DEVELOPMENT ASSESSMENT COMMISSION No. SCGRG-97-1203 Judgment No. S6545
[1998] SASC 6545
•12 February 1998
CORPORATION OF THE CITY OF KENSINGTON & NORWOOD v DEVELOPMENT ASSESSMENT COMMISSION
Full Court
Cox, Prior & Williams JJ
Williams J:
These proceedings have been referred by a single judge to the Full Court for determination upon a statement of agreed facts.
The nature of the claim
Corporation of the City of Kensington & Norwood (the Council) as plaintiff takes issue with a decision of the first defendant Development Assessment Commission (DAC) by which it gave provisional Development Plan consent to an application by the second and third defendants (Boscaini) to develop a cinema restaurant and retail complex upon land situated at the north eastern corner of George Street and The Parade Norwood. The Council is concerned that insufficient provision has been made by the developers for car parking on site and that as a result undue pressure will be placed on other parking facilities in the neighbourhood - to the detriment of other traders and their patrons.
The Council asserts firstly that Boscaini’s proposal is seriously at variance with the Development Plan for the area (see s38(2) of the Development Act 1993). Secondly the Council complains about an alleged procedural default by DAC in notice to the Council after Boscaini modified the proposal whilst it was under consideration. Thirdly, the Council contends that the consent in the name of DAC was given on its behalf under an invalid delegation of power to the Chairman of DAC. The Plaintiff seeks declaratory relief and by way of judicial review an order quashing DAC’s decision.
The Essential Facts
On 1 November 1996 the second and third defendants as the site owners and intended developers applied to the Council for planning approval. However, as the Council had an interest in a competing proposal nearby for the development of a cinema complex, the Council (pursuant to a resolution of 20 January 1997) requested that DAC should act as the relevant authority in accordance with s34(1)(b)(iii) of the Development Act. It is not in dispute that the first defendant has been properly appointed by the Minister for Housing and Urban Development as the relevant authority to deal with Boscaini’s application.
The Boscaini site lies within the retail core policy area of the District Centre zone in terms of the Development Plan for the City of Kensington and Norwood. Development upon this site is subject to the specific zone requirements of the Development Plan and also the more general policies applicable "Council Wide" as well as the objectives and principles of development control for Metropolitan Adelaide. Although the Development Plan nominates a Cinema as being appropriate in a fully developed district centre (together with restaurants and specialty shops as well as many other facilities) it does not descend to the same degree of particularity with regard to parking requirements to support a Cinema as it does with other types of development. Hence in the case of restaurants and shops specific scales of parking are mentioned in the "Council Wide" section of the plan at Principle 46 which, relevantly reads as follows:
All development should be provided with adequate on-site car parking, in accordance with the following standards:
......
(d) shop(s) in the District Centre Zone other than retail showroom or restaurant:
seven individually accessible car parking spaces for each 100 square metres of gross leasable area;
......
restaurant(s) or hotel: one individually accessible car parking space for every three seats provided or able to be provided in dining and lounge areas."
No mention of Cinemas is made in this standard.
However, the Objectives of the "Council Wide" Plan include the following statement under a heading "Movement of People and Goods"-
"Objective 10:
Development which provides adequate and safe car parking appropriate to the demands generated."
The Principles of Development control in the "Council Wide" Plan include the following:
Development within business and centre zones should conform to the following access and car parking principles:
......
(d) Development should provide sufficient off-street parking to accommodate customer, employee and service vehicles.
......
(j) Opportunities for the shared use of car parking between development sites should be exploited so as to reduce the total extent of car parking areas."
These requirements reflect the more general statement of the Metropolitan Adelaide Development Plan (which is included as a preface to the Kensington and Norwood Plan) as follows:
Provision for the movement of people and goods within business, centre, and shopping zones, or areas, should comply with the following:
.......
(h) On-site parking shall be determined having regard to:
......
(iv) the potential for shared use of parking spaces;"
From the outset the Council has had reservations (which it drew to Boscaini’s attention as early as 22 November 1996) as to the adequacy of the car parking provided by Boscaini or which may be otherwise available to service the development. In the absence of any specific requirement in the Development Plan the developers relied upon experience at another shopping centre at Tea Tree Plaza (outside the Council’s area) to arrive at a suggested scale of parking for cinema patrons of one car parking space per three occupied seats. The Council’s staff (applying the arithmetic formula in Principle 46 abovementioned) calculated that the restaurants required 166 car parks and that the retail development required 100 car parks; 274 car parks were assessed by the Council as necessary to service 1427 cinema seats. In this way the Council’s officers, for the purposes of discussion, thereby reached a total of 540 car parks.
On 18 December 1996 the Council wrote to Boscaini as follows:
"…Whilst we have never argued that the development must provide 540 carparking spaces, it is clear that there is a considerable shortfall given that the proposal provides only 250 spaces. To this end, we are prepared to consider discounting the statutory requirement, however, it is the nature and quantum of the discounting that concerns us.
To this end, if we accept your proposal to provide 250 spaces, then and without entering into a detailed analysis, the ‘real’ shortfall at the peak times is in the order of 190 spaces. Despite your argument that this demand can be accommodated elsewhere (ie Webbe Street Carpark, etc) is it fair and reasonable that single development has access to this amount of off-site overflow capacity. …
Clearly, we need to achieve a successful approach to the carparking issue. Whilst we are prepared to discuss discounting the statutory carparking requirement, we cannot as a Planning Authority grant approval to a development that is assessed as being seriously at variance with the relevant provisions of the Development Plan. Whilst the Council has not formed this opinion, it is clear as stated on previous occasions, that it is concerned with the proposed carparking provision. …"
The material before the court shows that a difference then developed in exchanges between the Council and Boscaini’s representatives as to the manner of calculating the number of cinema seats likely to be occupied at any one time and also as to whether it was appropriate for the developer to rely in part upon other parking areas being able to accommodate the patronage which this new development might be expected to generate. (Principles 23(j) and 19(h) abovementioned of course encouraged sharing of parking facilities).
The Developer’s proposal made some provision for on-site parking (250 places). However the developer was relying upon some patrons of the development being able to gain access to other nearby parking facilities to satisfy the anticipated parking shortfall provided in the development itself. The Council’s concern centred around its own planning advice as to the adequacy of the available parking at times of peak usage and the unfair burden which (as the Council saw it) would be placed on the neighbourhood to the detriment of other traders and their customers. The statement of agreed facts does not disclose the extent of this off-site parking although the supporting material reveals a vigorous debate and differences of opinion as to how this topic should be approached. The Council commissioned its own study by a traffic planning consultant and the report therefrom, dated 17 January 1997, identified the extent of the off-site parking. This report included the following:
"The cinema/retail/restaurant development would need to use 155 spaces off the site. Although there are 450-480 vacant spaces in the vicinity, the applicant has not nominated any particular areas where an agreement has been reached for its use by cinema/retail/restaurant patrons. One major area (Woolworths carpark with 150-200 vacant spaces) involves crossing both The Parade and George Street. Patrons are likely to find parking in nearby residential streets more attractive than parking in Woolworths.
The most convenient alternative parking location would be the Webbe Street carpark. There are currently of the order of 210-230 vacant spaces in this area on Saturday evenings. Currently, when night-time functions are held in the Town Hall, people park in the BILO carpark. If the BILO carpark is unavailable (i.e. if the cinema complex is developed), then these people will park in the Webbe Street carpark. Thus, the number of spaces available in the Webbe Street carpark will reduce to around 100 when functions are held in the Town Hall. I also understand that the Growers Market site has rights over 100 or more spaces in the Webbe Street carpark.
Under these circumstances, in my opinion it is not reasonable for the one development of a cinema/retail/restaurant complex to use 155 spaces in the area. Parking and traffic movement is likely to extend into residential areas and it could affect the further development of other night-time uses on other sites in the area (e.g. on the Growers Market site)."
Boscaini took issue with the contents of this report and commissioned a report from another expert who (after bringing to account the effect of arrangements for shared off street parking facilities) argued that nominally there would always be a parking surplus to service the development. However a shortfall in parking on site was acknowledged.
The Council determined that the development should be treated as Category 2 development for the purposes of s38 of the Development Act and upon that basis, during November 1997, took steps to carry out the notification procedure required by that section.
Realising that the Council was already interested in another nearby development alongside the Town Hall at the Norwood Growers Market site (which included a proposed cinema complex) the plaintiff on 20 January 1997 resolved to request the Minister for Housing and Urban Development to take action under s34(1)(b)(iii) of the Development Act. On 12 February 1997 the Minister declared that DAC (now the first defendant) be appointed as the Planning Authority to deal with the Boscaini application.
On 21 March 1997 the Council reported to DAC the view of the Council that the application should be refused by reason that the Development Proposal failed to provide sufficient on site parking as required by General Principle 23(d) abovementioned. (There were other grounds of objection which are not now relevant).
On 15 May 1997 DAC deferred consideration of the application in anticipation of discussion with the applicants. The Council was represented at this meeting and reiterated that the extent of the car parking available to service the development did not meet the numerical standard required by the Council - in particular for a restaurant and cinema complex. A review of the issue and the available options is contained in a report to DAC dated 15 May 1997 by its own project officer, Mr PA Cooper.
On 20 May 1997 DAC wrote to the Council as follows:
"I refer to the development application by Boscaini Investments Pty Ltd for a cinema/restaurant retail complex at 179 The Parade, Norwood.
At its meeting held on 15 May 1997 the Development Assessment Commission deferred consideration of the application pending negotiations with the applicant on the following:
. An amendment to the proposal to reduce the car parking demand for the proposed development by around 75. The number of car parking spaces is required to be based on the policies in the CC Kensington Norwood part of the Development Plan.
. Interface with residential properties.
. Details of layout of the restaurants and retail areas
. Whether other entertainment facilities and live music is proposed
. Hours of operation
. Flood lighting
. Linkages to commercial properties to the east.
The Commission advises that it wishes to make its decision prior to 28 May 1997.
Thank you for the submissions made by the Council on the application.
The Commission has advised the applicant on this resolution."
DAC also wrote to Boscaini’s Planning adviser on 20 May 1997 advising the developers of the DAC resolution as abovementioned. By letter dated 22 May 1997, Bone & Tonkin Planners (acting for the developers) put forward an amended proposal. As compared with the original application the essential changes may be summarised as follows:
ORIGINAL AMENDED
PROPOSAL PROPOSAL
Cinemas 1,427 seats 1,350 seats
(reduction of 77 seats)
Restaurants 500 seats 476 seats
(reduction of 24 seats)
Retail 1,100m2 of floor area 1.004m2 of floor area
(reduction of 96m2)
Mr Cooper, an officer of Department for Housing and Urban Affairs made an affidavit in which he says:
After the meeting of the Commission on the 15th day of May, 1997, the Mayor of the Plaintiff Council rang me on two occasions to discuss the progress of the Development Application. I advised her of the resolutions made by the Commission and outlined the nature of the amendments made to the Development Application; I also agreed to send her a copy of the amended plans. I recall that on or about the 4th day of June 1997 I sent the Mayor a copy of the amended plans received by the Commission on the 3 day of June 1997, by courier."
On 28 May 1997 DAC considered the "amended application" of Boscaini. In the absence of any specific provision in the Kensington and Norwood Development Plan as to car parking requirements for cinemas DAC decided to assume an occupancy rate of 50% of cinema seats at peak times and to require one car parking space for every 3 occupied seats. In the result, after assessing all available parking facilities DAC concluded that Boscaini would have to reduce demand (or increase supply) by the equivalent of 11 car parking spaces.
On 28 May 1997 DAC passed resolutions as follows:
"A. The Commission resolved to DEFER its decision and seek a further response from the applicant with regard to on-site car parking so as to reduce the demand, or increase the supply, so as to provide the equivalent of an additional eleven (11) car parking spaces. The applicant also be requested to provide subject to satisfactory documentary evidence for other cinemas in South Australia and interstate to substantiate the use of an occupancy rate of 50% for the peak cinema sessions.
B. The Commission further resolved to delegate to the Acting Presiding Member authority to issue provisional development plan consent subject to the satisfactory resolution of the above issues."
On 29 May 1997 DAC wrote to Boscaini and an extract from that letter reads as follows:
"At its Special Meeting on 18 [sic] May, 1997 the Development Assessment Commission deferred making a decision on the above application pending receipt of information from the applicant detailing a further reduction in demand of not less than eleven (11) car parking spaces. This reduction in demand must come from the restaurants or cinemas or both. Any car parking spaces forming part of the reduction or increase in supply must be available on the site of the proposed development."
On 3 June 1997 Boscaini’s planning adviser wrote to DAC providing amended plans which had the effect of reducing the intensity of the development (by reducing the number of restaurant seats by 21 and by increasing by 4 the number of spaces in the car park on the site of the development). The reduction of 21 seats in the restaurant represented a reduction by seven in the required number of parking spaces and this number together with the four additional car parks represented nominally an overall improvement of 11 in the number of on-site car parks as compared with the proposal as it previously stood.
The proposal in its final form was for a development of a cinema complex of 1350 seats, restaurants of 455 seats and retail floor space of 1004 square metres to be serviced by 292 car parks.
Boscaini’s submission was that in the absence of any specific scale of cinema car parking in the Development Plan a ratio of one car park for every three occupied seats should be applied and that the occupied cinema seats should be assessed at 50% of those available.
The proposal in its final form as regards to on site car parking at time of peak usage (ie. on Friday and Saturday nights) was as follows:
Car Parks
Cinema- 1350 seats - 1/3 of 1/2 thereof = 225
Restaurant 455 seats - 1/3 thereof = 152
Total: 377
On site car parks in development = 292
Shortfall of on site car parking = 85
(The parking requirements appropriate to a retail store have been ignored in the above summary because retail stores of the type in the proposed development will not be open for business on Friday and Saturday nights)
On 12 June 1997 Mr TH Evans (the Acting Presiding Member of Development Assessment Commission purporting to act as the Delegate of the Development Assessment Commission) granted Provisional Development Plan Consent upon amended plans the last of which were lodged with DAC by Boscaini on 3 June 1997.
Mr Evans was not employed under the Government Management and Employment Act 1985 and therefore in terms of SA Development Reg104(b)(iii) the delegation required Gazettal.
On 23 October 1997 the following notice appeared in the Government Gazette:
"DEVELOPMENT ACT 1993
Notice of Delegation
PURSUANT to the provisions of section 20 of the Development Act 1993, the Development Assessment Commission hereby delegates to Trevor Haydn Evans of the Commission, the power to grant Provisional Development Plan Consent or Development Approval for Development Application No. 150/4753/96, dated 12 June 1997.
Dated 23 October 1997.
G. HOLLAND-BOOKER, Secretary
DAC000/11/94"
In the meantime at a meeting held on 14 October 1997 the Development Assessment Commission passed a resolution as follows:
The Commission hereby ratifies and adopts the decision to approve and the approval granted by the Acting Presiding Member, Mr Trevor Haydn Evans in Development Application No. 150/4753/96 issued on 12 June 1997.
The Secretary is hereby directed to take the necessary steps to publish in the Gazette resolution B made on 28 May 1997 in Development Application No.150/4753/96."
A proposal said to be seriously at variance with the Development Plan
Based upon the provisions of the Development Plan which I have quoted the Council argues that there is inadequate provision of on-site car parking in Boscaini’s proposal even when opportunities for the shared use of parking spaces have been brought to account. The Council argues that there is such disparity between Boscaini’s proposal and the statements of principle in the Kensington Norwood Development Plan that s35(2) of the Development Act circumscribes the power of the "relevant authority" (in this case the Development Assessment Commission) in much the same way as s47(9) of the former Planning Act might invalidate a council’s decision under the repealed legislation. In this respect counsel for the plaintiff sought to rely upon the statement of principle by King CJ in R v City of Munno Para ex parte Weeks (1987) 46 SASR 400 at 402-403, where His Honour discussed the effect of s47(9) of the former Planning Act which was in the following terms:
In deciding whether to consent to a proposed development under this section, a planning authority -
(a) shall have regard to the provisions of the Development Plan so far as they are relevant to that decision; and
(b) shall not make a decision that is seriously at variance with those provisions."
At 403 King CJ said:
"… The new paragraph is expressed in terms of outright prohibition. It is engrafted onto a statutory provision requiring the planning authority to have regard to the plan, compliance with which provision has been held to be a condition precedent to the validity of a grant of consent. The language used in par (b) of subs (9) stands in marked contrast to the language of subs (10) where the prohibition is merely against consenting ‘without having considered’ the requirements of certain instrumentalities and agencies. Under subs (9)(b) the prohibition, if there is serious variance, is absolute.
The courts have had to consider on innumerable occasions questions whether a particular statutory provision affects jurisdiction or vires on the one hand or whether it affects only the merits on the other hand. There is no point in an examination of the authorities because in each case it is a matter of construction of the particular statute. I have reached the conclusion in the present case that the planning authority’s power to grant consent depends upon the proposed consent not being at serious variance with the Development Plan. I must say that I have reached this conclusion with some reluctance because it makes the validity of an important administrative act depend upon debatable questions relating to planning values and the degree of the proposed departure from the Development Plan. Such considerations cannot prevail, however, against the language and structure of the section. Courts are, of course, able to apply criteria, however imprecise, if Parliament requires them to do so: Sutherland Shire Council v Finch (1970) 123 CLR 657 at 666, per Gibbs CJ. I think that the intention of the legislature in amending the section is too plain to be misunderstood. For good or ill, Parliament has decided that the validity of a consent is not to be determined by reference, as is usual, to defined legal criteria but is to depend upon the judgment of a court of law as to whether a proposed development is seriously at variance with the Development Plan. Care will be required on the part of the court, when such an issue comes before it on an application for judicial review, to confine itself to its legitimate role in supervising the legality of the planning process. The court must ensure that it does not become involved in matters of planning merits which are proper for the consideration of the appellate tribunal but which are not jurisdictional in character. An alleged serious departure from the plan can be the basis of intervention by the court on judicial review only if the existence and seriousness of the departure can be discerned plainly by the court from the material before it without the necessity of resolving debatable issues relating to planning merits." (Emphasis added)
Counsel for the plaintiff sought to apply the principles underlying this decision to s35 of the Development Act of which the extract as now relevant is as follows:
"35.(1) If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a provisional development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the relevant Development Plan).
Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless-
(a) where the relevant authority is the Development Assessment Commission-the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;
(b) in any other case-the Development Assessment Commission concurs in the granting of the consent."
It is agreed in terms of the case stated that the development now in question is neither a complying nor a non-complying development. Section 35(1) and (3) have no relevance to the present case except for the purpose of comparison in language with that used in s35(2).
The present argument concerns the construction and application of s35(2). In my opinion the form of that subsection (in the language of King CJ) stands in "marked contrast" to the subsections which respectively immediately precede and follow it. The operation (as the case may require) of s35(1) or (3) (so as to qualify or disqualify a particular development in relation to the granting of planning consent) is dependent upon the applicability of defined legal criteria as set out in the Development Regulations and the Development Plan. Thus (generally speaking) "the total demolition and removal of a building" is an example of a "complying development" (Schedule 4 Part 1 Para 1(c) of Regulations); "a petrol filling station" is an example of a "non complying" development in the plaintiff’s District Centre Zone (see Page 41 Para 17 of Kensington and Norwood Development Plans). Courts are well equipped to identify such developments without becoming involved in matters of planning merit.
However, the operation of s35(2) is dependent upon the formation of a judgment by the relevant authority. In this last mentioned case it is the Authority’s own unfavourable assessment (if such be made) which operates as the disqualifying condition. I will refer to the proscriptive assessment by a relevant authority in terms of s35(2) as a "negative assessment". It is of the essence of such an assessment that it is likely to involve a judgment as to planning merit based upon matters of fact and degree.
Under the repealed legislation (to which I have referred) the Planning Authority was specifically requested to "have regard" to the provisions of the Development Plan. That provision does not appear in the corresponding provision of the Development Act. Instead by implication s35(2) imposes upon the "relevant authority" an obligation to make an evaluation which involves the application of the legal criteria contained in the Development Plan to the facts set out in the particular development application; that process may involve a value judgment but in itself does not involve the exercise of a discretion within the ordinary meaning of that term (compare Aickin J in White v Barron 144 CLR 431 at 449; the court was there concerned with identifying the proper approach in applying the legal test as to whether an applicant had been left without "adequate provision" for the purposes of the Testators’ Family Maintenance Acts). If the relevant authority, having applied itself in good faith to the requirements of s35(2) makes a negative assessment as abovementioned then the terms of the Authority’s own determination in that behalf (rather than the material forming the basis of the judgment) will operate immediately so as to deny the Authority power to grant the relevant provisional development plan consent. The existence of the power to grant consent to the application is thus dependent upon whether the abovementioned process of evaluation produces an unfavourable assessment that the development proposal so departs from the relevant development plan as to be characterised by the relevant authority as "seriously at variance" with it.
The plaintiff challenges by way of judicial review the failure of the "relevant authority" to make the assessment mentioned in s35(2); in principle it may do this by showing:
(a) that the necessary process of evaluation was not undertaken; or
(b) that some error was made in the evaluation process.
The plaintiff’s summons relies upon error of law in the processes of DAC. The error which the plaintiff perceives is in the application to the facts of a legal criterion. The plaintiff contends that there is such a gross inadequacy in the car parking that DAC must have made an error. In City of Enfield v DAC (1997) 69 SASR 99 at 118 this Court reviewed the principles by which the court will determine its ability to recognise error in a planning authority’s decision for the purposes of judicial review. It seems to me that whether error for this purpose can be identified may depend upon the way in which the relevant criterion is expressed and the nature of the issue thereby raised in relation to a particular development application.
Where the Development Plan contains a mandatory specification expressed in arithmetical terms it may not be a difficult task in a particular case to demonstrate to the Supreme Court that the requisite evaluation was not properly made in view of the spirit and intent of the plan. However, if the plan is expressed (as in the present case) in terms of broad principle - so as to leave room for genuine difference of opinion in the exercise of a value judgment - the fact and extent of the departure from the Plan may not be apparent. In the example firstly mentioned the court may be able to act with confidence in its perception of an error whereas in the second mentioned example the requisite process of evaluation is such that the court will not be able to identify error in a complex planning judgment made by an Authority having specialist qualifications . (In practice, of course, the task is unlikely to be fit for resolution in the very simplistic way of my first example without regard to the more general requirements so typically found in a Development Plan.)
In making this observation I have had regard to the remarks of Debelle J in Hayes v DAC (Judgment S6155 - delivered 15 May 1997) at p24:
"The question whether the proposed development is seriously at variance with the Development Plan is not to be resolved simply by mathematical calculation. In those cases where the Development Plan prescribes standards by reference to areas, it is appropriate to make calculations of that kind. But those calculations should not receive undue weight. It is important also to have regard to the spirit and intent of the Development Plan for the zone and the overall intent of the Development Plan for the City of West Torrens."
And at p 25:
"When considering the Development Plan, it is relevant also to bear in mind that it is not expressed with the degree of precision and careful use of language one generally finds in statutes and in other legal documents. It also refers to concepts which have a degree of elusiveness or which are not always expressed in clear terms. A number of the Objectives of the Plan require the exercise of a value judgment. All of those matters serve to underline the warning of King CJ in R v City of Munno Para that the court must ensure that it does not become involved in matters of planning judgment and the departure from the Plan must be capable of being discerned plainly."
In the present case, the argument of the plaintiff that the development is deserving of a negative assessment is not made easier by a debate as to the extent to which other neighbouring private car parks should be brought to account in a planning judgment (having regard to the informal on going arrangements which operate in practice in the Norwood District but which depend upon goodwill and cooperation of landowners for their continuing availability). The question at issue also involves an appreciation of likely future parking pressures in the light of further anticipated development in the area. Whether the parking arrangements proposed by Boscaini are "adequate" within Principle 46 (having regard to Principle 23(j)) and whether there is consequentially such a shortfall as to place the application "seriously at variance" with the plan, raises a complex question upon which I consider that it is inappropriate for the court now to embark. Resolution of this question is not made easier by the voluminous but inconclusive material which accompanies the stated case and bears on the availability of and demand for off-site parking. In the Munno Para case at 402 King CJ said:
"… There is a presumption, to my mind, against a legislative intention that the very validity, as distinct from the correctness, of an administrative act should depend upon such an uncertain factor as a judgment as to whether the decision leading to the administrative act is seriously at variance with a document expressed for the most part in terms of general principles and objectives."
In my opinion this presumption may be applied to s35(2).
The language of s35(2) of the Development Act is different from that used in s47(9) of the repealed Act; it should therefore be expected that those differences in expression when applied to a particular set of circumstances may lead to differences in the manner of application of the new subsection when compared with the repealed subsection.
Section 35(2) requires the relevant authority to make an evaluation of the application in relation to the Plan. An unfavourable evaluation of the application may decide its fate by leading the authority within its power to make the statutory assessment; the decision then operates of its own force as a bar to planning consent.
This process is to be compared with s47(9) of the former Planning Act which prohibited planning consent where the proposal was "seriously at variance" with the Plan. The distinction as now relevant in effect between s35(2) of the Development Act and s47(9) of the repealed Act should be compared with the distinction which I have already observed within s35 of the Development Act itself in the form of subs(2) on the one hand and subss(1) and (3) on the other hand. Under the present s35(2) the power of the relevant authority is circumscribed by its own decision whereas under the former legislation the decision was circumscribed by the terms of the Act itself. This change in the legislation may have ramifications when the court is asked to consider whether the relevant error (as alleged) is one which the court should recognise having regard to the principles reviewed in The City of Enfield case as abovementioned. There will be cases where upon the application of s35(2) the court may now be entitled to defer to the judgment of the Planning Authority in a way which was not possible under the former legislation.
Upon an application for judicial review of a planning decision, the principles upon which this Court acts in its ability to perceive error may not necessarily lead to the same result in terms of relief where a negative assessment has not issued under s35(2) as will be the case if the repealed s47(9) had application.
The remarks of King CJ above quoted in The City of Munno Para case demonstrate how Parliament by its choice of language may impose a supervisory responsibility upon the Supreme Court despite a general reluctance of the court to become involved in planning evaluations.
Under S35(2) Parliament has created a scheme under which the power of the relevant authority (acting bona fide) is circumscribed by its own assessment rather than by reference to the circumstances themselves - as was the case under the repealed legislation. Comparing the present legislation with its predecessor Parliament must be taken to have relieved this Court of some responsibility.
More particularly, it seems to me that Parliament has applied itself to the situation which King CJ identified when he said (see R v City of Munno Para 46 SASR at 402):
"There is an incongruity in a court of law being required, in proceedings which are not by way of appeal against the correctness of the decision but by way of judicial review of its validity, to exercise a judgment of that kind which must depend to such a degree upon the individual’s assessment of competing planning values. There is a presumption, to my mind, against a legislative intention that the very validity, as distinct from the correctness, of an administrative act should depend upon such an uncertain factor as a judgment as to whether the decision leading to the administrative act is seriously at variance with a document expressed for the most part in terms of general principles and objectives."
Whatever may have been the position under the former legislation, the language of s35(2) of the Development Act enables this Court to decline to review the Planning decision which led DAC to its conclusion when assessing the Boscaini application against the requirements of the Kensington and Norwood Development Plan. This Court is not now conducting an appeal from the decision of DAC; the principles upon which the court exercises its supervisory jurisdiction must be distinguished from an appeal process. Bearing in mind the opportunities for exploiting the use of shared property near the Parade at Norwood, it would not be difficult, if making a planning judgment, to justify the actions of DAC in the present case by reference to Principle 23(j) (abovementioned).
Counsel have drawn attention to perceived differences of judicial opinion as to the effect of the changes in the legislation as noted in The City of Enfield case 69 SASR at 124-125. In Mt Gambier Shopping Centre v Village Fair (Judgment S5441 - 25 January 1996) Matheson J reviewed the operation of s35(2) in the light of the authorities - including the decision in Rhylyn v DC Willungs & Anor (1994) EDLR 509 where Debelle J identified the duty of the relevant authority (which I have assumed) in the following terms -
"....when considering any application before it, to determine whether it complies with the Development Plan or is seriously at variance with it or in what other respect it accords or does not accord with the provisions of the Development Plan."
I consider that Matheson J was correct when he said:
"I think it is very likely that Parliament took into account the passages [in the judgment of King CJ in the Munno Para case at 402-404] (in which they recognise the unsatisfactory nature of the old s47(9)) with the intention of further minimising the number of cases where judicial review might be available. In my view, there is now even less scope for such interference than there was at the time of that decision."
In Hayes v Development Assessment Commission (Judgment No.S6155-15 May 1997 Unrep.) Debelle J took issue with the conclusion reached by Matheson J. In a commentary upon the passage which I have quoted Debelle J said:
at p17:
"With respect, I cannot agree that the change in language has minimised the role of the Court. Section 35(2) must be read and understood in the light of the duty of a planning authority to assess an application for development consent against the relevant terms of the Development Plan. The decision as to which of the provisions of the Development Plan are relevant will be made by having regard to the nature of the proposed development. The effect of s35(2) is that, if a planning authority determines that the proposed development is seriously at variance with the Development Plan, it must refuse consent."
and at p18:
"I do not think that the change in language alters the jurisdictional nature of the requirement that the proposal is not to be seriously at variance with the Development Plan. Section 47(9) imposed a duty on a planning authority to have regard to the Development Plan and decide whether the proposal was seriously at variance with it. That same duty is imposed upon a planning authority by s33 and s35 of the Development Act. The difference in language between s47(9) and s35(2) does not alter that fact. The requirement that the proposal is not seriously at variance with the Development Plan continues to be a condition precedent to the grant of development consent. Unless that requirement is satisfied, the planning authority has no power to grant development consent. That conclusion remains, even if the view is taken that Parliament has expressed s35(2) in different terms from s47(9) to take into account the views of King CJ in R v City of Munno Para. Thus, the role of the court remains the same, namely, to determine whether the planning authority had power to grant development consent. The court has that role in order to ensure that there is no unwarranted or arbitrary departure by a planning authority from the prohibition expressed in s35(2)......"
In my opinion (as I have already observed) the change in the statutory language may lead to differences in the manner of application of the new s35(2) when compared to the repealed subsection. Whether the role of the court has in any way changed is a matter which can be reserved for another day.
In R v City of Munno Para (a case decided on the repealed legislation) King CJ noted that the approach of the Supreme Court (in the exercise of its supervisory jurisdiction) was to intervene only in a "clear case" where error was plainly discernible.
In reaching my conclusion in the present case I continue to apply that principle but the issue which now confronts the court upon the application of s35(2) is not the same issue as faced King CJ. It seems to me (as it did to Matheson J) that Parliament has had regard to the difficulties posed for the Court by the repealed legislation.
In my view upon the material before this Court the issue as to the adequacy of the car parking involves a value judgment where there must be considerable scope for a difference in views. The number of cinema car parks required involves the translation of experience from other places to Norwood. It also involves a judgment as to whether a shortfall thus disclosed is significant bearing in mind the other off-street parking which by custom is available. It has not been demonstrated that the DAC made any error of law as alleged.
This is not such an extreme case (as would be the case if, for example, there were no provision for parking in the proposal) as to enable the court to reach the conclusion that DAC must have overlooked a relevant factor.
I would reject the plaintiff’s application insofar as it is based upon the application of s35(2).
Alleged procedural irregularities.
The plaintiff asserts:
(a) that as the owner of land adjoining the proposed development it was entitled to receive notice of the application in terms of s38(4)(a) of the Development Act;
(b) that although the Council reported upon the original application to Development Assessment Commission it was not given a reasonable opportunity to report on the amended application; the Council relied upon Regulation 39(2)(b) of the Development Regulations 1993.
During the course of oral argument the court invited the plaintiff’s counsel to identify whatever real prejudice the Council may have suffered. He was also asked to outline the course which the Council may wish to have followed if given opportunity or notice. However, beyond re-affirming the Council’s stance as to the manner of assessing the adequacy of the car parking the plaintiff did not point to anything of substance which it had not already comprehensively addressed.
The relief sought by the plaintiff upon this application for judicial review lies in the discretion of the court. Even if I accepted (upon the plaintiff’s argument) that there was some further step reserved to the plaintiff by the Development Act and Regulations which has not been taken I would refuse relief in the exercise of a discretion upon the basis that the plaintiff has not been denied anything beyond the right to complete a formality. The Council does not seek to do more than reiterate the points which it has made.
There may be some instances where a formal step is associated with a matter of substance; such was the case in R v SA Planning Commission ex parte City of Unley (1986) 44 SASR 100. That case involved the provision of s35(1) of the repealed Planning Act and Regulations 33(1)(b)(I) thereunder. The council as registered proprietor of a road adjoining a proposed development was not given the regulatory notice and as a result rights of appeal as contemplated by the Act were denied to it. Jacobs J at 102 said
"....the council can only appeal against the planning decision if it is involved in the planning process pursuant to s53 and regs 33, 35, 36 and 37......"
In the present case the proposed development was being handled as a "Category 2 development" under s38(1) of the Development Act 1993 and it has not been suggested that the Council as an adjoining landowner has really been prejudiced by a lack of notice. It has only been denied the opportunity to rehearse yet again its objection and the argument already advanced.
Section 38(4) is in the following terms:
Where a person applies for a consent in respect of the Development Plan for a Category 2 development, notice of the application must be given, in accordance with the regulations, to-
(a) an owner or occupier of each piece of adjacent land; and
(b) ......."
"Owner" is defined in s4(1):
" "owner" of land means-
(a) ......
(b) if the land is alienated from the Crown by grant in fee simple-the owner of the estate in fee simple;" (Emphasis added)
In the present case the plaintiff relies upon the fact that in accordance with s306 of the Local Government Act, the streets adjoining the development are vested in the Council. That section provides that the fee simple of every public street and road within the council’s area is vested in the council. However, the effect of s306 in relation to the abovementioned definition of "owner" need not now be pursued. It was pointed out during argument that even if the roads did not provide the plaintiff with the right to have notice as an adjoining owner, the Council’s ownership of the Town Hall site - on the north western corner of The Parade and George Street would do so; "adjacent land" in s4 includes land within 60 metres of the subject land.
If the Council had been able to demonstrate some utility in exercising a right to make further representations to DAC I would have been inclined to grant relief so as to enable the Council as owner of the Town Hall to make its representations.
Whether the Council relies upon s38(4)(a) or Regulation 38(2)(b) it appears that the Council has already comprehensively voiced its opposition. Accordingly I would refuse relief to the plaintiff based upon the alleged procedural irregularities.
Delegation of power by Development Assessment Commission
The plaintiff bases an argument upon s20 of the Development Act the relevant extracts of which read as follows:
The Minister, the Advisory Committee, the Development Assessment Commission or a council may delegate any power or function vested in or conferred on him, her or it under this Act.
...........Notice of a delegation under this section must, in prescribed circumstances, be given the Gazette.
..........."
The plaintiff also relies upon Development Regulation 104(b); that portion of the Regulation which is now relevant reads as follows:
"Pursuant to section 20(8) of the Act, a notice of a delegation must be given in the Gazette where-
(a)........
(b) in the case of the Development Assessment Commission - the delegation is -
(i) ....
(ii) ....
to a person not employed under the Government Management and Employment Act 1985;"
The consent issued by Mr Evans on 12 June 1997 under the authority of the powers delegated to him on 28 May 1997 required Gazettal.
The Gazette notice which was belatedly published on 23 October 1997 purports to give notice of an act of delegation occurring on that same day - 23 October 1997.
Upon the facts which I have recited Mr Evans was acting under the authority of DAC’s resolution of 28 May 1997. Questions thus arise as to whether Gazettal of the delegation is necessary in order to give legal efficacy to the delegation of authority and whether an irregularity in the terms of the published notice is of significance. In my opinion these questions can be left for another day in view of the actions of DAC. A further question as to the effect of the purported ratification by DAC of its delegate’s actions also need not be answered.
On 14 October 1997 DAC "adopted" Mr Evans’ decision to approve and the approval issued by Mr Evans on 12 June 1997. Therefore as from 14 October 1997 there was in place a decision of DAC which by its own the force put the matter beyond doubt. It has not been suggested that DAC by its action on 14 October 1997 failed to apply itself to its statutory responsibility. For the purposes of this case it does not matter whether DAC’s consent takes effect on 14 October 1997 or some earlier date.
Accordingly the plaintiff is not entitled to relief by reason of the purported delegation of authority by DAC.
Formal orders
In my opinion the court should refuse the relief sought by the plaintiff.
Cox J:
In my opinion the plaintiff’s application should be dismissed. I agree with the reasons of Williams J.
Prior J:
I agree with the order proposed for the reasons published by Williams J.
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