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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-11-01 Daily Xml
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Town of Gawler

The Hon. A. PICCOLO (Light) (15:16): Planning and development issues would have to be one of the most contentious areas of public policy for both decision-makers and those who are affected by those decisions. It is not an exact science. Having said that, it is incumbent on decision-makers, particularly those in public office, to ensure those affected by planning and development decisions are well informed, engaged and treated with respect.

At times, decision-makers have to say no to an application for very good reasons. This does not take away from their responsibility to act in good faith and, when matters enter the legal system, to act as model litigants. Public decision-makers do not have the right to use their power and resources to the detriment of either individuals or the community where there is clearly a huge imbalance of power.

I provide those comments as background to a matter I am about to bring to the attention of the house because I believe a local government authority's use of the legal system represents, in my view, an abuse of power and process and is a waste of ratepayer and taxpayer moneys. It is, in my opinion, an unnecessary action that is designed to impose its will over a particular resident who had the temerity to use a legitimate planning process to have a matter assessed by the local council.

The facts, as I understand them, are as follows—and I will refer to the decision made by His Honour Senior Judge Durrant in the Environment, Resources and Development Court on 21 September 2023 in the case of Town of Gawler Assessment Manager v Brunt. On 8 November 2021, local resident Ms Andrea Brunt applied electronically to the assessment manager for the Town of Gawler for planning permission to create an additional allotment from her land.

When the legislative time frame for assessment of her application expired, she uploaded a deemed consent notice. The assessment manager considered the notice ineffective and then went on to refuse her application. Ms Brunt then appealed the purported refusal to the ERD Court, as is her right. The Town of Gawler contested the appeal. A drawn out conciliation process then took place. The court was critical of the council's conduct during the conciliation process. The matter was drawn out, to the financial detriment of Ms Brunt.

During the appeal process, the Town of Gawler acknowledged that the deemed consent notice was actually effective, and the decision-maker then lodged an action in the court to be granted an extension of time to lodge an appeal to argue the merit of the development application and why the deemed consent should be refused. I further understand that the applicant—that is, the resident—did submit a compromise to the court, which was rejected by the council representative. The council had 30 days to lodge that appeal but did so four months late.

The request for an extension of time was refused by the ERD Court for a range of reasons. This must be done within one month, unless the ERD Court in its discretion extends the time. Aggrieved by the ERD Court decision, the Town of Gawler's assessment manager has lodged an appeal in the Supreme Court to overturn the ERD Court decision and be granted an extension of time to lodge an appeal to have the deemed consent quashed.

In my opinion, this decision to lodge an appeal in the Supreme Court is harsh, unreasonable and oppressive and is seen as the council imposing its will on a local resident. I hold this view because the matter rests on the specific facts of the case and does not pose a risk or threat to the planning policy for the locality. It sets no precedent, nor does it expose the community to the risk of rampant unwanted development. Through their own inaction, the council did not take advantage of the fail-safe provisions provided by law.

To add insult to injury, the council made a range of decisions about this matter in secret, thus lacking transparency and preventing accountability. The decision also raises serious questions about a possible conflict of interest. The ERD Court was critical about the conduct of the council officer involved, yet the very same council officer is the one who has made the decision to take the matter to the Supreme Court.

It is now November 2023, and Ms Andrea Brunt, the applicant and resident, applied for a simple land division in November 2021. No wonder many local residents do not have confidence in the council to handle planning and development issues effectively. I believe this matter warrants investigation by the relevant authorities because it raises serious questions about governance at the council.

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