Merits appeals cover the situation where someone is unhappy with a decision to approve (or reject) a development application. This type of appeal seeks an order of the Environment Resources and Development Court to overturn or alter that decision. These actions are limited to certain types of development and qualifications exist as to who is entitled to appeal.

Whether or not you have a right to appeal against a development approval depends on whether you are the applicant or a third party (such as a neighbour). It also depends on the categorisation of the development. Only impact assessed development (restricted) development ( as set out in the Planning and Design Code) can be appealed by third parties(representors). An applicant for development authorisation has a right to appeal to the ERD Court against a refusal to grant development approval or against any conditions attached to that approval. The appeal must be instituted within two months after the applicant receives notice of the decision. The court has a discretion to extend this time limit in special circumstances. [Planning, Development and Infrastructure Act 2016 (SA) s 204].

In addition, an applicant also has a right of appeal against any other assessment, request, decision, direction or act of a relevant authority under the Act in relation to the development authorisation [Planning, Development and Infrastructure Act 2016 (SA) s 201(d) and Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 47].

A third party (a person other than an applicant or a relevant authority) who makes a written representation on a proposed impact assessed (restricted) development has a right to appeal against that decision or any conditions attached to it. A person who disagrees with a decision of a relevant authority, but who has not taken the opportunity to lodge a written representation during the public comment period is not entitled to appeal. It is not necessary to make a verbal representation before lodging an appeal [ see s 110(2)(a)(iv)]. Notice must be given to the public generally, including by notice placed on the relevant land. A notice to the public generally must also be given by publishing a notice on the SA Planning Portal [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 47(8)].

A response to a representation must be made by the applicant within 15 business days after the relevant material is forwarded to the applicant, or within such longer period as the relevant authority may allow [r 51(1)]

An appeal by a third party must be commenced within 15 business days after the date of the decision in the application. It may take the relevant authority a week or more to notify representors of the decision; however it is the date of the decision, not the date of notification which starts the fifteen day appeal period.[s 110(7)]. The court must then notify the applicant for development approval that the appeal has been lodged and that person automatically becomes a party to the appeal, as does the relevant authority which made the decision appealed against [s 110(8)].

Where a third party appeals, the development cannot proceed until the appeal is dismissed, struck out or withdrawn or the questions raised by the appeal finally determined by the Court. [s 110(9)]. Most appeals are first dealt with at a preliminary conference of the Court before being listed for trial. Most development disputes are resolved at or prior to the preliminary conference.

Under the Act, the ERD Court may allow parties to participate in a hearing by means of telephone or video link if the circumstances are appropriate [Planning, Development and Infrastructure Act 2016 (SA) Schedule 6 Cl 18].

If it appears that a relevant authority has made a mistake in categorising the development ( eg. accepted development instead of code assessed development development) a person who is an owner or occupier of land on or adjoining the site of the proposed development can institute proceedings in the Environment Resources and Development Court to have the issue of categorisation determined [s 202(1)(g)]. Such proceedings must be instituted within two months after the landowner or occupier receives notice of the council’s decision on the proposed development. [s 204(1)]. The court has discretion to extend this time limit in special circumstances. If successful, the process of development assessment would need to be started again, with the appropriate level of public notification undertaken where necessary.