City of Salisbury Assessment Panel v Development Holdings Pty Ltd - [2024] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
CITY OF SALISBURY ASSESSMENT PANEL v DEVELOPMENT HOLDINGS PTY LTD
[2024] SASC 92
Judgment of the Honourable Justice Hughes
12 July 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
Appeal from a decision of the Environment Resources and Development Court (ERD Court) constituted by a Commissioner.
The respondent developer was refused planning approval for a 118-place child-care centre with 27 car parks by the City of Salisbury Assessment Panel. The developer sought a review in the ERD Court. Following minor amendments to the proposal, the appeal was allowed and planning approval granted.
The Assessment Panel appealed the decision, alleging that the ERD Court erred in law by:
1.Misconstruing and misapplying particular performance outcomes of the Planning and Design Code by assessing the proposal against generic character attributes of the locality rather than the character of the immediate surrounds of the proposed development.
2.Defining “low density character” too narrowly by reference to the Code’s definition of “low net residential density”.
3.Assessing the proposal’s conformity with the Hills Neighbourhood Zone Performance Outcome (HNZ PO) 1.4 in a manner that confined consideration to the effect on character of the scale and intensity of the proposal when the concept of character was not so limited.
4.Failing to assess the disparity between the footprint of the proposed building with other buildings in the locality and failing to consider that the footprint of the building, whether obscured by landscaping or not, was an important aspect of consistency with character.
5.Construing the word “complement” in HNZ PO 1.4 as having a similar meaning to “maintain” and failing to construe the provision as seeking enhancement by adding to the existing amenity and character.
6.Failing to assess whether noise from the proposed development would complement the amenity of the locality as provided for by HNZ PO 1.4 and / or erred in proceeding on the basis that the question was whether the effect of the anticipated noise was “not unreasonable” by reference to general provisions of the Code applying in all localities.

Held, dismissing the appeal:
•The Commissioner correctly assessed amenity by reference to the locality. There is no basis in the Code for confining the area of impact with greater emphasis on the immediate neighbours and street than was given by the ERD Court.
•No error was demonstrated in the manner in which the ERD Court undertook the task of assessing the proposal against the Code and in particular its impact on the residential character and amenity of the locality.
•The Court’s focus on the scale and intensity of the proposal was appropriately aligned with the parties’ approach to the appeal before it.
•Whilst in ordinary usage, “complement” may more frequently be used to connote that which enhances, the context of its use in the Code indicates that the Commissioner correctly construed the term.

Planning, Development and Infrastructure Act 2016 (SA) s 57, s 66, s 102, s 202, referred to.
Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor [2010] SASCFC 15; Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor [2023] SASC 107; Villaplex P/L v Council of Norwood, Payneham and St Peters & Ors [2000] SAERDC 10, applied.
Development Holdings Pty Ltd v City of Salisbury Assessment Panel & Anor [2024] SAERDC 6, discussed.
Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Ditara Pty Ltd v City of Norwood, Payneham and St Peters [2001] SASC 236; Geber Super Pty Ltd v The Barossa Assessment Panel [2023] SASC 154, considered.

CITY OF SALISBURY ASSESSMENT PANEL v DEVELOPMENT HOLDINGS PTY LTD
[2024] SASC 92
Civil: Appeal to a Single Judge

HUGHES J: On 28 May 2023, the City of Salisbury Assessment Panel (the Assessment Panel) refused development application no 23002678 for development of a childcare centre and adjacent car park at 61 Stanford Road, Salisbury Heights (the development).
The developer, Development Holdings Pty Ltd (the Developer), sought a review in the Environment Resources and Development Court (ERD Court) which was granted following a hearing.
The Assessment Panel appeals the ERD Court’s decision to this Court.
For the reasons that follow, no error in the decision has been demonstrated and the appeal is dismissed.
Background
The original development proposal was a 118-place child-care centre with 27 car parks. The location is on a suburban road with residential dwellings adjacent. A neighbour, Mrs Jenzen, opposed the proposed development.
The Developer was refused planning approval by the Assessment Panel on several bases. The Assessment Panel considered that the development would introduce a scale and intensity that did not presently exist within the locality, and would be detrimental to the locality’s amenity and character.[1] It determined that the car park would not complement the established residential character of the locality.[2] Additionally, the Assessment Panel considered that the proposed development failed to achieve desired landscape and tree planting requirements and did not respond to the context of the locality.[3]
[1]     Development Application number 23002678.
[2]     Ibid.
[3]     Ibid.
The Developer refined the proposed development reducing the total number of child-care places to 108.[4] The Developer invoked the ERD Court’s review jurisdiction.[5] A hearing was conducted which included an inspection of the proposed site and surrounds, and the Court received expert reports and oral evidence from two experts. The ERD Court also heard from Mrs Jenzen through her adult son.
Legislative scheme
[4] Development Holdings Pty Ltd v City of Salisbury Assessment Panel & Anor [2024] SAERDC 6, [6].
[5] Planning Development and Infrastructure Act 2017, s 202.
The Planning, Development and Infrastructure Act 2016
The assessment of the development is undertaken by reference to the Planning, Development and Infrastructure Act 2016 (“PDI Act”). Those involved in the administration of the Act are required to advance its objects, which relevantly include the aspiration of “creating an effective, efficient and enabling planningsystem, linked with other laws, that promotes and facilitates development, and the integrated delivery and management of infrastructure and public spaces and facilities, consistent with planningprinciples and policies”.
Part 7 of the PDI Act creates a scheme for development approval. Within that Part, s 102(1) provides that development is approved development if, and only if, a relevant authority (in this case, the Assessment Panel) has issued a planning consent.
Section 66 of the PDI Act requires that there will be a Planning and Design Code (“the Code”) and that it must set out a comprehensive set of policies, rules and classifications which operate selectively in the various parts of the State.
The Code is required to establish a scheme of three spatial layers: zones, subzones and overlays. The Code must specify policies and rules directed to guiding the assessment of development. It was not in dispute that the development was required to be assessed on its merits against the Code. The decision-maker was required to determine whether the proposal was seriously at variance with the Planning and Design Code. A grant of planning consent where it is established that there is non-conformance with a policy is not, of itself, sufficient to demonstrate error.
The Planning and Design Code
The primary purpose of the Code is to set out the policies, rules and classifications for the assessment of development under the PDI Act by reference to the three spatial layers.
The Code contains rules of interpretation. Those rules describe Desired Outcomes, being general policy agendas for a zone, subzone, or overlay. Desired Outcomes inform the interpretation of Performance Outcomes, and are not policies in their own right.[6]
[6] Geber Super Pty Ltd v The Barossa Assessment Panel [2023] SASC 154 per Blue J at [87].
The rules refer to Performance Outcomes which are polices designed to facilitate assessment of proposals according to specified factors, including land use, site dimensions and land division, built form, character, and hazard risk minimisation.
The location and the proposal
The proposed development is a single storey building constructed in a residential style. The proposal is described as a pre-school, adopting the language of the Planning and Design Code. In colloquial terms, it might be better known as a child-care centre, as it is a business that provides care to children from birth to school age.
The pre-school’s proposed hours of operation would be 6.30 am until 6.30 pm, Monday to Friday.
The Developer’s revised proposal that was considered by the ERD Court comprised a 108-place pre-school, together with on-site car parking for 27 vehicles, retaining walls, fencing, landscaping and advertising.
A landscape buffer, grading in width between 5.9m - 5.0m, is proposed across the front of the site and the building and car park would be located behind a 1.5m high fence.
In terms of setbacks, the building is proposed to be sited approximately 43m - 48.5m from the front boundary, and approximately 900mm from the southern boundary for a distance of 15.6m, beyond which the building would step away to allow for an outdoor play space 8.5m wide. This play area would follow around to the rear of the building where the south-eastern corner, at 3.3m, would form the closest rear setback. Forward of the building on the southern side would be an area of open space, further play area, and a screened service area.
The 27-space car park positioned behind the landscape buffer would be setback 900mm off the northern boundary. Vehicle access to the car park would be via a dual direction, and a pedestrian access path would run along the car park’s southern edge.
East of the car park the building would be variously setback from the northern boundary. For 9.2m the setback is proposed at 1m, beyond which it would increase to provide for play space. The setback would be 8.2m wide for a length of 7.7m, stepping in to 7m with the building ending 5m from the rear boundary. The perimeter is proposed to be fenced at the rear and side.
The site and locality
The site is located at the edge of the Hills Neighbourhood Zone (HNZ) where it meets the General Neighbourhood Zone (GNZ). The land currently has a residential dwelling, shed, driveway and garden, which will be demolished for the development.
The locality
It was not disputed that the locality comprises low density residential development, typically setback 10-15m from the front boundary. In terms of trending change to the broader area, it was also agreed that infill development is increasing, entailing smaller allotments with greater site coverage by buildings and more retaining on sites.
The experts engaged for the purposes of the ERD Court proceedings described slightly different localities for the purpose of assessment, and the Commissioner ultimately chose a different set of boundaries to describe the locality for the purposes of planning assessment.
The Commissioner modified the experts’ combined locality to include all the properties on the southern side of Taylor Avenue up to and including 19 Taylor Avenue along with 14 Birt Avenue, and to remove the area north of the northern boundary of 73 Stanford Road. No issue has been taken with that approach on the appeal.
The Commissioner observed that Stanford Road is a connector road that carries an average of 3415 vehicles per day.
In her written reasons, the Commissioner provided a detailed description of the locality that has not been challenged. She said,
Overall the locality can be characterised as a residential area comprising largely (although not exclusively) single storey detached dwellings on individual allotments. There is increasing evidence of recent redevelopment and slight increases in density; notwithstanding density remains low. It is suburban, as distinct from urban or rural. It is relatively quiet. Dwellings are typically set back behind established gardens with both dwellings and gardens generally well maintained. Driveways lead to carports or garages. Stanford Road provides for through traffic and traffic collected from the surrounding local road network. The amenity is pleasant. It is typical of what one would expect of a residential area influenced by a collector road at the edge of a zone.[7]
[7] Development Holdings Pty Ltd v City of Salisbury Assessment Panel & Anor (n. 4), [33].
The policies relevant to the appeal
Whilst there were numerous policies applicable to the proposal, only the application of a few of them are relevant to the grounds of appeal. Those policies relate to the HNZ Performance Outcomes as follows:
P.O. 1.1 Predominantly low density residential development with complementary non-residential land uses compatible with the natural land forms and a low density residential character.
P.O. 1.4 Non-residential development sited and designated to complement the residential character and amenity of the neighbourhood.
P.O. 8.1 Buildings are set back from side boundaries to provide (a) separation between dwellings in a way that complements the established character of the locality;
P.O. 3.1 Building footprints [are] consistent with the character and patter of a low density suburban neighbourhood.
P.O. 8.1 Buildings are set back from side boundaries to provide
(a) separation between dwellings in a way that complements the established character of the locality;
(b) access to natural light and ventilation for neighbours.
P.O. 9.1 Buildings [are] set back from rear boundaries to provide
(a) Separation between dwellings in a way that complements the established character of the locality;
(b) access to natural light and ventilation for neighbours
(c) Private open space
(d) Space for landscaping and vegetation.
The ERD Court Decision
The Assessment Panel’s decision to refuse planning consent was made within the context of the HNZ Desired Outcomes. The first of these does not expressly contemplate non-residential development within the zone. Further, HNZ Designated Performance Feature 1.1 does not include “pre-school” in its list of uses, whereas the General NZ and the SNZ both expressly contemplate such services being provided within those areas.
The Assessment Panel argued before the ERD Court that the proposal was not contemplated. The Commissioner rejected that contention and said that the lack of an express reference to a pre-school was not fatal to the application. The Commissioner said:[8]
Pre-schools, and indeed schools and places of worship are all land uses that support a residential community and within the doctrines of good town planning are exactly the type of non-residential land uses that should be encouraged to locate within residential areas.
…
I find as a genus the pre-school land use is an appropriate complementary non-residential land use within the HNZ and in particular in this locality because it is a land use that would suit or go well with the existing residential development.
[8] Ibid, at [134]-[139].
The Commissioner then considered whether, as a non-residential land use, the proposal was compatible with the locality’s character. She found the character to be guided by Performance Outcomes 1.1, 4.1 and 3.1. She said:[9]
HNZ PO1.1 requires non-residential land uses to be compatible with “a low density residential character,” HNZ PO4.1 requires buildings to contribute to “a low rise suburban character” and HNZ PO3.1 requires building footprints to be consistent with the character and pattern of an undefined “low-density suburban neighbourhood.”
These policies do not necessarily relate to the specific locality; it must be the generic character elements that are of importance.
I would describe a generic low density residential character (HNZ PO1.1) to comprise mainly detached dwellings at densities of less than 35 dwellings per hectare (net). Dwellings would be single or double storey in the main and would likely have a separate driveway entrance and be set back from the street behind a front garden and possibly a fence. It may have outbuildings. I cannot be more specific.
HNZ PO3.1 modifies the character by adding the concept of “suburban.” The area would be remote from the CBD and might include its own facilities.
The low-rise reference included in HNZ PO4.1 would reinforce a building height of up to and including two building levels.
For the purposes of the assessment at bar, the character of the locality sufficiently exhibits all of these generic characteristics and is sufficiently residential for the purposes of HNZ PO1.4 such that my decision does not turn on whether HNZ POs1.1, 3.1 and 4.1 are interpreted in the generic or the specific. (footnotes omitted)
[9] Ibid, from [93].
The Assessment Panel had reached the conclusion that the “scale and intensity” of the development was incompatible with the character of the locality. On this issue, the Commissioner’s reasoning is to be found at paragraphs [112]–[116] as follows:
Scale is a common planning term used to reflect size including tests of height, length, width, bulk and massing.
Intensity, also commonly used in planning, is more nebulous; often a reflection of impact. For the purposes of this assessment, I adopt the Macquarie dictionary definitions as follow:
“Intensity” “(1) the quality of or condition of being intense” or “(4) the degree to which something is intense;”
“Intense” “(1) existing or occurring in a high or extreme degree”, “(5) having or exhibiting some characteristic quality in a high degree”.
The assessment of intensity is therefore one of impact. The determining factor is whether that impact is reasonable (with or without management) or unreasonable. (footnotes omitted)
Scale is associated with the extent of setbacks of the building associated with the proposal. At [159] the Commissioner found that the front setback was acceptable. She said,
I accept there would be cases where an excessive setback might be equally disruptive to the streetscape. In this case both of the experts said that the landscaping to the front of the Land is reminiscent of a domestic garden and will largely obscure all but the closest of views. It will not be obvious other than from above.
The side setbacks were considered ample and as to the rear setback the Court said,
The rear setback is not overly generous and is partially less than the minimum established in DPF 9.1(a). A larger setback may well be desirable. However, it is not for this Court to assess what might be desirable, it is for this Court to assess the Proposal before it.
The variance from HNZ DPF9.1(a) is limited and will be without significant impact…I consider HNZ PO9.1(a) and (b) to be satisfactorily met.
The Court went on to consider footprint and retaining walls and concluded[10],
Overall I find the size and scale of the Proposal enables an appropriate design response to satisfactorily fit with the prevailing character in the locality.
[10] Development Holdings Pty Ltd v City of Salisbury Assessment Panel & Anor (n. 4), [221].

The car park was found to fit in with and suit the surrounding street scape.[11] Given the traffic load on Stanford Road, the intensity of traffic anticipated in connection with the proposal was found to be compatible with the character of the locality.[12]
[11] Ibid, [226].
[12] Ibid, [237].
The Commissioner also considered the effect of the proposal on amenity. The ERD Court heard evidence from the neighbour who described the history of development in the street and anticipated that the proposal would intrude on the serenity of her back garden and create additional noise in the use of the premises and the additional traffic.
In relation to amenity, the Court found that consideration had to be given to whether the proposal was complementary to the locality.[13] She said:[14]
For the purposes of this assessment I consider the term “complement” to mean “to suit or go well with; enhance the good qualities of.”
However, it would be as unreasonable to expect every development to raise to a higher degree (enhance) the character or amenity of an area as it would be to approve a development that unreasonably (negatively) impacts the same. It is for this reason; I place the emphasis on the more neutral “to suit or go well with” and determine this to be the most appropriate test in relation to the complementarity of a development proposal.
The Macquarie Dictionary defines “consistent” as “(1) agreeing or accordant; compatible; not self-opposed or self-contradictory”.
Out of interest it is worth noting “(3) holding firmly together; cohering” and “(4) fixed; firm; solid” are definitions listed as obsolete.
In town planning parlance, a definition comprising “agreeing or accordant” and “compatible” makes sense. It adds consistency to the interpretation of the Code provisions as sought by s12, (2) (a) of the PDI Act.
I also defer to the Macquarie Dictionary definitions of “contribute” – “(1) to give in common with others: give to a common stock or for a common purpose” and “(3) to make a contribution; furnish a contribution”
Following this approach, complementation equally does not require the development to be without effect. The residential amenity will be found to be complemented if, upon an overall assessment, the effects (impacts) of the Proposal can be considered to suit and go well with the amenity of the locality. If overall, the impacts detract from the amenity then it cannot be said to be complementary. (footnotes omitted)
[13] Ibid, [242].
[14] Ibid, from [105].
The Commissioner concluded on the issue of scale and intensity and their relationship with the locality with the following:[15]
The intensity of the Proposal is suitable. It has not reached the tipping point as evidenced by the lack of off-site impacts all of which have been reasonably and suitably managed.
[15] Ibid, [268].
The Commissioner also considered, though in less detail, the impact of traffic, noise, and the proposed hours of operation of the business, and found that the impact of the proposal on amenity was acceptable.[16]
[16] Ibid, [270].
The Commissioner summarised her conclusions as follows:[17]
On the matter of land use, I find a pre-school is an appropriate land use within the HNZ. It is a land use specifically contemplated as appropriate by HNZ PO 1.3(b) and is a land use that supports residential populations. It is a land use routinely located within residential areas.
On the matter of character, I find that the Proposal has been designed and sited to fit into the locality. It will be single storey. The front façade, series of roof gables and materials will be complementary to the residential vernacular. The landscaping will obscure the car park and complement the setting in the streetscape. The car park is to be entered by one double width crossover only.
From a character perspective the levels of activity generated on the Land will be consistent with the general levels of activity associated with the location of the Land on a collector road, and with a non-residential land use in a residential setting.
The setbacks are appropriate for a non-residential land use in the context of the surrounding residential development. Fencing will appear domestic.
On the matter of amenity, I find that the amenity will change. Change in amenity is permissible but must not be unreasonable. The offsite impacts of noise and traffic have been appropriately addressed as part of the application and the activity generated on the site will be during hours most compatible with domestic activities. The changes to amenity arising as a result of the Proposal will be consistent with and in keeping with what one could reasonably expect within a residential locality.
[17] Ibid, [275].
In light of the conclusions, the Court allowed the appeal, set aside the decision and granted planning consent for the development.
The appeal
There were six grounds of appeal but these were able to be considered as incidents of two overarching objections.
The first of these was that the Court had not assessed the proposal as against the requirements of the Code in respect of the impact of the proposal on the character and amenity of the locality.
This was said to sound in four specific errors: with respect to the Commissioner’s use of the concept of “generic character”, her reliance on low net residential density, her analysis of the proposal’s scale and intensity, and her analysis of the implications of the proposed building’s footprint.
The second overarching objection concerned the Commissioner’s approach to the proper construction of “complement” in the Code in the context of development complementing existing character, amenity and locality. It was contended by the applicant that the concept of “complement” in the Code is properly understood to connote something positive as opposed to something negative or merely neutral. The applicant argued that the Commissioner had failed to apply the concept of complementary development in accordance with its proper construction and had allowed a negative or neutral proposal to be considered to be compliant, or at least not seriously at variance, with the Code. This led to two specific errors, described in grounds 5 and 6.
The appellant contends that the errors require the decision to be set aside and that the decision be remitted to the ERD Court for determination according to law.
The respondent maintains that no error has been demonstrated and that the appeal should be dismissed.
Consideration – character and amenity of the locality
It is convenient to address grounds 1 – 4 as a group.
Generic character
The Commissioner’s reasoning was criticised by the appellant for construing the task as the assessment of the proposal against generic elements of character in HNZ Performance Outcomes 1.1, 3.1 and 4.1 rather than the specific elements of character for the particular locality.
The appellant submitted that, in so doing, the Commissioner had wrongly assessed the impact of the proposal on the locality’s character at a general, superficial level rather than in its particular immediate context.
The respondent contended that the Commissioner had not erred and had approached the task in a manner that gave coherence to the distinction in the Code between principles of general application which are denoted by indefinite articles and those in relation to which particular application is required which use the definite article.
“Character” in this context should be understood to refer to the multi-dimensional concept that results from the “synthesis of land use, the appearance of buildings and spaces, the intensity of development and the scale of operation of such development.”[18]
[18] Rocco Ciancio & The District Council of East Torrens, PAT Nos 316 and 557 of 1989, as endorsed by Villaplex P/L v Council of Norwood, Payneham and St Peters & Ors [2000] SAERDC 10 per Judge Bowering, Commissioner Hutchings and Commissioner Mosel.
The purpose of determining the locality is precisely to provide a means of ascertaining the group of characteristics that the proposal should be assessed against. If the locality is too small, then development will necessarily be limited to replicating the status quo. There could be no incremental change response to desire or need. On the other hand, if the locality is too large, development that is irregular, disjointed and incongruous could occur because a proposal could likely satisfy some of the greater number of characteristics that the larger area would demonstrate.
Low net residual density
The Commissioner described ‘low density residential character’ for the purposes of HNZ Performance Outcome 1.1 in a manner that considered the character across the locality. She described it as comprising “mainly detached dwellings at densities of less than 35 dwellings per hectare (net). Dwellings would be single or double storey in the main and would likely have a separate driveway entrance and be set back from the street behind a front garden and possibly a fence. It may have outbuildings. I cannot be more specific.”[19] The appellant argued that the Commissioner conflated the expression “low density residential character” with an expression defined elsewhere in the Code, “low net residential density”. Mr Roder KC argued that the Commissioner erred in her importation of the definition in her reasoning as to what informed the meaning of “low density residential character”.
[19] Development Holdings Pty Ltd v City of Salisbury Assessment Panel & Anor (n. 4), [95].
I reject the contention that the Commissioner erred in her approach to what was relevant to a consideration of “low density residential character”. The Commissioner did not conflate two expressions but merely referred to the definition given to “low net residential density” to as a matter that “reinforced” her account of what the Code intended by “low density residential character”. As is discussed further below, the Commissioner’s approach is consistent with seeking coherence between the expressions in the Code.
Scale and intensity
The appellant contended that at paragraph [140] et seq, the Commissioner confined her consideration of the development’s impact upon amenity to scale and intensity, and overlooked the significance of other impacts which were required to be considered together with scale and intensity.
This, too, is an unfair reading of the Commissioner’s reasons. She commences the relevant paragraph with the words, “Although the matter at bar largely turns on a question of scale and intensity …”. However, after addressing the submissions of the parties on that issue, the Commissioner canvassed other impacts on amenity, particularly at paragraphs [260] and [261]. What is evident is that the manner in which the matter was argued before her by both the Assessment Panel and Mrs Jenzen, was that amenity and character attracted the most focused and sustained objections to the proposal.
In any event, a fair reading of the decision does not reveal that the task was reduced to one of examining the proposal’s effect on amenity merely by reference to scale or intensity. The ERD Court referred to other matters including:
·The effect and design of the car park; [223], [226], [237]
·The landscaping at the front of the property; [159]
·The proposal’s land use, being a community service rather than a commercial enterprise, complementing the residential amenity; [245] – [249]
·The noise likely produced at the site and the mitigatory action; [260]
·The hours of operation and their alignment with residents’ activities; [261] and
·The effect of the proposal on traffic. [265]
The ERD Court correctly identified that the gravamen of the objection from the second respondent and the focus of the Panel’s decision was the scale and intensity of the proposed development. Accordingly, the Commissioner focused greater attention on these as matters that had been identified as revealing tension between competing principles. That did not constitute erroneous focus but appropriate attention to the issues that required the greatest effort in judgement and most taxing of balancing exercises.
Footprint
The appellant argued that the Commissioner failed to give proper regard to the effect of the proposed building’s footprint on character and amenity. This complaint may be disposed of briefly. The evidence before the ERD Court established that the footprint did not exceed that which might have been approved for a residential dwelling. Further, the building was proposed for two storeys only and could not have been argued to create an imposing presence in the streetscape. Finally, the evidence indicated that the setbacks, though not all compliant with the desirable outcome HNZ PO3.1,[20] and retaining and landscaping, had the effect that the footprint was only appreciable from overhead.
[20] Ibid, [189].
No error in respect of the assessment of the impact of the building arising from its footprint was established.
Consideration of grounds 1-4
There is no basis, as was argued by the appellant and was consistent with the second respondent’s position, that amenity was to be determined with greater emphasis to the immediate neighbours and street than was undertaken by the ERD Court. It is evident that the Commissioner made a careful assessment before determining locality. There was a site visit. The ERD Court rejected both of the experts’ proposals and crafted a bespoke locality. The characteristics of the locality were then identified and described.
Grounds 5 and 6 – complementary development
HNZ Performance Outcomes 1.1 and 1.4 use the term “complement”. Performance Outcome 1.1 describes “predominantly low density residential development with complementary non-residential uses…”. Performance Outcome 1.4 refers to “Non-residential development sited and designed to complement the residential character and amenity of the neighbourhood”.
Both before the ERD Court and this Court, the parties were at odds as to whether on a proper reading of the Code, “complement” should be understood as requiring an element of enhancement or might be met even where that which is being complemented is not improved, but is merely added to.
Following argument on the issue, the Commissioner went to some lengths to consider what the word was intended to convey within the Code, before settling on a definition that embraced development that was neutral in terms of impact on amenity.
Consideration – grounds 5 and 6 – “complementary development”
The starting point in respect of the interpretation issue is that the Code, though delegated legislation, is not part of the statute-book and its construction cannot be undertaken by slavish adherence to principles of statutory interpretation.[21] It adopts the language of planning objectives and principles, not legal mandates.[22] It contains its own rules of interpretation. Nevertheless, a proper construction of the instrument assumes that there has been an aim for internal consistency of language and structure, adherence to ordinary meanings of words unless other meanings are expressly provided for, and coherence with other documents that the drafters expect will be read in conjunction with the policy. Words cannot be inserted, nor read into it.[23] In this case, those other documents include the PDI Act and the authorities that have determined how certain planning language and principle is to be understood.
[21] Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor[2010] SASCFC 15 at [6].
[22] Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187.
[23] Ditara Pty Ltd v City of Norwood, Payneham and St Peters [2001] SASC 236 per Debelle J at [16].
Despite the use of the terms ‘rules’ and ‘policies’ in s 57 of the PDI Act and in the interpretation provisions of the Code, compliance or otherwise with any individual provision of the Code is not determinative of whether planning consent should be granted or refused. Where there is variation from the Code, such variation must nevertheless be considered by the relevant authority as to how it bears upon the decision that has been vested in it to make.
In Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor,[24] Kourakis J (as he then was) said:
It is well accepted that principles of development control are guidelines. An application for development must be assessed against those principles. On occasions, perhaps even commonly, developments will advance the objects of some parts of a development plan but be inconsistent with others. In that case, a planning judgment must be made as to the merits of the proposed development. Only if the development is seriously at variance with the Development Plan in the opinion of the planning authority is it necessary to refuse approval.
[24] Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor (n. 21), [45].
As I observed in Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor,[25] the task of determining whether or not to grant planning consent “is not a mechanical assessment of a development, seriatim, against each performance outcome without consideration of other overlapping or competing performance outcomes. Rather, it remains for the decision-maker an iterative weighing and balancing exercise guided by the Code.”
[25] [2023] SASC 107, [67].
Whilst in ordinary usage, “complement” may more frequently be used to connote that which enhances, there is significant difficulty with applying that definition to the use of the word in the Code. That difficulty arises because of the evident object of the PDI and Code to authorise change to a locality in an incremental fashion to reflect the wishes and needs of the community. To attach a meaning to “complement” as sought by the appellant, namely that development must be enhancing of the locality’s amenity or character to be compliant with particular provisions of the Code, would be to relegate the class of proposals that is neutral to amenity or character to the scrapheap. It would place upon individual developers to bear the responsibility of enhancing a locality. Such a responsibility is nowhere evident in the objects of the Act or in the provisions of the Code.
Further, I accept the respondent’s contention that this conclusion is also more consistent with an orthodox construction approach. The term “complement” is used on other occasions in the Code in circumstances in which it cannot be understood to be a synonym for “enhance” because it is used alongside the word “enhance”. For example, the Business Neighbourhood Zone Performance Outcome 1.2 uses the phrase “complement and enhance” which is strongly suggestive of two separate concepts. In other places, “enhance” is used alone, as are the words “consistent with” and “maintain and enhance”. The use of these other words inform the meaning to be given to “complement” and support the Commissioner’s conclusion that the term embraces a class of effects that include neutral effects as well as those that are improving.
Accordingly, grounds 5 and 6 are rejected.
Conclusion
The appellant has not established that the Commissioner erred in her reasoning and the challenge to the orders that were made is unsuccessful.
The appeal is dismissed.