City of Burnside & Ors v City Apartments Pty Ltd - [2004] SASC 294

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CITY OF BURNSIDE & ORS v CITY APARTMENTS PTY LTD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Gray)
22 September 2004
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA
Council refused an application for provisional development planning consent for construction of a dwelling - The Environment, Resources and Development Court ("ERD Court") granted consent for the plan subject to a number of conditions - whether the ERD Court failed to give proper consideration to provisions of the development plan relating to preservation of natural character, bushfire safety and minimisation of excavation and filling - whether ERD Court failed to consider whether placing the development at a different site on subject land would better satisfy provisions of the development plan - appeal dismissed.
Development Act 1993 (SA) s 33, s 39(4)(a), s 88, referred to.
City of Mitcham v MOL Pty Ltd (2003) 89 SASR 279, considered.

CITY OF BURNSIDE & ORS v CITY APARTMENTS PTY LTD
[2004] SASC 294
Full Court: Doyle CJ, Nyland and Gray JJ

DOYLE CJ
Summary
City Apartments Pty Ltd (“City”) applied to the City of Burnside (“the Council”) for provisional development planning consent for the construction of a detached dwelling, with associated earth works and road works, retaining walls and landscaping. The land on which City proposed to erect the dwelling is at the western extremity of part of the Hills Face Zone (“the HFZ”) in the Development Plan for the City of Burnside (“the Plan”).
The Council refused the application. City appealed to the Environment, Resources and Development Court (“the ERD Court”). Mr and Mrs Hall were joined as respondents to the appeal. City intended to take access to the proposed dwelling along a right of way over the Halls’ land. The Halls opposed the grant of the consent.
The ERD Court granted provisional development plan consent subject to a number of conditions. The Council and the Halls have appealed against the decision.
The main issue on appeal is whether the ERD Court failed to give proper consideration to provisions of the Plan that state that development in the HFZ should preserve and enhance, or re-establish the natural character of the zone; should minimise the threat and impact of bushfire and should minimise the excavation and filling of land.
The submission for the appellants is that the ERD Court failed to consider in a meaningful way whether placing the development at a different site on the subject land would satisfy the provisions of the Plan relating to bushfires and excavation and visual intrusion by presenting less of a bushfire risk and involving less excavation and less visual intrusion, compared with the proposed site. They submit that the relevant provisions of the Plan required the ERD Court to consider alternative locations on City’s land, and that the ERD Court had to be able to find that there was no alternative site on the land for the proposed development that would reduce the bushfire risk and the amount of excavation and visual intrusion compared with the proposed site. It was argued that this approach was required because of repeated references in the relevant provisions of the Plan to the need to minimise these matters. The ERD Court considered other possible sites in a general way, but did not embark on a detailed examination of the alternatives. Mr Hayes QC for the Council and Mr Henry for the Halls argued that the failure to do so was an error of law. Alternatively, they argued that the evidence before the ERD Court was such that it could not be satisfied that the proposed development would minimise the bushfire risk, the visual intrusion and the amount of excavation involved, as required by the Plan.
Mr Henry also argued that if a detailed comparison of the possible sites was undertaken, all relevant advantages and disadvantages of the alternative sites had to be considered, and this meant that the ERD Court should have considered the impact of the proposal on the amenity of the locality, on neighbours and on the Halls’ right of way in particular. In short, the ERD Court had to decide whether the alternative site would be better or worse in planning terms than the proposed site. It had not done this.
To some extent the Council and the Halls put a case on appeal to this Court that was not put before the ERD Court.
The argument that the ERD Court erred in law in its approach to the assessment of the proposal provided a platform from which Mr Henry in particular tried to re-argue the detail of the assessment of the proposal against the Plan. It is well established that this Court does not re-visit the planning judgment made by the ERD Court with a view to substituting this Court’s planning judgment for that of the ERD Court. The role of this Court is to correct errors of law or principle, or a substantial departure from the proper approach to the assessment of a proposed development.
I am satisfied that the ERD Court did not err in its approach to the assessment of the proposal. Nor in the course of its assessment of the proposal did it make any significant error. This Court should not re-visit the detail of the assessment of the proposal against the Plan, reversing the decision of the ERD Court should it differ from its ultimate conclusion. In any event, I find no reason to differ from the ERD Court’s conclusion.
The HFZ
Having regard to the issues argued on appeal, it suffices to refer to four aspects of the Plan relating to the HFZ.
The text of the portion of the Plan that relates to the HFZ contains the following statement:
“The western slopes of the Mount Lofty Ranges in metropolitan Adelaide are an important natural asset to both the population of the urban area and the tourism industry. Development which is undertaken in this zone should not only preserve but should also enhance the natural character of the zone or assist in the re-establishment of a natural character.”
Reflecting that statement, two Objectives for the zone are stated. The material portion of Objective 1 is as follows:
“A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:
(a)provide a natural backdrop to the Adelaide Plains and a contrast to the urban area;
(b)preserve and develop native vegetation and fauna habitats close to metropolitan Adelaide;…”
The provisions of the Plan relating to the HFZ put considerable emphasis on preserving the natural character of the zone. As to that the text of the Plan states:
“The term “natural character” refers to the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape”.
As Debelle J said in City of Mitcham v MOL Pty Ltd [2003] SASC 166; (2003) 85 SASR 279 at [27]:
“Thus, when determining whether a proposal should receive development consent, more weight is to be given to the question whether the proposal assists in preserving, enhancing or re-establishing the natural character than to a comparison with existing development in the locality.”
Objective 2 is as follows:
“A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:
(a)preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;
(b)limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plains;
(c)not create, either in themselves, or in association with other developments, a potential demand for the provision of services at a cost to the community; and
(d)prevent the loss of life and property resulting from bushfires.”
The more significant parts of Principle 8 are the following:
“Buildings, including structures, should be located in unobtrusive locations and, in particular, should:
(a) be located well below the ridge line;…
(f)be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building;
(g)be located in such a way as to be screened by existing native vegetation when viewed from the roads within the zone or from the metropolitan area particularly the Adelaide Plains;…”
Consistently with Objectives 1 and 2, Principle 2 states in part:
“The excavation and/or filling of land should:
(a)be kept to a minimum so as to preserve the natural form of the land and the native vegetation;…”
Principle 14 relates to bushfire risk, and begins with the following general statement:
“The location and design of a building should be such that the bushfire risk is minimised and, in particular, should be such that:..”
The subparagraphs of Principle 14 elaborate particular matters that have to be considered in relation to bushfire risk.
In short, the provisions of the Plan emphasise preserving and enhancing or re-establishing the natural character of the zone, ensuring that development is unobtrusive and that excavation is kept to a minimum, and minimising bushfire risk.
The Land
The land is a large allotment on the western face of a spur of the Mount Lofty Ranges. It has views of the Adelaide Plains. The ERD Court said that to the west, the east and the south of the land there are large allotments with detached dwellings. This is a portion of the HFZ in which there is a fair amount of residential development. The only access by road to the land, as things stand, is along a right of way across land owned by the Halls. However, the southern boundary of the land abuts an unmade portion of a public road, Gill Terrace.
The Halls would prefer the development to be sited further west than it is, and lower on the subject land. In particular, as I understand it, they would prefer vehicular access to be taken from Gill Terrace so that vehicles entering and leaving the subject land are not required to use the right of way across their land.
The land has little native vegetation, and such as there is mainly at the western end of the land. Most of the vegetation, and the most visible vegetation, is exotic or introduced. There are a number of olive trees on the land.
The proposed development
The proposed development involves the erection of a single storey dwelling on an excavated site. Excavation will also be necessary to create a driveway on the land, and an area to manoeuvre vehicles. The proposal includes the removal of non-native vegetation, and the extensive planting of native vegetation.
The ERD Court’s reasons
In the proceedings before the ERD Court the Council and the Halls argued that the land would not be sterilised if the ERD Court refused to give consent. They argued that there were other possible sites for the development further west and lower down on the land. They argued that those other sites, being lower down than the proposed site, would involve a lesser risk of damage from bushfire, would mean that the development was less obtrusive, and possibly that there would be less excavation. However, no specific alternative site was identified and assessed against the Plan in any detail by any party. Their case was not that another and preferable site (in planning terms) had been identified, but rather that it could not be said there was no such site, with the result that the use of the land would be sterilised if consent was refused.
It is fair to say, based on the submissions we heard, that other possible sites for the development on the land presented their own problems in relation to access, the extent of excavation and impact on native vegetation. In particular, there are significant problems in obtaining access from Gill Terrace. This is due to the fall of the land and the steep grades involved.
On the basis of the material before this Court it is doubtful whether it is practical to carry out the proposed development significantly lower down on the land, or to provide vehicular access from Gill Terrace.
It does appear that the case was conducted before the ERD Court by the Council and the Halls on the basis that the refusal of consent would not necessarily sterilise the land, and not on the basis that other specific sites had been or could be identified which, when all relevant matters were considered, would better conform with the provisions of the Plan relating to the HFZ. The argument based on a consideration of other sites was given more emphasis before us than it got before the ERD Court. The argument became that consent could not properly be given unless it was shown that a preferable site (in planning terms) could not be found. Unless this were shown, the grant of consent could not be supported. In that respect, a different case was put to this Court. On the other hand, it is also fair to say that the case presented by City before the ERD Court did not exclude the possibility that another site might be found that would better conform with the provisions of the Plan. No party grappled with this issue in any detail.
The ERD Court referred to the possibility of an alternative site, to some of the difficulties with the argument based on an alternative site, and said at [36]:
“It is not our task to compare the proposed development with a hypothetical development which is not proposed. Our task is to make a planning assessment of the proposed development. We comment, however, that it is easy in broad principle to assert that an alternative site would be better than what is proposed, but the detailed design of such a proposal may give rise to complications which are not obvious at first glance.”
This was said by Mr Hayes and Mr Henry to be an error of principle.
A detailed landscaping plan was tendered during the hearing. The ERD Court was clearly impressed by the extent of the proposal in this respect. It said at [20]:
“The landscaping plan which forms part of the proposed development goes well beyond the kind of landscaping scheme which is ordinarily associated with a proposal for a dwelling. Very often, a landscaping plan is subordinate to the plan for the dwelling. In this matter, the scale of planting is such that the landscaping of the site is an element of the proposal in its own right. This is not a matter in which the function of the landscaping is to hide the buildings. In our assessment, the landscaping plan, as a substantial component of the proposed development, will go a very significant way towards re-establishing the natural character of the area on the site.”
As to the proposed excavation, the ERD Court said at [35] that:
“…the extent of the excavation and filling proposed complies sufficiently with Principle 2 for the Hills Face Zone.”
I will have to return to the issue of bushfire risk. No expert witness was called on this point. However, the Council tendered some correspondence from Mr Menadue, who was apparently accepted as an expert on the matter. The circumstances in which this material was tendered by consent will have to be considered. In the last of these letters Mr Menadue said:
“Repositioning of the dwelling to the lower slopes of the allotment reduces the bushfire risk and potential bushfire threat.”
However, the material from Mr Menadue did not identify a particular site, nor did it explain to what extent and in what manner relocating the proposed development would reduce the bushfire risk.
As to this the ERD Court said at [28]:
“Several letters from the Country Fire Service (“CFS”) in relation to various proposals on the land were tendered. We are satisfied that the proposed development is sufficiently in compliance with the above quoted provisions with respect to bushfire safety to be acceptable. If a condition of approval is imposed with respect to the species of plants to be planted close to the dwelling, by reference to their mature height, we are satisfied that the concerns of Mr Menadue of the CFS can be met.”
The ERD Court found at [31] that the impact upon the Halls, in particular from the use of the right of way, was acceptable in planning terms.
The ERD Court concluded that consent should be granted. It summarised its conclusions at [37] as follows:
“- The extensive landscaping which forms part of the proposed development will make a substantial contribution towards re-establishing the natural character of the land, in compliance with Objective 1 and Principle 1 of the Hills Face Zone.
-The appearance of the proposed buildings and vehicle manoeuvring and parking areas will not be unduly obtrusive.
-The extent of the proposed excavation and filling is sufficiently in compliance with Principle 2 of the Hills Face Zone, and will contribute to limiting views of the buildings and vehicle manoeuvrings and parking areas from the plains.
-The proposed use of the right of way in association with the proposed dwelling will not give rise to unacceptable impacts in planning terms.
-In our planning assessment, the proposed development is in sufficient compliance with the relevant provisions of the Development Plan to warrant approval.”
Alternative sites – an error of principle?
I do not agree with the criticisms made of the ERD Court’s approach to the case before it.
I doubt whether one can safely state a principle of universal application dealing with the extent to which the ERD Court should consider other possible sites on the land which would or might accommodate the proposed development, and would better conform with the relevant provisions of the Plan. In principle, the ERD Court was correct to say at [36] that it was not its “task to compare the proposed development with a hypothetical development which is not proposed”.
As I said earlier, to some extent the Council and the Halls put a case on appeal to this Court that was not put before the ERD Court below. In this Court a good deal more emphasis was placed on the need to consider alternative sites than appears to have been put on the matter below. That is not to say that the issue was not canvassed below. While the argument may not have been limited, as Mr Roder suggested, to a mere argument that the use of the land would not be sterilised if provisional development planning consent were refused, the argument based on consideration of alternative sites did not receive the emphasis below that it received before us.
In a particular case there might be an obvious alternative site for proposed development which would clearly better meet the objectives and principles of the Plan. If that were so, that circumstance might affect the ERD Court’s assessment of the proposal before it. It would be a matter for the ERD Court to consider in a practical and commonsense fashion. However, it would remain the ERD Court’s task to assess the proposed development against the Plan, but bearing in mind, if it were the case, the existence of an alternative site that would accommodate the proposed development and that would better conform to the provisions of the Plan.
The ERD Court properly took the view that this was not such a case. The availability of an alternative location that was suitable for the proposed development was speculative. Before the ERD Court it was never more than a possibility that there was such a site. On my understanding of the proceedings before the ERD Court there were real difficulties in terms of access and excavation with the alternative possibilities. The extent of an associated reduction in the bushfire risk was also unspecified, and somewhat speculative. Granted, Mr Menadue had given an expert opinion that locating the development lower on the land would reduce the bushfire risk, but that was as far as it went. How this would be achieved, and the extent of the reduction, were never developed. The same applies to the issue of limiting the visual intrusion and the reduction in excavation. In short, no alternative site was identified that would accommodate the proposed development and that would better conform to the provisions of the Plan. It was never more than a possibility that such a site could be found.

I agree with Mr Roder’s submission that it would not be possible for a relevant authority to assess a proposed development against the Plan if it had to consider a variety of different locations, and also changes to a proposed development to accommodate those different locations, with a view to deciding whether the hypothetical proposal would better conform to the provisions of the Plan than the proposed development.
In this respect the provisions of the Plan relating to the HFZ are to be approached in the same manner as provisions in other parts of the Plan.
The provisions in the Plan that speak of minimising bushfire risk, keeping excavation to a minimum, or minimising the obtrusiveness of buildings do not call for a different approach. As Mr Roder demonstrated, such terminology (that is the use of “minimise” and like expressions) is found in many provisions of the Plan. Such language calls for a planning authority to consider the relevant aspect of the proposed development (bushfire risk, obtrusiveness, the amount of excavation), the extent of or the impact of the relevant aspect, and whether the proposal has been developed in a manner that will contain or reduce the relevant aspect to an acceptable level, having regard to the relevant Objectives and Principles of the Plan. I recognise that this is an indefinite criterion, but it is nevertheless meaningful.
I agree with Mr Hayes that the provisions of the Plan relating to the HFZ call for a relatively detailed consideration of the aspects of the proposed development now under consideration. But the ERD Court did that. The Plan does not require the applicant to satisfy the ERD Court that there is no alternative proposal possible that would better conform to the provisions of the Plan. It is sufficient for this to be dealt with in a more general fashion, as it was.
For those reasons I reject the submission that the ERD Court erred in principle in its approach to the assessment of the proposed development. It was not required to exclude the possibility of an alternative site for the proposed development that would better conform to the provisions of the Plan. On the evidence before it, and as the case was presented to it, the ERD Court took the proper approach to the assessment of the proposed development.
Bushfire risk
The Council intended calling Mr Menadue as a witness. Certain written statements by him were tendered at the outset of the hearing. (T5) He was unavailable to give evidence when the time came. When the difficulties in calling him were raised, the presiding Judge said:
“We have discussed the matter and we are unanimously of the view that the evidence concerning the bushfire risk is not going to be decisive in this matter, given the provisions of the development plan, so that might be something that you might like to consider today as well”.
Counsel for the Council, no doubt influenced by that comment, did not apply for an adjournment so that Mr Menadue could be called. Counsel for City agreed to Mr Menadue’s statements remaining as an exhibit, informing the ERD Court that by waiving his right to cross-examination, he did not agree to be bound by the opinions of Mr Menadue. It was, however, accepted that Mr Menadue had indicated a preference for the development to be placed lower on the land.
The material from Mr Menadue took the form of three letters. The first of these was written in relation to the proposed development when it was being considered by the Development Assessment Commission at an earlier stage. (A consent granted by the Commission was later quashed). In the letter Mr Menadue made the point that the bushfire hazard for the area was very high, and recommended refusal of the proposed application. He made some general references to the Plan, but did not explain in any detail why the application for consent should be refused. However, he did state that “alternate siting on the lower part of the allotment would minimise the threat and impact of bushfire on life and property whilst protecting the natural character of the area.” A second letter was written to the Council when it was considering the application. Apparently the letter was written in the belief that Council had approved the application. Mr Menadue repeated that the bushfire hazard was very high, but expressed no objection to the proposed development providing certain recommendations were incorporated. As I understand it, these have been incorporated, by and large. In a third letter, apparently prepared with a view to Mr Menadue giving evidence, Mr Menadue explained the mistaken basis on which the previous letter was written. The letter contained some comments about details of the proposal, which appear to call for some minor modifications, and repeats the comment that re-positioning of the development on the lower slopes of the allotment would reduce the bushfire risk and potential bushfire threat.
Mr Hayes and Mr Henry argue that the intimation by the ERD Court that I have set out above, and the ERD Court’s reasons at [28] (set out above) disclose an error of principle. They argue that the provisions of the Plan put considerable emphasis on reducing bushfire risk, and that Mr Menadue had indicated that re-positioning the development lower on the land would reduce the risk. In light of that, they argue that the ERD Court did not pay adequate attention to minimising bushfire risk. They argue that the ERD Court erred in taking the view, without apparently considering the merits of an alternative location, that the issue of bushfire risk was not decisive, and in finding that the proposed development sufficiently complied with the relevant provisions of the Plan.
I disagree. The ERD Court had Mr Menadue’s statements from the outset of the hearing. Those statements were lacking in detail, although it is apparent that Mr Menadue favoured the relocation to a lower site, with a reduction in bushfire risk. That was a matter for the ERD Court to consider. But Mr Menadue’s statements did not, understandably, grapple with the practicality of an alternative site. More significantly, his statements did not quantify the extent of the bushfire risk if the development were to proceed, nor did they explain the nature and the extent of the reduction were the proposal to be relocated to a lower site. Bearing in mind that Mr Menadue would apparently not oppose the development were it located on the lower site, and that the possible alternative sites were no great distance west of the existing site, it was open to the ERD Court to conclude that any reduction in the bushfire risk by relocating the proposed development was not so significant as to warrant refusal, bearing in mind all along that the possibility of relocating the proposed development was speculative.
The ERD Court’s intimation of its attitude to Mr Menadue’s evidence is consistent with such an approach. It was open to the Council to press its point by calling Mr Menadue had it wished to do so.
It is not the case, contrary to the submissions by Mr Hayes and Mr Henry, that the ERD Court rejected Mr Menadue’s opinion that a lower site would reduce the bushfire risk. The ERD Court considered Mr Menadue’s general observation to that effect. This was a matter to be considered along with everything else. It is also material that, in the end, Mr Menadue was not called to explain his opinions. The ERD Court was entitled to proceed on the basis that his statements amounted to little more than a general preference for a site lower down that would bring with is reduced bushfire risk.
I am firmly of the view that to interfere with the ERD Court’s decision in this respect would be to embark on a reconsideration of the merits of the proposed development, on an aspect that was left before the ERD Court in quite general terms. Having regard to the material before it, it was open to the ERD Court to reach the conclusion that it did, and it would be a departure from accepted practice for this Court to revisit this issue, having concluded that there was no error of principle in the ERD Court’s approach.
Excavation
The amount of excavation required was substantial. The ERD Court recognised that.
As was the case in relation to bushfire risk, the appellants argued that the ERD Court failed adequately to consider the possibility of an alternative location on the land, requiring less excavation. They also argued that in any event the ERD Court gave inadequate weight to the preservation of the natural form of the land. Mr Henry argued that the ERD Court wrongly reasoned at [35]:
“In relation to steeply sloping sites there is a degree of tension between the desire to maintain the natural form of the land, and the desire to minimise the visibility of buildings on land in the Hills Face Zone, particularly from the plains.”
He argued that the ERD Court had wrongly started from the premise that the landowner had a right to build on steeply sloping land, and that its concern was merely to balance against that, as best it could, the desirability of maintaining the natural form of the land, treating it as given that a building would be erected on the land and that its visibility should be minimised by excavation of the site.
I have already dealt with the first of these points. The ERD Court adequately allowed for the possibility of an alternative site, and for the consequential possibility of more favourable outcomes in terms of the Objectives and Principles in the Plan. I merely add that I am left with the impression, in any event, that relocating the development to a lower point on the site would not achieve any significant reduction in the overall amount of excavation. In particular, my impression is that providing access from Gill Terrace and relocating the vehicle garages would have involved substantial excavation. In short, the ERD Court adequately considered the argument that consent should be refused because the Objectives and Principles could better be met by a varied development. Beyond that, the submission by Mr Henry was an invitation to this Court to make its own assessment, in some detail, of the merits of the proposal, and to substitute our view for that of the ERD Court. That is something that the Court should not do.
Natural Character
The preservation and enhancement of the natural character of the zone is probably the leading feature of the Objectives and Principles in relation to the HFZ.
The ERD Court recognised that. It considered the issue with some care. The ERD Court observed that the site “displays little natural character”, most of the vegetation on the land being exotic. As my earlier summary of the ERD Court’s reasons indicates, it was satisfied that the landscaping proposals would make a significant contribution to re-establishing the natural character of the area on the site. That conclusion is clearly correct.
Mr Henry argued that the ERD Court put undue weight on the landscaping proposals. As he said, the proposed plantings might not prosper, or might not even survive. They might not achieve the desired effect. Also, the increased planting might add to the bushfire risk. I consider that these are issues that properly form part of the detailed assessment of the proposal that the ERD Court undertook. These were matters for it to consider. This Court should not interfere on issues like that.
I deal here with a separate argument that Mr Henry advanced relating to landscaping. The plans originally submitted to the Council did not provide much detail in relation to landscaping. Early in the hearing, without any opposition, counsel for City tendered a plan, exhibit A3, that provided considerably more detail in relation to the proposed landscaping. That plan was the subject of the favourable observations set out earlier in my summary of the ERD Court’s reasons. Those observations were made in a memorandum that the ERD Court published, which memorandum contained the summary of the ERD Court’s conclusions that I have set out above. The memorandum is, in effect, the substance of the reasons of the ERD Court for allowing the appeal. Having heard submissions on the memorandum, the ERD Court supplemented it by some further brief reasons dealing with the right of way, with some further detail in relation to landscaping, and with the conditions attached to the grant of provisional development plan consent. One of the conditions was that the landscaping had to comply with exhibit A12, a further plan tendered after the publication of the memorandum, and providing some further details that the ERD Court called for.
Mr Henry argued that in receiving and acting on exhibit A3 the ERD Court had exceeded its jurisdiction. The significance that the ERD Court attributed to the landscaping plan exhibit A3 meant that the ERD Court was treating the landscaping proposals as a separate element of the proposed development and, in the circumstances, this was a new element of the proposed development. There had been a significant departure or variation from the proposal put to the Council for its consent. He emphasised that the significant change was the introduction of exhibit A3, not the introduction of exhibit A12. To the extent that the ERD Court had thought that this was the objection advanced, it had misconceived the situation. Mr Henry argued that the ERD Court lacked jurisdiction to permit such a substantial variation in the proposed development, and that the fact that exhibit A3 was tendered by consent could not give the ERD Court jurisdiction to entertain a variation that it otherwise lacked jurisdiction to entertain.
Mr Henry’s submission raises a significant point of principle about the power of the ERD Court to permit an amendment to a proposed development. However, it is not necessary to resolve that point. An appeal to the ERD Court against a decision under s 33 of the Development Act 1993 (SA) by a relevant authority is governed by s 88 of the Act. It is well established that an appeal to the ERD Court takes the form of a full hearing of matters of fact and law. It was common ground before us that in hearing such an appeal the ERD Court has power to consider and grant consent to a proposed development that is not the same as that considered by the relevant authority. The only issue was the extent of the power. The process under which applications for development consent are considered is such that there must be limits on the power of the ERD Court in this respect. It may be, as was suggested in argument, that the power of the ERD Court is the same as that of a relevant authority under s 39(4)(a) of the Act, which is to permit a variation “provided that the essential nature of the proposed development is not changed”.
Having said that, I do not agree that the ERD Court exceeded its powers in the present case. The proposed development was always for a detached dwelling, earth works and landscaping. The tender of exhibit A3 did not introduce a new element. It was merely an elaboration of what was proposed to the Council. It was an elaboration of a kind that one might expect when a proposed development comes under the detailed scrutiny that it is likely to receive in the course of a full hearing before the ERD Court. The fact that it was received without objection cannot give the ERD Court a jurisdiction that it otherwise lacks, but supports the conclusion that the filling out of the proposal in relation to landscaping should be regarded as a matter of elaboration, not giving rise to a change in the proposed development or to a new proposed development. It is of some significance that in other respects the proposed development was unchanged.
Accordingly, I am satisfied that the ERD Court did not exceed its powers in admitting exhibit A3.
Other matters
Mr Henry canvassed a number of other matters, either in conjunction with the above points or separately from them. They are matters that properly were considered by the ERD Court, but in my opinion go to the detail of the assessment of the proposed development against the Plan. He has not demonstrated any error of principle in connection with these matters, nor has he demonstrated a significant departure from the proper approach to the consideration of these matters.
Conclusion
The issue of principle in this appeal is whether City had to satisfy the ERD Court that the proposed development could not be sited elsewhere on the land, achieving a reduction in bushfire risk, obtrusiveness and the amount of excavation, before it could find that the proposed development sufficiently complied with the provisions of the Plan to warrant appeal. I am satisfied that the ERD Court’s approach to that issue was correct. It considered the issue, but rightly decided that it was no more than a possibility that an alternative location on the land could be found, and further rightly decided that the reduction of bushfire risk, obtrusiveness and excavation was speculative and could not be quantified. It was open to it to reach the conclusion that it reached.
Other than the question of the power of the ERD Court to grant provisional development plan consent on the basis of the amended landscaping plan, the other issues argued were in substance an invitation to this Court to make its own detailed assessment of the merits of the proposal, with a view to substituting its conclusion for that of the ERD Court. This is something that the Court should not do.
For those reasons the appeal should be dismissed.
NYLAND J I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.
GRAY J I agree that this appeal should be dismissed for the reasons given by Chief Justice Doyle.