A recent decision of the Environment, Resources and Development Court has highlighted the need for development applications to be made in the name of a real person or legal entity.
‘In Property Design’ (a registered business name), lodged a development application with the City of West Torrens. The Council refused the application and a Notice of Appeal was then filed in the name of the appellant, David Thomson, who was the sole proprietor of ‘In Property Design’. The Council later accepted a compromise proposal from Mr Thompson and a Consent Order was subsequently granted by the Court. The Consent Order, however, listed ‘In Property Design’ as the appellant – not Mr Thompson.
These discrepancies formed the basis for a third party application by two neighbours seeking to, amongst other things, have the Consent Order set aside. The neighbours argued that the discrepancy rendered the Consent Order a nullity, as it was made without jurisdiction. They argued that Mr Thompson had no statutory right to commence the appeal in his name.
His Honour Judge Costello rejected the applicants’ submissions on the basis that there is no requirement under the Development Act 1993 or Regulations for an applicant lodging a development application to be a person (i.e. a real person or legal entity), but the Act does require it when lodging an appeal against a refusal. ‘In Property Design’, being a business name and not a body corporate, lacked the capacity to lodge an appeal. As Mr Thompson was the proprietor of ‘In Property Design’, he was the only person realistically capable of instituting an appeal. While His Honour accepted that it would have been ideal if the appeal (if not the initial application) were instituted in the name of ‘David Thompson trading as In Property Design’, the failure to do so did not render the proceedings a nullity.
For further information about this judgment, please contact James Levinson on 8212 9777