD Court considers it necessary to consider any aspect of the decision which has not been challenged when it considers that it “necessary or appropriate to do so”. 151 Fourthly, even in cases where there has been a compromise by the parties to the planning appeal, it is not accurate to say that there remains no extant controversy. Unless and until the ERD Court finally determines that it is both empowered and appropriate for it to enter consent orders the controversy is not 108 The third limb – whether there was any other ground for refusal – did not feature in the arguments before the ERD Court, the appeal judge or this Court. 109 Reasons, [13]-[14]. 110 Indeed, that kind of approach did not feature in the decision under appeal to this Court. 111 Reasons, [16]. -- 40 of 52 -- [2024] SASCA 58 The Court 37 quelled.112 Sub-section 88(2)(a) does not stipulate otherwise. It is in this respect that the ERD Court is no mere “rubber stamp”. 152 In general terms, the joinder of a non-party does not alter the essential issue between the parties on a planning appeal, which is whether the development, or any revised development proposal, should be granted development plan consent. That the respondent and SCAP may be in agreement about that in this case did not relieve the ERD Court from having to determine whether orders could and should be made reflecting that agreement. 153 Whether development plan consent should be granted is not quelled by a compromise and that controversy or issue remains extant unless and until orders are made by the ERD Court. Whilst the introduction of another party may alter the forensic context in which that must be considered, and the new party may have issues to raise about development plan consent that the existing parties choose not to raise, those must necessarily be directed to the essential issue. 154 Having said that it is not necessary, as the appellant suggested, that the ERD Court address whether any material error was or was not made in connection with the decision which led to the planning appeal because, ordinarily, the compromise will result in a new proposal and obviate the need to proceed in the ordinary way concerning the original decision. Only if the earlier proposal is for some reason reagitated would it be necessary to rule on it. Distinguishing Pitt and not following O’Neill 155 Before addressing other aspects of the decision under appeal arising out of this first question, it is first helpful to consider the ways in which it was determined that neither Pitt nor O’Neill were of assistance. As will be seen, the failure to adhere to the principles outlined in those decisions, in favour of an approach that put s 16(9) of the ERD Court at the forefront of the inquiry on joinder, represented a very marked departure from the approach which has applied over a period of nearly 30 years. This new approach should not be followed. 156 One difficulty with the new approach is, with respect, that it failed to recognise that the statements of principle laid down by the Full Court in Pitt remained applicable notwithstanding any compromise. Moreover, the terms of s 88(2)(c) reflected two of the considerations which the Full Court outlined in Pitt, albeit then for the purposes of s 17 of the ERD Court Act. The introduction of s 88(2), and particularly s 88(2)(c), did not require the abandonment of the approach articulated in Pitt. 157 The appeal judge distinguished Pitt because the Full Court did not consider a compromise between the developer and the relevant planning authority. Accordingly, his Honour found, a number of the matters identified by Doyle CJ 112 A justiciable controversy continues until quelled by the exercise of judicial power, Abebe v Commonwealth (1999) 197 CLR 510, [164]. -- 41 of 52 -- [2024] SASCA 58 The Court 38 required “close attention to the scope of the controversy before the court”.113 Whilst that may be so, the implication in this new approach to joinder is that these matters may be of little or no relevance in the event of a compromise. As has been explained, even in the case of a compromise, there remains an extant controversy unless and until development planning consent has been granted and orders have been made. 158 The appeal judge was concerned that an order for joinder effectively conferred a right of appeal that was not otherwise recognised by the Development Act:114 It is however difficult to say that a party with no legal right to appeal against a development plan consent has not been given a de facto ability to do so if they are joined to an appeal which has been compromised with the agreement of the relevant authority that development authorisation should be given. 159 This consideration was, however, answered directly by Doyle CJ and Duggan J in Pitt because the Full Court addressed the proposition that granting the application would effectively confer a right of appeal where none was otherwise given. Moreover, the Full Court also considered the impact on the proceedings of an order for joinder because of the risk of new or different issues being advanced, as well as any consequent delay which may tend to undermine the public interest in the prompt and efficient dispatch of planning proceedings.115 160 Properly viewed, the fact of a compromise represents a circumstance which bore on the consideration of the principles outlined by the Full Court in Pitt but it did not outflank them nor render them otiose. 161 Moreover, insofar as the appeal judge considered the approach of Doyle CJ and Duggan J in Pitt, and contrasted it with the terms of s 88(2)(c) of the Development Act, which requires that the ERD Court be satisfied that the applicant for joinder have a special interest in the subject matter of the application, it was not recognised that this requirement was in large measure reflected in the reasons of the Full Court addressing the requirement for a genuine and sufficient interest, following Australian Conservation Foundation (though noting, of course, that this, though necessary, was not sufficient of itself to warrant joinder). 162 For these reasons, the approach of the Full Court in Pitt remained of relevance notwithstanding the introduction of s 88(2) of the Development Act. 163 In so far as the appeal judge declined to follow the approach outlined by Debelle J in O’Neill, there are, respectfully, a number of difficulties. First, the clarification provided by s 88(2) of the Development Act concerning the power to join conferred by s 17 of the ERD Court Act was described as a “statutory 113 Reasons, [47]. 114 Reasons, [49]. 115 Reasons, [46]. -- 42 of 52 -- [2024] SASCA 58 The Court 39 confinement of the widely expressed power” considered in Pitt.116 It is here that the failure to address the precise terms in which the Full Court in Pitt required that an applicant for joinder demonstrate a genuine and sufficient interest in the subject matter of the application becomes acute. Properly viewed, s 88(2)(c) essentially reflected the approach articulated by the Full Court in Pitt and, as Debelle J recognised, two of the three criteria were adopted: that is, the identification of a genuine and sufficient interest may broadly be equated with a special interest and the interests of justice remain relevant. The third criterion, that joinder may be refused on any other ground determined to be appropriate by the ERD Court, is probably implicit but was recognised in the necessity to have regard to any other factors particular to the case.117 164 Secondly, the appeal judge was wrong to reject the approach articulated in O’Neill insofar as it recognised that s 88(2)(c) invests the ERD Court with a wide discretion and did not create any presumption against joinder in the case of developments that are Categories 1 or 2.118 Properly viewed, there was little difference between Debelle J and the appeal judge regarding the operation of s 88(2)(c). That is to say, the ERD Court has a discretion when determining an application for joinder and, in the ordinary course, the ERD Court will refuse joinder unless an applicant can demonstrate a special interest in the subject matter of the application (s 88(2)(c)(i)) or, whatever the interest of the applicant, the ERD Court is not satisfied that the interests of justice require joinder (s 88(2)(c)(ii)) or, joinder should be refused on any other ground determined to be appropriate by the ERD Court (s 88(2)(c)(iii)). 165 Nonetheless, it may be preferable to say that whilst the ERD Court is given a broadly expressed power to refuse joinder, an application will ordinarily succeed where the applicant demonstrates the existence of a special interest in the subject matter of the appeal, the interests of justice favour joinder and there is no other ground on which it is appropriate to refuse joinder. That approach is reflected in the ruling in O’Neill that the terms of s 88(2)(c) state that an applicant for joinder may not succeed in the event of a failure to establish any of the three matters just mentioned.119 166 However, and regardless of the scope for debate about semantics in the operation of s 88(2)(c), the reason why the appeal judge declined to follow O’Neill was that Debelle J did not take into account the fact of the compromise between the Kimhis and the Council concerning a revised development proposal. That is, he did not address the “critical effect of the settlement on the exercise of the discretion to join”.120 As has been seen, however, Debelle J expressly considered 116 Reasons, [55]. 117 Pitt (1995) 66 SASR 274, 275 (Doyle CJ). 118 Reasons, [56], referring to O’Neill [2008] SASC 109, [12], [14]. 119 Reasons, [56], O’Neill [2008] SASC 109, [14]. 120 Reasons, [57]-[59]. -- 43 of 52 -- [2024] SASCA 58 The Court 40 the consequences of a potential compromise, reasoning that it represented a circumstance in favour of joinder. 167 In circumstances where the essential reasoning in O’Neill followed Pitt, was not plainly wrong and had stood for over 15 years, it should have been followed. In any event, that reasoning remains essentially correct and applicable. Other matters 168 A matter that weighed heavily with the appeal judge was that joinder was considered by the ERD Court against the assumption that there would be a hearing on the merits. 169 To some extent this has been answered. Whether there will be a hearing on the merits will depend on the approach taken by the ERD Court to what is proposed. That is, it will depend upon the attitude of the ERD Court to the issues as they are presented to it. For example, even in the event of a compromise and absent joinder, the ERD Court may determine that it is not appropriate to continue by way of a conference under s 16 of the ERD Court Act. That may be especially so should the ERD Court entertain doubt about the legality or merit of what is proposed and compromised. 170 Alternatively, and in the event that an order for joinder were made, it would remain a matter for the ERD Court to determine whether and to what extent it was necessary to proceed by way of a hearing de novo on the merits. Indeed, the extent to which the objections of the applicants for joinder appear to have merit and warrant consideration would be relevant both to the exercise of the discretion to order joinder as well as the nature and extent of any hearing that might follow joinder. 171 Two further matters should be mentioned. The appeal judge took the view that, if s 16(9) of the ERD Court Act did not stand in the way of recording the settlement, the presiding officer was bound to record the settlement and to make consequential orders with the result that there would be “no hearing, and certainly no de novo hearing, of the merits of the planning application”.121 In the view of the appeal judge, the ERD Court should first have determined whether the appellant had a direct or material interest in the appeal. On this basis, the order for joinder was criticised because the appellant, as a Category 2 representor and party, “could veto the settlement”.122 172 To allow joinder did not permit the applicant for joinder to veto any compromise. As has been explained, notwithstanding the existence of a compromise it remained necessary for the ERD Court to be satisfied that it was empowered and appropriate for the ERD Court to make orders giving effect to the compromise. If the ERD Court declined to give effect to the compromise that 121 Reasons, [15]. 122 Reasons, [15]. -- 44 of 52 -- [2024] SASCA 58 The Court 41 would not be because of any “veto” exercised by an applicant for joinder (such as the appellant), but because it was not appropriate, having regard to the terms of the relevant legislation and planning instruments, to grant development plan consent. 173 Next, and insofar as the appeal judge held that the applicants for joinder had no right to be joined but merely a procedural entitlement to be notified and to provide written submissions, this involved a mischaracterisation of the rights available to an applicant for joinder in connection with a Category 2 development. That applicant also has the right to seek a review under s 86(1)(f) and apply for joinder under s 88(2)(c), though that entails no right to be joined absent the favourable exercise of the ERD Court’s discretion.123 174 Further, and insofar as the appeal judge relied on s 16(9) of the ERD Court Act to countermand the reasoning concerning s 88(2)(c) in O’Neill, there is no need to repeat the criticisms earlier made about that approach. 175 Whilst the principles laid down by the Full Court in Pitt were expressed in an open way, and s 88(2)(c) is expressed in the negative, the same essential features and considerations remain common. Though Pitt did not concern a compromise, Doyle CJ and Duggan J each recognised that the relevant considerations would depend upon the particular circumstances of the case. Moreover, O’Neill was a case where a potential compromise was not only considered but had occurred by the time the appeal to the Supreme Court was heard. 176 The preferable approach required recognition that the statements of principle laid down by the Full Court in Pitt continued to be relevant notwithstanding the fact of a compromise. As both Doyle CJ and Duggan J in Pitt held, it was necessary but not sufficient that the Court be satisfied that the appellant had a genuine and sufficient interest, which may be described as a special interest, in the subject matter of the application. Unless that could be demonstrated, the application should be refused. 177 Whilst the observation by Debelle J in O’Neill that, as a general rule, an adjoining landowner will be able to demonstrate a special interest in the subject matter of the planning appeal is probably too broadly expressed, the special interest of an adjoining owner will be readily demonstrated where the proposed development is likely to have a materially deleterious, and not merely trivial, impact on the amenity and value of the adjoining owner’s property. Also relevant will be the extent of the adjoining landowner’s engagement in the process prior to joinder. 178 Nonetheless, whilst necessary, demonstrating a special interest would not be sufficient. It was also necessary to consider whether, whatever the interest of the appellant, the ERD Court should refuse joinder because it was not satisfied that the interests of justice required joinder. Finally, it was also necessary for the ERD 123 Cf Reasons, [18]. -- 45 of 52 -- [2024] SASCA 58 The Court 42 Court to consider whether it should refuse joinder on any other ground determined by it to be appropriate. 179 Fundamentally, there was a failure to recognise that the appellant had demonstrated a special interest in the subject matter of the planning appeal. The circumstances established before the ERD Court, including the fact of the compromise, did not require that joinder be refused, whether viewed from the perspective of the interests of justice or on any other ground determined to be appropriate by the ERD Court. Second question: s 16 of the ERD Court Act 180 As has been explained, the approach of the appeal judge to s 16 of the ERD Court Act formed the centrepiece for the conclusion that the order for joinder should be set aside. As earlier explained, it was necessary to address s 88(2)(c) of the Development Act directly and not through the lens of s 16 of the ERD Court Act. 181 Moreover, s 16(7)(d) did not require that the presiding officer record a settlement and make consequential orders unless precluded from doing so by s 16(9) of the ERD Court Act.124 Quite apart from the fact that the power to record a compromise is expressed in discretionary terms, it remained necessary for the ERD Court to determine whether it was empowered and appropriate to make orders, the effect of which were to grant development planning consent for the revised proposal. 182 Viewed more broadly, however, it must also be recognised that s 16 was introduced at the same time as s 17 of the ERD Court Act. Section 16 has not previously been considered to have the pervasive effect now suggested, notwithstanding its co-existence with s 17 for nearly 30 years. 183 The purpose of a s 16 conference is explained by s 16(2): it is to enable a member of the ERD Court to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing. The ERD Court otherwise has a broad power to dispense with the conference, for example, if it is of the opinion that no useful purpose would be served by it or where there is some other reason that justifies dispensing with it, s 16(3). So as to assist the possible resolution of matters, a conference will be held in private unless the presiding member determines otherwise, s 16(5). That is reinforced by the stipulation in s 16(8) that evidence of anything said or done in the course of a s 16 conference is inadmissible except with the consent of all parties to the proceedings. 184 By s 16(6), a settlement entered into by counsel or any other representative appearing for a party is binding on the party. Whilst this kind of implication is 124 Reasons, [35]. -- 46 of 52 -- [2024] SASCA 58 The Court 43 generally made in the case of legal representatives,125 the broader effect of this provision ensures that a party is also bound by “any other representative”. 185 As outlined earlier, s 16(7) outlines a suite of orders that may be made and powers that may be exercised by the presiding member at a conference in the exercise of the member’s discretion. The range of orders and powers may be further expanded by s 16(7)(i), insofar as the rules of the ERD Court may provide for “other things” that may be done by the presiding member at a conference. 186 The discretionary nature of the power conferred by s 16(7)(d), together with the requirement that the ERD Court not make any order unless it is empowered and appropriate to do so, demonstrate that there is no mandatory requirement that the presiding member record a settlement and make consequential orders giving effect to it. Granted, in a case where the proposed settlement and consequential orders appear to be both within power and appropriate, it is unlikely that the presiding member will do other than give cursory consideration to whether the power should be exercised.126 187 By contrast, an obvious example of a case where the s 16(7) power will not be exercised is where the presiding member has reason to doubt either the power to make the consequential orders or the appropriateness of doing so, notwithstanding that they represent the product of a compromise. 188 More relevantly for the present appeal, the power in s 16(7)(d) is expressly rendered subject to s 16(9). That provision is in two parts. The first part is mandatory and prevents the presiding member accepting a settlement that appears to be inconsistent with any relevant Act, s 16(9)(a). By contrast the second part is expressed as a discretion, s 16(9)(b). It posits as the pre-condition for its exercise an evaluative question. That question is whether the settlement may materially prejudice a person not represented at the conference who has “a direct or material interest in the matter”. The purpose of this phrase is to identify who should be given notice and thereby an opportunity to participate in the s 16 conference, or seek joinder, or both. 189 The appeal judge confined the operation of this phrase in two ways when addressing the question of joinder. First, the relevant question was posed as whether the person had a “direct or material interest in the appeal”, rather than whether the person had “a direct or material interest in the matter”.127 Secondly, s 16(9)(b) was confined to Category 3 representors, being the “paradigm case of a person with a direct and material interest …”.128 125 Harvey v Phillips (1956) 95 CLR 235, 242-243; Police v Mahon [2022] SASCA 76. 126 John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2022] VSC 100, [20]-[22] (Croft J), “at a relatively cursory level”. 127 There is no need to repeat what was earlier said about the use of the word “proceeding” in r 8.5.1. 128 Reasons, [37]-[38]. -- 47 of 52 -- [2024] SASCA 58 The Court 44 190 Whilst the appeal judge acknowledged that s 16(9) was not in terms limited to persons notified of a Category 3 development, he concluded that those notified of Category 2 developments were not “persons with a direct or material interest in the compromise of a proponent’s appeal against a refusal of development consent”.129 In contrast to the effect of the approach taken in Pitt and O’Neill, the appeal judge held that a direct or material interest in the matter “cannot be found in the effect of the development on the amenity of nearby premises”.130 That was so notwithstanding:131 A Category 2 representor may well be interested in the outcome of a planning appeal because of the effects of the development on the amenity of their premises but that is not to be equated with a direct or material interest in the appeal. 191 The appeal judge was fortified in this approach by the consequences of a contrary construction which would unnecessarily complicate and prolong the process of giving effect to a development consent where there has been a compromise. Also important to his Honour’s approach was that a Category 3 representor, and not a Category 2 representor, had an appeal as of right. 192 Respectfully, there are a number of difficulties with the approach taken. First and foremost, the clear words of s 16(9)(b) were narrowed by resort to implications which find no expression in the ERD Court Act. Secondly, the approach to the interests of a Category 2 representor and the effect of the joinder of that party is contrary to the approach taken by the Full Court in Pitt nearly 30 years ago, and in O’Neill more than 15 years ago. Both Doyle CJ and Duggan J emphasised that the effect of joinder, and whether the appeal would be unduly prolonged, were relevant but not necessarily determinative considerations. Debelle J followed that approach. 193 Finally, but perhaps most importantly, there is no textual or contextual warrant for confining the operation of s 16(9)(b) the ERD Court Act, and its reference to those with a direct or material interest, to Category 3 representors. The statutory language is that there be a “direct or material interest in the matter”, not the appeal. As earlier explained, an interest which is material may nonetheless be indirect. In addition, it is well recognised that a “matter”, including any justiciable controversy within it, is not synonymous with the legal proceeding in which it may be determined.132 194 Whilst the preferable view is that the direct or material interest must be found in the matter and not merely the appeal, the relevant question in this case was whether a Category 2 representor who is not represented at a s 16 conference can be said to have a direct or material interest in whether the proposed or revised 129 Reasons, [39]. 130 Reasons, [37]. 131 Reasons, [39]. 132 Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398, 408, [43]-[44], citing Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, [37] and Re Wakim; Ex parte McNally (1999) 198 CLR 511, 585, [138]-[139]. See also CGU Insurance Ltd v Blakeley (2016) 259 CLR 339, [44]. -- 48 of 52 -- [2024] SASCA 58 The Court 45 proposal should be approved. That was the issue raised by the respondent’s Notice of Appeal to the ERD Court and it necessarily involved a proper application of the provisions of s 33(1)(a) of the Development Act, together with the mandate to assess the development against the provisions of the Development Plan.133 That issue is not determined by asking whether the absent party has a right to appeal. 195 As with the question of joinder, the real issue is bound up in whether the absent person, usually a representor, has a direct or material interest in whether approval should be granted. The scope for the development to deleteriously impact the amenity and value of the property owned or occupied by Category 2 representors, together with any demonstrated interest in the merits of the proposal and whether it should be approved under the applicable planning law and instruments, demonstrated the existence of a direct or material interest in the matter for the purposes of s 16(9)(b) of the ERD Court Act, together with a special interest in the subject matter of the planning appeal for the purposes of s 88(2)(c)(i) of the Development Act. 196 The appeal judge found that the ERD Court erred in assuming that there would be a hearing de novo on the merits. The short answer is that whether the ERD Court made that assumption did not show that it had made a material error. This was only regarded as an error where it was suggested that the effect of ss 16(7) and 16(9) of the ERD Court Act conferred what amounted to a right to avoid that kind of hearing by having orders made that gave effect to the compromise. 197 Having identified the relevant issues, the ERD Court found that the applicants for joinder would likely make an appropriate contribution to the proper resolution of the proceedings which would not traverse the contribution likely to be made by SCAP. Indeed, that contribution is likely to be important where SCAP had not referred the revised proposal to a relevant referral authority under s 37 of the Development Act and reg 20 of the Development Regulations 1993 was not followed because it was thought the “variations … are not substantial” (reg 20(1a)). 198 Whether the matter proceeds to a hearing de novo on the merits will depend on what next occurs. As earlier outlined, it will be for the ERD Court to determine whether it has power to approve the revised development proposal as well as whether it is appropriate to enter orders to that effect, or by contrast proceed with a s 16 conference or a hearing on the merits, or both.134 Even if it is thought that a hearing de novo is likely, the ERD Court may still wish to explore the possibility of settlement at a re-convened s 16 conference so as to gauge the attitude of the parties, before deciding the preferable course to be taken. Discretionary decisions such as these are best left to the ERD Court in the management and conduct of its business. 133 Gibbs v City of Charles Sturt (2010) 176 LGERA 341, [44] (Bleby J). 134 ERD Court Reasons, [102], [107]-[108]. -- 49 of 52 -- [2024] SASCA 58 The Court 46 199 As for the notice of contention, once it was determined that the appellant had a special interest, in the circumstances it was not inappropriate to order joinder. The matters highlighted in the notice of contention were taken into consideration by the ERD Court. At the heart of the notice of contention lies the proposition that these matters required that the application for joinder be refused. That proposition should be rejected. Whether the ERD Court invited the appellant to address it as intervenor so as to address issues such as the possible infringement of the Lady Becker principle, or ordered joinder to facilitate that course, was essentially a matter for the exercise of the discretion of the ERD Court. It was not bound to proceed in the limited way suggested, nor was it required to insist that the appellant take judicial review proceedings. Indeed, it would be relevant to those proceedings that there exists a procedural vehicle recognised by the relevant legislation and the rules to address these kinds of issues.135 200 Finally on the notice of contention, the ERD Court made no error when assessing the prejudice associated with making the order for joinder, as well as in evaluating the public interest in the efficient disposition of planning proceedings. Even if one allows for the proposition that the appellant will not agree to the revised proposal, that does not mean that the ERD Court will not explore settlement at a re-convened s 16 conference, or that any planning appeal will be unduly prolonged. 201 Assuming that the matter does not resolve, whether there is a contested merit appeal (as the respondent described it) will depend on the apparent strength of the objections. If there is no merit in them then the challenge will fail and the compromise will, in effect, likely be approved. If there is merit in the objections, then the core difficulty for the compromise will remain that it did not represent an appropriate resolution of the planning issues at stake. 202 The prospect that joinder might ultimately unearth that core difficulty, and be associated with some delay, does not mean that joinder should have been refused, or that it was not in the public interest to ensure that the merit of what was proposed be publicly examined by the ERD Court in accordance with the relevant planning law and instruments. The notice of contention should be dismissed. Disposition of the appeal 203 The appeal judge erred in the approach taken to the construction of both s 88(2)(b) of the Development Act and s 16(9)(b) of the ERD Court Act. Strictly, it was necessary to address whether an order for joinder for should be made having 135 See, for example, R v Marshall [2023] SASCA 105, [177] (Livesey P, David JA and Kimber AJA), citing McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [81] (Doyle J); Ibrahim v Medical Board of Australia [2015] NSWCA 207, [75] (referring to “the well-established principle that relief of the kind available under s 69 of the Supreme Court Act 1970 (NSW) will not generally be granted if there is another equally effective and convenient remedy, such as here, the right of appeal from a decision of the Board to the Tribunal …”); Victorian Workcover Authority v BSA Limited & Ors [2017] VSCA 276, [10]. -- 50 of 52 -- [2024] SASCA 58 The Court 47 regard to the terms of s 88(2)(b) rather than consider whether there was an obligation in the ERD Court to implement the compromise under s 16(7). 204 In fact, s 16(9) was not directly relevant to the disposition of the joinder application though it was relevant for the ERD Court to consider the relevance and impact of both the compromise and joinder. In that sense, ss 16(7) and 16(9) were relevant as part of the statutory framework in which the rights and interests of the parties and the applicants for joinder fell to be determined. 205 Once those errors of law are recognised and corrected, it is clear that the appellant in this case demonstrated the existence of a special interest under s 88(2)(c)(i) of the Development Act, as well as a direct or material interest under s 16(9)(b) of the ERD Court Act. 206 It follows that the ERD Court made no error of law in its approach to the question of joinder. 207 As for the exercise of its discretion, it was suggested that excessive weight was given to the prospect that there might be a de novo hearing on the merits as well as the assistance that the appellant (together with the other applicants for joinder) may be in a position to provide. Once the appellant’s proper standing is recognised, and it is appreciated that the compromise is a relevant but not decisive circumstance, it is difficult to discern error in the exercise of discretion to order joinder. 208 Once an order for joinder is made, the ERD Court will consider the compromise and the consequential orders sought with the assistance of a contradictor. On the face of it there may, at the least, be real issues about whether the revised proposal is seriously at variance as well as whether it was “substantially different” from the original plan and, thereby, in breach of the Lady Becker principle.136 The applicants for joinder are likely to be in a position to assist the ERD Court with these matters, whether at a s 16 conference or in a hearing de novo on the merits, or both. Conclusion 209 The appeal should be allowed. The notice of contention should be dismissed. 210 The orders made by the appeal judge should be set aside and those made by the ERD Court should be restored. 136 City of Marion v Lady Becker (1973) 6 SASR 13, 28, 24 and 26 (Wells J). See also 44 (Bray CJ), 58 (Hogarth J) and 62, 67 (Zelling J). In Independent Holdings Ltd v City of Adelaide Planning Commissioner (1994) 63 SASR 318, 327, Millhouse J considered whether the revision altered “the essential character of the proposed development”. The ERD Court has since generally posed the question as whether the revision is “fundamentally different in character”, Citify Pty Ltd v Corporation of the City of Marion [2021] SAERDC 30, [32]; Clarke v District Council of Grant [2016] SAERDC 36, [51]. -- 51 of 52 -- [2024] SASCA 58 The Court 48 211 It will be necessary to hear from the parties as to costs. -- 52 of 52 --