Ditara P/L v City of Norwood, Payneham & St Peters No. Scciv-01-798

DITARA PTY LTD v CITY OF NORWOOD, PAYNEHAM & ST PETERS & ANOR
[2001] SASC 234
Full Court: Perry, Debelle & Bleby JJ

PERRY J. I concur in the dismissal of this appeal for the reasons now given by Debelle J.
DEBELLE J. This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court (“the Environment Court”). The appeal was referred to the Full Court by order made on 8 June 2001. On 2 July 2001, the Court dismissed the appeal at the conclusion of the addresses of counsel on the footing that reasons would be published later.
The appeal concerns an application for provisional development plan consent by Rising Heights Pty Ltd (“Rising Heights”) to extend an existing building for use as a warehouse and office with associated car parking. The existing building is currently used as an office, store and workshop. It will be converted to a warehouse and the extension will comprise the office. The development is proposed on land at 7 Kensington Road Norwood which is on the northern side of Kensington Road at the corner of that road and Clarke Street.
The land is within the area of the City of Norwood, Payneham and St Peters (“the Council”) and is subject to the Development Plan for that area. The Council is the relevant planning authority. The Council classified the development as a Category 3 development and gave notice pursuant to s 38 of the Development Act 1993. Ditara Pty Ltd (“Ditara”) lodged a representation opposing the application. In December 2000 the Council approved the development application and granted provisional development plan consent. Ditara Pty Ltd was dissatisfied with the Council’s decision and appealed to the Environment Court. The appeal was heard by a Commissioner who dismissed the appeal. Ditara now appeals to this court. The Council has said that it will abide the order of the court. Thus, the protagonists on this appeal are Ditara and Rising Heights.
The subject land is within the Business Zone prescribed by the Development Plan. The Business Zone is divided into seven policy areas. The land is within the West Norwood Policy Area. The Development Plan includes provisions stating the Council’s policy for the proper development of the West Norwood Policy Area and the other policy areas. The issues in this appeal concern the proper interpretation of the provisions of the Development Plan relating to the West Norwood Policy Area.
The Development Plan expresses the relevant objectives of the Business Zone in these terms:
“Objective 1: Development providing offices, consulting rooms, retail showrooms and other businesses and related activities.”
“Objective 2: Development providing warehouses, light and service industry and service trade premises in locations specified hereunder.”
Those objectives are followed by this statement:
“The Business Zone accommodates a range of existing business activities in premises of variable nature and quality, with opportunity for the development and consolidation of offices and consulting rooms with some retail showrooms as well as for the upgrading, expansion and consolidation of business activities. Progressive improvements should be made to the environmental and servicing aspects of business, and development in the zone should progressively upgrade existing business areas and main road frontages.”
If they were the only relevant provisions, the reasons of the Commissioner show that the proposed development satisfies the objectives of the Business Zone. However, there are other relevant provisions.
The provisions of the Development Plan relating to the West Norwood Policy Area are expressed in these terms:
“The West Norwood Policy Area related to the arterial road frontages of The Parade and Fullarton Road in West Norwood. It should be consolidated as an area for high quality offices and consulting rooms.
Development should be of medium-scale and should achieve a high standard of landscaping featuring planting of large trees which will reinforce the leafy, avenue character of Fullarton Road and The Parade.
Sites fronting Kensington Road and The Parade east of Charles Street should generally be less intensively developed, recognising the lower-scale of development opposite.
Vehicular movement is dominated by Fullarton Road, The Parade, Magill Road and Kensington Road, which should provide the primary points of access for delivery, service and visitors’ vehicles, in preference to access via the adjoining residential areas.”
All the expert town planners who gave evidence in the Environment Court agreed that the first paragraph of these provisions inaccurately describes the policy area. In their view, the first paragraph intends to refer to the whole of the policy area. However, counsel for the parties differed as to the proper interpretation of this paragraph.
Mr Tredrea, who appeared for the Council, and Mr Botten, who appeared for Rising Heights, both contended that the planners had erred in interpreting this paragraph as applying to the whole of the policy area and not limiting the application of the paragraph to The Parade and Fullarton Road. Mr Costello, who appeared for Ditara, contended that a careful reading of the commentary for other policy areas within the Business Zone showed that the first paragraph of the West Norwood Policy Area applied to the whole of the policy area. Thus, he contended, the criteria to be satisfied by this development were both that the development be of high quality and that it be an office or consulting rooms. As the proposed development was for a warehouse and office and was not of a high quality it failed to satisfy both the relevant criteria.
The Commissioner concluded that there was insufficient guidance in the rest of the provisions concerning the West Norwood Policy Area upon which to decide which of the opposing contentions as to the interpretation of the first paragraph was correct. He decided that an office in connection with a store is a use which can be granted consent within any part of the Business Zone including the West Norwood Policy Area, that the proposed development was an appropriate use in this part of the Business Zone, and that, despite the fact that the siting of the development was not in keeping with the prevailing pattern of development in the locality, on balance the proposal was in sufficient conformity with the provisions of the Development Plan to warrant the grant of provisional development plan consent. He therefore upheld the decision of the Council granting provisional plan development consent.
Ditara seeks to raise three issues on this appeal. They are:
1.What is the proper interpretation of the first paragraph of the policy statement for the West Norwood Policy Area?
2.How did the Environment Court assess the proposed development?
3.Might the Commissioner have made a different decision if he had adopted the interpretation of the first paragraph of the policy statement for which the appellant contends?
Mr Costello, who appeared for Ditara, properly conceded that, if he failed to show that the Commissioner had erred in his interpretation of the first paragraph, the remaining two issues did not require examination.
I turn to the question of how the first paragraph of the policy statement is to be interpreted. It is readily apparent that errors, if not omissions, have occurred in the drafting of the first paragraph of the policy statement for the West Norwood Policy Area. The difficulties begin in the first sentence. That sentence is quite an inaccurate description of the policy area. A Development Plan must be considered as a whole in order to determine its purpose and intent: St Ann’s College v Corporation of City of Adelaide [1999] EDLR 432 at 437 and effect must be given to the maps in the Plan as well as the text: Claude Neon Limited v Corporation of the City of West Torrens (1982) 29 SASR 260 at 271. In other words, the text of the Plan must be read with the attached maps. Reference to map KeN/5 shows that the policy area includes a good deal more than the frontages of The Parade and Fullarton Road. It also includes a relatively substantial part of Kent Town to the north and east of Prince Alfred College as well as another area in Kent Town which has a frontage to Rundle Street. In addition, at the northern end of Fullarton Road and opposite the Maid and Magpie Hotel, the policy area has a frontage to Magill Road, a frontage which is approximately three quarters of the length of the frontage of Kensington Road within this policy area. The conclusion that the policy statement misdescribes the area is reinforced when the description of this policy area is compared with the description of the other six policy areas.
The next difficulty is to determine whether the second sentence of the first paragraph is intended to apply to the whole of the policy area or to some other lesser area and, if so, what area or areas? In other words, does the word “It” apply to the whole of the policy area or some other area? The intention may be to limit its application to the frontages to The Parade and Fullarton Road. Or it may be intended to extend to the frontage of Kensington Road. Or it may be intended to refer to another area or areas.
Mr Costello contended that, in common with the description of the other policy areas, the intent was to refer to the whole of the policy area. Words had been omitted, he said, and the court should remedy the situation by inserting appropriate words. He submitted that the intention was to include at least the frontage to Kensington Road, if not also the frontage to Magill Road. However, there is nothing in the statement about the policy area nor is there anything else in the Development Plan which justifies that interpretation. Indeed, an examination of the policy statements for all of the other policy areas excluding the Beulah Road Policy Area suggests the contrary. All of those five policy areas concern only frontages to arterial roads such as The Parade, Magill Road, King William Street and Dequetteville Terrace. By contrast, this zone includes areas which do not have frontages to arterial roads.
In my view, the intent of the first paragraph is to state that high quality offices and consulting rooms are the desired form of development along The Parade and Fullarton Road. It is not possible to put any other construction on this paragraph, particularly as the policy area includes areas other than The Parade and Fullarton Road.
Further support for the conclusion that the first paragraph of the policy statement is intended to refer only to The Parade and Fullarton Road is to be found in the second paragraph. It promotes the objective of development which will achieve “a high standard of landscaping featuring planting of large trees which will reinforce the leafy, avenue character of Fullarton Road and The Parade”. It suggests that the first two paragraphs are intended to complement one another. Those parts of Fullarton Road and The Parade which are within this zone have a number of substantial trees, which are absent in other areas of this zone. The fact that Kensington Road is expressly mentioned in each of the final two paragraphs of the policy statement is further confirmation that the first paragraph does not refer to Kensington Road.
The effect of Mr Costello’s argument is that the court must add words in this part of the Development Plan. That course is not open to it. While a Development Plan is not to be construed like a statute and the court may be prepared to adopt a more liberal approach to interpretation of a Development Plan than to an Act of Parliament, the court cannot, except in the clearest cases, insert words into the Development Plan or read words into it which are not there, particularly where, as here, a literal reading of the Plan is capable of producing an intelligible result. For the reasons above, the first paragraph refers only to the frontages of Fullarton Road and The Parade. Thus, the policy expressed in the Plan is that only in those specifically identified areas is the intended form of development to be high quality offices and consulting rooms. For the reasons already expressed, it cannot be said that the author of the Plan has inadvertently failed to include the Kensington Road frontage in the first sentence. Furthermore, once the court begins to insert words, it embarks upon a dangerous course. If it adds Kensington Road to the first sentence, should it add Magill Road and Rundle Street? The reasons already given suggest that it should not. Where should the court stop in identifying frontages to which the first sentence should refer? Furthermore, once the court begins to add words, it is in effect framing planning policy, a task which is to be performed only by the author of the Development Plan.
The Commissioner based his conclusion only on the provisions of the policy statement for this policy area. He ought to have looked at the Development Plan as a whole and in particular all of the statements concerning each of the other policy areas in this Business Zone. However, whether one has regard to the statement for this policy area alone or to the statements concerning the other policy areas or to the whole of the Development Plan, there is nothing which suggests that the first paragraph is intended to apply to frontages of roads other than Fullarton Road and The Parade.
It is therefore necessary to proceed on the footing that, while the meaning of the first paragraph is not entirely clear, it states that at least along the frontages of Fullarton Road and The Parade the policy is that the development should comprise high quality offices and consulting rooms. Even then a question might exist as to whether that part of Fullarton Road between Beulah Road and Magill Road is intended to be included in the first paragraph but it is unnecessary to stay with that issue now.
The Commissioner proceeded to assess the development against the general provisions of the Development Plan in particular the provisions of this Business Zone. He was correct in doing so. His conclusion is based on an assessment of the planning merits and it was not contended that there was any basis upon which this Court should interfere with that assessment.
For these reasons, I dismissed the appeal.
BLEBY J. I agree with the reasons now published by Debelle J for dismissing this appeal.

[2001] SASC 234

11 July 2001