Eckersley Development Pty Ltd v State Commission Assessment Panel

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ECKERSLEY DEVELOPMENT PTY LTD v STATE COMMISSION ASSESSMENT PANEL
[2019] SASCFC 6
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
25 January 2019
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - NOTICE AND ADVERTISING - ADVERTISEMENT - GENERALLY
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - COURTS OF RECORD - PARTICULAR COURTS
Appeal against dismissal by Environment Resources and Development Court of an application for review of decision by State Commission Assessment Panel categorising a development the subject of an application by GSA Australia Pty Ltd as Category 1 under and for the purposes of section 38 of the Development Act 1993.
The appellants contended that Principle 40 of the Capital City Zone section of the Adelaide (City) Development Plan is ultra vires section 38 of the Act insofar as it assigns all forms of development, other than development that is non-complying or assigned to Category 2, to Category 1. The Judge rejected that contention.
The Assessment Panel contended that the Environment Court had no jurisdiction to decide the question whether Principle 40 was ultra vires section 38 of the Act. The Judge rejected that contention.
The appellants contend on appeal that the Judge erred in not holding that Principle 40 is ultra vires section 38 of the Act. The Assessment Panel contends by way of alternative contention that the Judge erred in holding that the Court had jurisdiction to decide the substantive question. The appellants seek an extension of time by one day in which to appeal.
Held per Blue J (Vanstone and Parker JJ agreeing):
1. Given that the notice of appeal was filed only one day outside the 21 day period, this was due to a mistake by the appellants’ solicitor and no prejudice to the respondents was occasioned thereby, an extension of time should be granted (at [25]).
2. The Environment Court had jurisdiction to determine the validity of Principle 40 because it was an essential step, albeit the only step, to determining the ultimate question whether the Panel had correctly characterised the application (at [35]).
3. Subsection 38(2) of the Development Act on its proper construction does not dictate that only specified forms of development – as opposed to all forms or all but excepted forms of development – can be assigned to Category 1 or 2. Principle 40 Plan is not on its face ultra vires section 38 of the Act (at [66]).
4. Extension of time to appeal granted. Appeal dismissed (at [69]).
Development Act 1993 (SA) sections 38, 86, 88B, referred to.
North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide 2002] SASC 135 ; North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide [2002] SASC 150, considered.

ECKERSLEY DEVELOPMENT PTY LTD v STATE COMMISSION ASSESSMENT PANEL
[2019] SASCFC 6
VANSTONE J:

I would allow an extension of time within which to appeal but dismiss the appeal. I agree with the reasons written by Blue J.
BLUE J:
The first respondent, the State Commission Assessment Panel (the Assessment Panel), categorised a development the subject of an application by the second respondent, GSA Australia Pty Ltd (GSA), as Category 1 under and for the purposes of section 38 of the Development Act 1993 (the Act).
The appellants Eckersley Developments Pty Ltd and Davor Hribar applied to the Environment Resources and Development Court for review of that decision. Their application was refused by the Judge.[1] They appeal against that refusal.
[1] Eckersley Development Pty Ltd & Anor v State Commission Assessment Panel & Anor [2018] SAERDC 33.
The Judge rejected the appellants’ contention that Principle 40 (Principle 40) of the Capital City Zone section of the Adelaide (City) Development Plan (the Development Plan) is ultra vires section 38 of the Act insofar as it assigns all forms of development, other than development that is non-complying or assigned to Category 2, to Category 1.
The Judge also rejected a contention by the Assessment Panel that the Environment Court had no jurisdiction to decide the question whether Principle 40 was ultra vires section 38 of the Act. The Assessment Panel contends by way of alternative contention that the Judge erred and the Court had no such jurisdiction.
The appellants mistakenly lodged their notice of appeal one day outside the 21 day limit. They apply for an extension of time in which to appeal, which is opposed by GSA on the ground that they have not established that they did not deliberately defer filing the notice of appeal until the last day for the ulterior purpose of obtaining a competitive advantage.
Background
GSA owns or has an interest in land on the corner of North Terrace and Frome Street Adelaide (the Land). The Land is situated within the Capital City Zone defined by the Development Plan.
The Capital City Zone comprises most of the “square mile” bounded by North, East, South and West Terraces, out of which smaller areas are designated as falling within other zones. One of those other zones is the City Living Zone. The only area falling within the City Living Zone north of Wakefield/Grote Streets is an area adjoining East Terrace. Another of those zones is the Adelaide Historic (Conservation) Zone which comprises part of the area between Wakefield Street and South Terrace and between Pulteney Street and East Terrace.
Eckersley Developments Pty Ltd owns land at 11-27 Frome Street Adelaide which is adjacent to the Land. Mr Hribar occupies land at 264 North Terrace Adelaide which is adjacent to the Land.
In November 2017 GSA applied for development authorisation to demolish the existing structures and construct a 34 storey building comprising student accommodation and ground floor commercial land uses on the Land.
In March 2018 the Assessment Panel categorised the proposed development as Category 1. It is common ground that if Principle 40 is valid this decision was correct and if it is invalid this decision was incorrect.
In April 2018 the appellants filed their Application for Review in the Environment Court. They contended that the reference in Principle 40 to “all forms of development” being Category 1, other than those excepted, was beyond the power contained in section 38 and accordingly the application fell within residual Category 3 pursuant to section 38. They sought amongst other things an order setting aside the Assessment Panel’s decision and remitting the application for treatment of the proposed development as Category 3.
On 25 July 2018 the Judge held that Principle 40 was valid and refused the appellant’s application for review.
On 16 August 2018 the appellants filed a notice of appeal to this Court against the order dismissing their application for review.
The Assessment Panel filed a notice of contention contending that the Judge’s decision should be upheld on the ground that the Environment Court lacked jurisdiction to determine the application because it involved, impermissibly, a challenge to the legal validity of the Development Plan.
The reasons of the Judge
The Judge rejected the Assessment Panel’s contention that the Court lacked jurisdiction to decide whether Principle 40 is ultra vires section 38 of the Act. The Judge said:
Dr Manetta, counsel for SCAP, argued that the application for review was beyond the jurisdiction of this Court. Dr Manetta argued that the application for review amounts to a direct challenge to the validity of PDC 40, and that only the Supreme Court has jurisdiction to hear and decide a direct challenge to the validity of a provision of the Development Plan.
Dr Manetta submitted that, had the issue of the validity of PDC 40 arisen as a collateral challenge, then, consistent with the decision of the Full Court of the Supreme Court in Zweck v Town of Gawler, it would have been incumbent upon the ERD Court to hear and decide that collateral challenge. However, Dr Manetta said, the question of the validity of PDC 40 does not arise by way of collateral challenge, but by way of direct challenge, because it is the only issue to be decided between the parties. It is the primary issue before the Court, rather than being incidental, or collateral, to the determination of another issue over which the Court undoubtedly has jurisdiction.
…
In determining the question of whether this matter involves a challenge to the validity of PDC 40, and, if so, whether that challenge is a direct challenge or a collateral challenge, it is necessary to reflect upon the issues which may arise in an action under s 86(1)(f) of the Act.
The determination of an application under s 86(1)(f) of the Act for the review of the decision of the relevant authority in relation to the characterisation of a proposed development under s 38 of the Act generally involves consideration of the following issues:
·whether the applicant for review has demonstrated the requisite interest to bring the application for review;
·as a matter of fact, what is the development for which approval is sought by the application…;
·once the form of the development has been ascertained, the proposed development must be compared with the land uses assigned to Categories 1, 2 and 2A by Schedule 9 of the Regulations. This process may involve, for example, consideration of:
othe definition of numerous “forms of development” in Schedule 1 of the Regulations;
ocase law in which the characterisation of relevant forms of development has been discussed;
othe definition of “development” and its components in the Act;
oother schedules of the Regulations which list, for example, development which does not require consent, additional acts and activities which constitute development and acts and activities which are not development for the purposes of the Act;
oif Schedule 9, clause 2(g) is relevant, an assessment will need to be made as to whether the proposed development “is of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development”;
·the relevant provisions of the Development Plan must be examined to ascertain whether the “form of the development” for which approval is sought has been assigned to a category by one of those provisions.
Having regard to all of the issues which fall to be considered by the Court when dealing with an application under s 86(1)(f), I reject Dr Manetta’s submission that the action brought by Eckersley Development and Mr Hribar is in reality no more than a direct challenge to the validity of PDC 40. It is true that, if PDC 40 were invalid, then, if Eckersley Development and Mr Hribar have standing, and if Schedule 9 has no application, and if there is no other applicable provision in the Development Plan, that invalidity will dictate the outcome of the categorisation exercise under s 38 of the Act. However, that does not make this action a direct challenge. The issue as to the validity of PDC 40 is a collateral challenge in the context of this action under s 86(1)(f) of the Act, where the overarching question to be decided by the Court is “what is the categorisation of the development proposed by application 02/A074/17 for public notification purposes under the Development Act 1993?”
Had this matter constituted nothing more than a direct challenge to the validity of PDC 40, then this Court would not have had jurisdiction.
The Judge rejected the appellants’ contention that Principle 40 is ultra vires section 38 of the Act. The Judge referred to and quoted from a decision to that effect by Besanko J in North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide,[2] in respect of which this Court refused leave to appeal.[3] The Judge said:
I am bound by this determination, and, incidentally, I respectfully agree with it. I note that the Full Court of the Supreme Court considered an application for leave to appeal from the judgment of Besanko J, and refused that application on the basis that the point was not reasonably arguable.
[2] [2002] SASC 135.
[3] North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide [2002] SASC 150.
The Judge concluded that the Assessment Panel correctly characterised the proposed development as Category 1.
Extension of time
The Judge refused the appellants’ application on 25 July 2018. Any appeal against that refusal should have been filed within 21 days, that is by 15 August 2018. It was filed on 16 August 2018
The appellants’ solicitor, George Manos, swore an affidavit in support of the application for an extension of time. He said that he received the notice of appeal settled by senior counsel on 14 August and because he was not due to attend work on 15 August he entered 16 August 2018 as the date on the notice of appeal and caused it to be filed on 16 August 2018. He calculated that 16 August 2018 was the last day of the 21 day period and in doing so made an error by one day. The notice of appeal could and would have been filed on 15 August if he had not miscalculated the 21 day period.
Mr Manos’ affidavit was tendered at the commencement of the hearing of the appeal. No application was made by GSA to cross-examine Mr Manos.
During its submissions GSA sought to tender a commercial competitive interest notice of disclosure filed by the appellants pursuant to section 88B of the Act disclosing that an entity associated with Eckersley Developments Pty Ltd has an interest in construction of a building in Adelaide for student accommodation. GSA contended that this was relevant because it is possible that the appellants deliberately delayed filing a notice of appeal until the end of the 21 day period for the ulterior purpose of delaying GSA’s development. GSA contends that there was an onus on the appellants to negate this in Mr Manos’ affidavit.
The Court declined to receive the document tendered by GSA. If GSA wished to tender the document and make the ulterior purpose contention, it was incumbent on it to cross-examine Mr Manos. First, it is a very serious matter to allege that a party and its solicitor engaged in deliberate delaying tactics for an ulterior purpose.[4] If such an allegation is to be made, it must be put in cross-examination. Secondly, it was implicit in Mr Manos’ affidavit that the reason that the notice of appeal was not filed until the end of the 21 day period was because it was not until 14 August that he received the settled notice of appeal from senior counsel. Thirdly, in the absence of cross-examination, this Court would be in no position to make a finding on the question.
[4] Compare Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773, (1999) 87 FCR 134.
It is relatively common for notices of appeal to be filed at the end of the 21 day period because time is usually needed for advice on the prospects and cost of an appeal, instructions to be given by the client to appeal and the notice of appeal to be drawn and settled. The contention by GSA that it is possible that the appellants deliberately delayed filing a notice of appeal until the end of the 21 day period for the ulterior purpose of delaying GSA’s development is purely speculative and inherently implausible.
Given that the notice of appeal was filed only one day outside the 21 day period, this was due to a mistake by the appellants’ solicitor and no prejudice to the respondents was occasioned by its being filed one day late, an extension of time in which to appeal should be granted.
Jurisdiction of the Environment Court
Section 86(1)(f) of the Act is a provision which simultaneously confers jurisdiction on the Environment Court and provides for the making of applications to it. It provides:
86—General right to apply to Court
(1) The following applications may be made to the Court—
…
(f) a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of a piece of adjacent land, may apply to the Court for a review of the matter with respect to—
(i)a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of section 35;
(ii) a decision under section 38 as to the category of the development.
The Assessment Panel contends that the Judge misclassified the question of the validity of Principle 40 as a collateral issue the Court was obliged to consider in determining the section 86 application. The Assessment Panel submits that the Judge ought to have seen it as a threshold jurisdictional issue: does the Environment Court have jurisdiction to determine an application for review that challenges the validity of the Development Plan?
The Panel accepts that, subject to any statutory limitations, the Environment Court has general authority, and indeed an obligation, to determine all matters of fact and law that arise collaterally in the determination of a question over which it has jurisdiction.[5] However, the Panel contends that this principle is irrelevant to determining the prior question of what falls within the Court’s jurisdiction.
[5] Zweck v Town of Gawler [2015] SASCFC 172, (2015) 124 SASR 319 at [62] per Blue J (with whom Nicholson J agreed).
The Panel’s first contention is prefaced by reference to the Judge’s observation that the determination of an application under s 86(1)(f) for the review of the decision of the relevant authority in relation to the characterisation of a proposed development generally involves consideration of multiple issues. The Panel contends that, if the only issue is the validity of a provision of the Development Plan, the Court has no jurisdiction to determine that issue.
The Panel’s first contention must be rejected. An issue is not “collateral” for the purpose of the principle referred to at [28] above because it is one of multiple issues in the matter. Rather it is collateral because it is not the ultimate issue that the court has jurisdiction to decide but merely an intermediate issue that the court must decide as a step in the process of deciding the ultimate issue.[6]
[6] See Davy v Spelthorne Borough Council [1984] AC 262 at 277 per Lord Wilberforce; Ousley v The Queen(1997) 192 CLR 69 at 98-99 per McHugh J.
The Panel’s second contention is prefaced by reference to the fact that only the Supreme Court has, by its judicial review jurisdiction, jurisdiction to hear applications for review of the legal validity of development plans. Only the Supreme Court on judicial review can declare a development plan invalid because it was made for an improper purpose. For example, if a development plan were to categorise all development as category 1 for the purpose of avoiding the inconvenience of having to consider representations or dealing with third party appeals, that would be an improper purpose but only the Supreme Court could entertain a challenge to its validity on that ground. These introductory propositions may be accepted.

The Assessment Panel then contends that an express conferral of jurisdiction would have been expected if the Environment Court were intended to have jurisdiction to rule on the question of a development plan’s validity in a direct challenge to its validity under section 86(1)(f); there is no such express conferral of jurisdiction; therefore it has no jurisdiction to decide on its validity.
The Panel’s second contention must be rejected. The major and minor premises of the Panel’s proposition may be accepted. The problem is the manner in which the conclusion is expressed. If it means that the Environment Court has no jurisdiction to entertain a direct challenge, it is correct but this does not avail the Panel because, for the reasons given above, it does have jurisdiction to entertain a collateral challenge. If it means that the Environment Court has no jurisdiction to entertain any challenge, it is incorrect for the same reason.
Contrary to the Panel’s contention, the Judge proceeded in the correct order: the first question is whether the Environment Court has jurisdiction to determine the ultimate question whether the Panel correctly characterised the application; and the second question is whether determining the validity of Principle 40 was a necessary intermediate step in answering the ultimate question. It is the Panel which is inverting the order by asking first whether the Court has jurisdiction on a direct challenge to determine the validity of Principle 40 and contending that if the answer is no that is the end of its jurisdiction.
The Judge correctly concluded that the Environment Court had jurisdiction to determine the validity of Principle 40 because it was an essential step, albeit the only step, to determining the ultimate question whether the Panel had correctly characterised the application. Although the issue does not arise in this case, it should be noted that the Environment Court does not have power to grant any remedy flowing from the answer to the intermediate question (such as a declaration, damages or an injunction): its power to grant remedies flows only from its answer to the ultimate question whether the Panel’s categorisation was correct.
The Panel does not contend that, if the Judge had jurisdiction to determine the validity of Principle 40, her Honour should in the exercise of a discretion have declined to do so.[7]
The statutory and Development Plan regimes
[7] See the discussion whether such a discretion exists by Besanko J (with whom Duggan, Vanstone and Layton JJ agreed) in Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32, (2006) 93 SASR 568 at [95].
Section 38
The subject of section 38, and indeed the subject of the Act generally, is “development”. The term “development” is defined by subsection 4(1) to mean:
(a) building work; or
(b)a change in the use of land; or
(c)the division of an allotment; or
(d)the construction or alteration (except by the Crown, a council or other public authority (but so as not to derogate from the operation of paragraph (e))) of a road, street or thoroughfare on land (including excavation or other preliminary or associated work); or
(da)the creation of fortifications; or
(e)in relation to a State heritage place—the demolition, removal, conversion, alteration or painting of, or addition to, the place, or any other work that could materially affect the heritage value of the place; or
(f)in relation to a local heritage place—the demolition, removal, conversion, alteration or external painting of, or addition to, the place, or any other work (not including internal painting but including, in the case of a tree, any tree-damaging activity) that could materially affect the heritage value of the place; or
(faa)the external painting of a building within an area prescribed by the regulations for the purposes of this paragraph; or
(fa)in relation to a regulated tree—any tree‑damaging activity; or
(g)prescribed mining operations on land; or
(ga)prescribed earthworks (to the extent that any such work or activity is not within the ambit of a preceding paragraph); or
(h)an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development,
(including development on or under water) but does not include an act or activity that is excluded by regulation from the ambit of this definition;
The term “building work” is defined broadly to mean:
work or activity in the nature of—
(a) the construction, demolition or removal of a building (including any incidental excavation or filling of land); or
(c) any other prescribed work or activity,
but does not include any work or activity that is excluded by regulation from the ambit of this definition;
The principal and most common types of development subject of development applications are change of use, land division and building work.
Section 38 creates a scheme under which all development is categorised as Category 1, 2, 2A or 3 and the assignment of a form of development to a category determines the existence and extent of third party rights to receive notice of and make representations about development applications and appeal against development authorisations. Section 38 refers to three types of third parties:
1owners or occupiers of land adjacent to the land the subject of the proposed development (adjacent owners/occupiers) (who may be expected to be most immediately affected by a proposed development);[8]
2(owners or occupiers of land directly affected to a significant degree by the proposed development (neighbourhood owner/occupiers) (who may be expected to be next affected by a proposed development);[9]
3the public at large.[10]
[8] See the references in subsections 38(3), (3a) and (4) and the definition of “adjacent land” in section 4.
[9] See the reference in section 38(5)(b).
[10] See the reference in section 38(5)(c).
Subsection 38(1) creates the four categories of development. Subsections 38(3) to (18) define the rights of third parties to receive notice, make representations and appeal according to the category to which the proposed development belongs. Subsection 38(2) empowers the Governor by regulation and the Minister and/or Council by development plan to assign a form of development to Category 1 or 2 (or in the case of the Governor to Category 2A) and provides that all other development falls within Category 3.
Subsection 38(1) provides:
38—Public notice and consultation
(1)Subject to this section, there will be 4 categories of development for the purposes of this section—
(a) Category 1 development; and
(ab) Category 2A development; and
(b) Category 2 development; and
(c) Category 3 development.
Subsection 38(5) provides that, where a person applies for a development assessment of a Category 3 development, the relevant authority must give notice to adjacent owners/occupiers, neighbourhood owners/occupiers and the public generally (collectively third parties). Subsections 38(7) and (10)(b) entitle any third party to make representations to the authority in writing and in person. Subsection 38(12) requires the authority to give notice of its decision to any third party who made representations. Section 86(1)(b) provides that a person entitled to be given notice of a decision in respect of a Category 3 development under section 38 (ie any third party who made representations) may appeal to the Environment Court against that decision.
Subsection 38(4) provides that, where a person applies for a development assessment of a Category 2 development, the relevant authority must give notice to adjacent owners/occupiers and any other person prescribed by the Regulations. Subsection 38(7) entitles such persons to make representations to the authority in writing. Subsection 38(12) requires the authority to give notice of its decision to any such persons who made representations. There is no appeal by any third party against the authority’s decision. The position is the same in respect of a category 2A development.[11]
[11] See Development Act 1993 (SA) section 38(3a) and (12).
Subsection 38(3) provides that, where a person applies for a development assessment of a Category 1 development, the relevant authority must not seek the views of adjacent owners/occupiers or any other person. There is no appeal by any third party against the authority’s decision.
Subsection 38(2) is the provision the proper construction of which determines the resolution of this appeal. It empowers the Governor by regulation (under the regulation making power conferred by section 108) and the Minister and/or Council by development plan (under the development plan making power conferred by sections 23(7) and 25 and 26) to assign forms of development to Categories 1 and 2 (and in the case of the Governor also to Category 2A). Any form of development not assigned to Categories 1, 2 or 2A is assigned by section 38(2)(c) to Category 3.
Subsections 38(2) and (2a) of the Act provide:
(2)Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to these categories:
(a)the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan—
(i)if the regulations provide that an assignment by a Development Plan may prevail—the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail (subject to the operation of paragraph (b)); but
(ii) in any other case—the assignment provided by the regulations will, to the extent of any inconsistency, prevail;
(b)the regulations may assign a form of development to Category 2A and this will prevail to the extent of any assignment provided by a Development Plan under paragraph (a);
(c) any development that is not assigned to a category under paragraph (a) or (b) will be taken to be a Category 3 development for the purposes of this section.
(2a)The assignment of a form of development to Category 1 under subsection (2)(a) cannot extend to a particular development if that development involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993.
It can be seen that the categorisation of a development critically affects the rights given to third parties to receive notice of the application, make representations to the authority and appeal to the Environment Court against the authority’s decision on the application.
Section 38 in conjunction with sections 32, 39 and 40 implicitly requires a relevant authority to determine into which category the proposed development the subject of a development application falls because that determination dictates the procedural steps that must be taken by the authority.
Principle 40
Principle 40 of the Development Plan provides:
Public Notification
40.    Categories of public notification are prescribed in schedule 9 of the Development Regulations 2008.
In addition, the following forms of development, or any combination of (except where the development is non-complying), are assigned:
(a)    Category 1, public notification not required:
All forms of development other than where it is assigned Category 2.
(b)     Category 2, public notification required. Third parties do not have any appeal rights.
Any development where the site of the development is adjacent land to land in the City Living Zone or Adelaide Historic (Conservation) Zone and it exceeds 22 metres in building height.
Note for category 3 development, public notification is required. Third parties may make written representations, appear before the relevant authority on the matter, and may appeal against a development consent. This includes any development not classified as either Category 1 or Category 2:
Principle 40 is to be understood in the context of the identification of non-complying development in Principle 39. Principle 39 provides:
Non-complying development
39. The following kinds of development are non-complying:
A change in use of land to any of the following:
Amusement machine centre
Advertisements involving any of the following:
(a)third-party advertising except on Hindley Street, Rundle Mall on allotments at the intersection of Rundle Street and Hindley Street, or temporary advertisements on construction sites;
(b)advertisements located at roof level where the sky or another building forms the background when viewed from ground level;
(c)advertisements in the area bounded by West Terrace, Grote Street, Franklin Street and Gray Street;
(d)animation of advertisements along and adjacent to the North Terrace, King William Street and Victoria Square frontages.
Total demolition of a State Heritage Place (as identified in Table Adel/1).
Vehicle parking except:
(a)where it is ancillary to an approved or existing use;
(b)it is a multi-level car park located outside the Core Pedestrian Area as indicated on Map Adel/1 (Overlay 2, 2A and 3); or
(c)it is within an existing building located outside the Core Pedestrian Area as indicated on Map Adel/1 (Overlay 2, 2A and 3).
The net result of the combination of Principles 39 and 40 is that:
1The only development falling within Category 3 (by virtue of section 38(2)(c)) is development involving a change of use to advertisements or vehicle parking (subject to exceptions) or to an amusement machine centre or total demolition of a State Heritage Place.
2The only development falling within Category 2 is development exceeding 22 metres in building height on land adjacent to the City Living Zone or Adelaide Historic (Conservation) Zone or development prescribed as Category 2 in Schedule 9 of the Development Regulations 2008 (SA).
3All other development is assigned by Principle 40 by default to Category 1.
Validity of Principle 40
The appellants contend that the effect and purpose of subsection 38(2) is to provide that the default category is to be category 3, which is subject to the widest form of third party scrutiny and rights of opposition, except those forms of development that are specifically assigned to Categories 1, 2 or 2A. They contend that subsection 38(2) requires the author of a development plan (the Minister and/or Council) to turn his, her or its mind to the question which forms of development should be assigned to Categories 1 and 2 according to the level of potential impact upon adjacent and neighbourhood owners/occupiers and other third parties.
The appellants contend that an analysis of the text, context and evident purpose of subsection 38(2) demonstrates that, on its proper construction, it only empowers a development plan to assign specified forms of development to Categories 1 or 2: it does not empower a development plan to assign all forms, or all forms except specified forms, of development to Categories 1 or 2. Principle 40 inverts the scheme established by subsection 38(2) by assigning specified forms of development to Categories 2 and 3 (the latter indirectly by excepting non-complying development from assignment to Categories 1 and 2) and assigning all forms of development universally to Category 1 subject only to those exceptions.
GSA, supported by the Assessment Panel, contends that the text of subsection 38(2) does not mandate the assignment of specified forms of development to Categories 1 or 2 and it permits the assignment of all forms of development to either category. There is nothing in the context or evident purpose of subsection 38(2) that indicates otherwise. If subsection 38(2) were to be read as requiring that specified forms of development be assigned, there is nothing in the provision that defines the level of specificity required: on the appellants’ contention a development plan could assign to Category 1 each of the 12 types of development included within the definition of “development” in subsection 4(1) and this would be identical to simply assigning all forms of development to Category 1.
The process of construction of a legislative provision begins with its text but must have integral regard, in construing that text, to its context and evident purpose.
Starting with the text, the basic provision of section 38(2)(a) (in the absence of the regulations subordinating their own provisions to those of a development plan) can be expressed in the following manner:
the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and …if a particular form of development is assigned to a category by both the regulations and a Development Plan the assignment provided by the regulations will, to the extent of any inconsistency, prevail.
The object of the verb “assign” in the first clause is “a form of development”: on the one hand it does not say that the regulations or plan may assign a specified form or specified forms of development; on other hand it does not say that they may assign any or all forms of development.
The object of the verb “assign” in the second clause is “a particular form of development”. This might be thought to support the construction advanced by the appellants by suggesting that the first reference is also to assigning a particular form of development. However, it might be a reference to the actual form of development proposed by the applicant which is caught by assignments (expressed specifically or universally) by both the regulations and the development plan.
On the one hand the provision in section 38(2)(c) that the residual category is Category 3 and the provision in the chapeau of subsection 38(2) that a development plan and the regulations cannot assign to the residual Category 3 anticipate that specified forms of development will be assigned to Categories 1 and 2. On the other hand there is no prohibition on assigning all forms of development to Category 1 or Category 2.
The text is not conclusive as to the constructional choice made by Parliament. It is necessary, as in all cases involving legislative construction, to consider the context and evident purpose of subsection 38(2). The context is that the subsection forms part of section 38 which creates a scheme for the assignment of forms of development to categories which dictates whether and to what extent third parties have notification, consultation and appeal rights. That scheme operates in a manner whereby, in the absence of assignment by the development plan or regulations, a form of proposed development will be Category 3 and will be the subject of full third party notification, consultation and appeal rights.
The evident purpose of subsection 38(2) is to create a regime under which the existence and level of third party notification, consultation and appeal rights is matched by the development plan and regulations to the level of the potential effect of the development on third parties. A proposed development that will have little or no effect on adjacent owner/occupiers or others is apposite to be assigned to category 1. A proposed development that will have a significant effect on adjoining or neighbourhood owners/occupiers is apposite to be assigned to category 2 or 2A. A proposed development that will have a more substantial effect on adjoining or neighbourhood owners/occupiers or a significant effect on third parties is apposite to be assigned to category 3.
It may be accepted, as the appellants submit, that subsection 38(2) requires the author of a development plan, being the Minister and/or the Council, to turn his, her or its mind to the question which forms of development should be assigned to Categories 1 or 2 according to the level of potential impact upon adjacent and neighbourhood owners/occupiers and third parties. It may be accepted that a failure to do so might be the subject of successful judicial review proceedings, just as a decision to assign all forms of development to category 1 to avoid notification, consultation and appeal rights might be the subject of successful judicial review proceedings in the example proffered by the Assessment Panel referred to above. However, these matters involve the process by which the outcome is arrived at: they do not involve the outcome per se.

In the present case, given the limited jurisdiction of the Environment Court to entertain only a collateral challenge, the appellants did not and could not challenge the process whereby the author of the Development Plan determined that it was appropriate to assign all forms of development, except non-complying development and development assigned to Category 2, to Category 1. The appellants were constrained to accept in the Environment Court, and consequentially in this Court, that there was no such failure of process. They were constrained to contend that subsection 38(2) on its proper construction does not permit an outcome whereby all forms of development, or all forms of development subject to specified exceptions, are assigned to Category 1 or Category 2.
The chief difficulty with the construction advanced by the appellants is the one identified by the respondents: the appellants accept that on their construction a development plan could assign each of the 12 types of development the subject of the definition in section 4 to Category 1. They accept for example that on their construction a development plan could assign all change of use and/or all building work and/or all land division to Category 1. There is no material difference between assigning all forms of development to Category 1 and assigning each of the 12 types of development the subject of the definition of development to Category 1.
When this consideration is coupled with the considerations that the text does not unequivocally point to the construction advanced by the appellants and the context and evident purpose of subsection 38(2) point more to the process of making rather than the outcome of development plans, the conclusion is that subsection 38(2) on its proper construction does not dictate that only specified forms of development – as opposed to all forms or all but excepted forms of development – can be assigned to Category 1 or 2.
This is the same conclusion as that reached by Besanko J in North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide,[12] in respect of which this Court refused leave to appeal.[13] Accordingly it is unnecessary to consider the binding status of a decision of this Court on leave to appeal or the circumstances in which this Court will decline to follow a previous decision of this Court.
[12] [2002] SASC 135 at [20]-[23].
[13] North Adelaide Village Shopping Centre Pty Ltd v The Corporation of the City of Adelaide [2002] SASC 150 at [6] per Doyle CJ, Perry and Lander JJ.
Principal 40 of the Development Plan is not on its face ultra vires section 38 of the Act. The Judge was correct to so hold.
Conclusion
An extension of time by one day for the appellants to appeal should be granted. The appeal should be dismissed.
PARKER J:
I agree with the reasons of Blue J. I would grant an extension of time but dismiss the appeal.

[2019] SASCFC 6

25 January 2019

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