Geber Super Pty Ltd v The Barossa Assessment Panel

[2023] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

GEBER SUPER PTY LTD v THE BAROSSA ASSESSMENT PANEL

[2023] SASC 154

Judgment of the Honourable Justice Blue  

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - CONSENT AUTHORITIES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

In September 2021 the first respondent granted planning consent for the development of land at 252 Murray Street Tanunda owned by the second respondent. The proposed development was described as tourist accommodation consisting of 141 rooms and six villa units; function centre; restaurant; café, shops and associated facilities.

The proposed development fell within the Rural Zone contained in the Planning and Design Code made under the Planning, Development and Infrastructure Act 2016 (SA). The class of development of the proposed development was primarily (if not exclusively) tourist accommodation.

Performance outcome 6.3 for the Rural Zone provides that “Tourist accommodation is associated with the primary use of the land for primary production or primary production related value adding industry to enhance and provide authentic visitor experiences.”

Performance outcome 1.1 for the Rural Zone provides that “The productive value of rural land for a range of primary production activities and associated value adding, processing, warehousing and distribution is supported, protected and maintained.”

The applicants seek judicial review of the first respondent’s decision on six sets of grounds:

1the proposed development was seriously at variance with the Code and it was legally unreasonable for the first respondent to conclude otherwise;

2the first respondent failed to consider (or genuinely consider) whether the proposed development was seriously at variance with the Code;

3the first respondent failed to take into account relevant considerations;

4the first respondent took into account irrelevant considerations;

5the decision of the first respondent that the proposed development merited development consent was legally unreasonable; and

6the first respondent imposed unlawful conditions rendering the consent invalid.

Held (granting judicial review and quashing the first respondent’s decision):

1    On the proper construction of the Code, tourist accommodation is not primary production activities and associated value adding, processing, warehousing and distribution within the meaning of Performance Outcome 1.1. Tourist accommodation must be associated with the primary use of the land for primary production or primary production related value adding industry under Performance Outcome 1.1. Standalone tourist accommodation is not envisaged in the Rural Zone (at [160]).

2    The proposed development was seriously at variance with the Code and it was legally unreasonable for the first respondent to conclude otherwise (at [173]-[174]).

3    The first respondent failed to consider whether the proposed development was seriously at variance with the Code (at [244]-[249]).

4    The first respondent failed to take into account relevant considerations (at [255]).

5    The applicants have not established that the first respondent took into account irrelevant considerations (at [263]-[264]).

6    The decision of the first respondent that the proposed development merited development consent was legally unreasonable (at [266]).

7    It is not necessary to decide whether the first respondent imposed unlawful conditions rendering the consent invalid (at [271]).

8    The decision of the first respondent to be quashed and the parties heard as to orders to be made (at [272]).

Planning, Development and Infrastructure Act 2016 (SA) s 3(1), s, 48, s 49, s 101, s 102, s 107(2)(c), s 107(3)(b). s 132(2); Planning Act 1982 (SA) s 47(9) ; Development Act 1993 (SA) s 35(2), referred to.
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; Adelaide Hills Council Assessment Manager v Parkins [2023] SASCA 66; Coastal Ecology Protection Group Inc v City of Charles Sturt [2017] SASC 136, (2017) 227 LGERA 1; Collector of Customs v Agfa-Gaevaert Ltd (1996) 186 CLR 389 ; Ditara Pty Ltd v City of Norwood, Payneham & St Peters [2001] SASC 234; Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116; F & D Bonaccorso v City of Canada Bay Council [2007] NSWLEC 537; Khabbaz v State Planning Commission [2023] SASCA 10.; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, (2006) 143 LGERA 277; Lesses v Maras (No 3) [2017] SASCFC 154 ; Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120, (2008) 163 LGERA ; Parramatta City Council v Hale (1982) 47 LGERA 319; R v City of Munno Para; ex parte John Weeks Pty Ltd (1987) 46 SASR 400; Telstra Corporation Ltd Corporation of the City of Mitcham [2001] SASC 166, (2001) 79 SASR 509; Upham v The Grand Hotel (SA) Pty Ltd [1999] SASC 414, (1999) 74 SASR 557, considered.

GEBER SUPER PTY LTD v THE BAROSSA ASSESSMENT PANEL
[2023] SASC 154

Civil

1. BLUE J: In September 2021 the first respondent, the Barossa Assessment Panel (the Panel), granted planning consent for the development (the Proposed Development) of land situated at 252 Murray Street Tanunda (the Land) owned by the second respondent, Barossa Central Pty Ltd (Barossa Central). The proposed development was described as tourist accommodation consisting of 141 rooms and six villa units; function centre; restaurant; café, shops and associated facilities.

2. The Proposed Development fell within the Rural Zone contained in the Planning and Design Code (the Code) made under the Planning, Development and Infrastructure Act 2016 (SA) (the Act). The class of development of the Proposed Development was primarily (if not exclusively) tourist accommodation.

3. Performance outcome (PO) 6.3 for the Rural Zone provides that “Tourist accommodation is associated with the primary use of the land for primary production or primary production related value adding industry to enhance and provide authentic visitor experiences.”

4. PO 1.1 for the Rural Zone provides that “The productive value of rural land for a range of primary production activities and associated value adding, processing, warehousing and distribution is supported, protected and maintained.”

5. The applicants seek judicial review of the Panel’s decision. Their primary grounds are that:

   1    the Proposed Development was seriously at variance with the Planning and Design Code (the Code) and it was legally unreasonable for the Panel to conclude otherwise;[1] and

   2    the Panel failed to consider (or genuinely consider) whether the Proposed Development was seriously at variance with the Code.[2]

   [1]    Grounds 1 and 5 (and 3 by incorporation).

   [2]    Ground 2.

6. The applicants’ secondary grounds are that:

   3    the Panel failed to take into account relevant considerations;[3]

   4    the Panel took into account irrelevant considerations;[4]

   5    the decision of the Panel that the Proposed Development merited development consent was legally unreasonable;[5] and

   6    the Panel imposed unlawful conditions rendering the consent invalid.[6]

   [3]    Ground 3 and sub-grounds 1.2 to 1.4.

   [4]    Ground 4.

   [5]    Grounds 1 and 5 (and 3 by incorporation).

   [6]    Grounds 6 and 7.

   Background

7. The Land is and has for several years been owned by Barossa Central.

8. The Land has an area of 9.339 hectares. It is approximately wedge-shaped. It has a frontage onto Buring Road to the north[7] of 312 metres.[8] It has a frontage onto Barossa Valley Highway (also known as Murray Street) to the east totalling 397 metres. Its western boundary is 362 metres and its southern boundary is 178 metres.

   [7]    Compass directions are approximate only.

   [8]    Distances rounded to the nearest metre unless otherwise shown.

9. The Land historically comprised a vineyard with a cottage homestead. The vines were removed some years ago but the cottage remains.

10. John Outhred (the interested party) is an urban and regional planner who was engaged as a planner by Barossa Central.

11. On 3 June 2021 Mr Outhred, acting on behalf of Barossa Central, lodged with the Barossa Council an application for planning consent in respect of the Proposed Development (the Application). The Application described the nature of the development as:

    Tourist accommodation consisting of 141 rooms and six villa units; function centre; restaurant; café; two shops; administration building; gymnasium; outdoor BBQ area; car parking and landscaping.

12. The Application was accompanied by a set of plans prepared by Daring Digital (the Plans). The Plans described the Proposed Development as “Proposed 5 Star Resort”.

13. The Plans show a main vehicular entry approximately halfway along the frontage to Barossa Valley Highway/Murray Street. The road into the property almost circumnavigates the buildings. After entry into the property, it divides into two limbs. One limb (the southern limb) proceeds westerly leading to a series of car parking spaces to the south of and serves the Suites described below. The other limb (the northern limb) proceeds initially northerly.

14. The road branches off to the west (the central limb) from the northern limb, proceeding to a circular driveway incorporating a coach drop-off to serve the Main Building described below. The northern limb continues northerly and then westerly leading to a series of car parking spaces serving the Restaurant, Conference Centre, Suites and Villas described below.

15. The Plans also show a pedestrian/bicycle path proceeding broadly around the perimeter of the Proposed Development.

16. The Plans (a-102) show a “main building” (the Main Building) comprising eight buildings or rooms totalling 1,236 square metres and associated car parking and services. The components are:

    ·    an administration area (Admin) at the southern end comprising 105 square metres[9] (linked to the Reception to the north by an admin hallway);

    [9]    Areas in square metres rounded to the nearest square metre.

    ·    a reception (Reception) comprising 157 square metres;

    ·    a bar and bar service area (the Bar) to the north totalling 100 square metres (the bar service area serving not only the bar but also the Dining Room and probably the Conference Centre);

    ·    a dining room (the Dining Room) to the north comprising 173 square metres;

    ·    a kitchen (the Kitchen) to the north comprising 155 square metres (serving the Dining Room and Conference Centre);

    ·    a corridor (the Corridor) comprising 80 square metres proceeding from the Bar past the Dining Room and Kitchen to the Conference Centre;

    ·    a toilet block to the west of the Corridor comprising 61 square metres;

    ·    a conference centre (the Conference Centre) to the north comprising 364 square metres;

    ·    a Porte Cochere to the north comprising 41 square metres linking the Conference Centre to a car parking area);

    ·    a car parking area comprising three car spaces serving Reception;

    ·    a car parking area comprising 17 car spaces serving the Restaurant;

    ·    two car parking areas totalling 53 car spaces serving the Conference Centre;

    ·    a car parking area comprising 14 car spaces serving staff and Kitchen;

    ·    a service yard and loading and catering bay.

17. The Plans (a-103) show “residential suites” comprising seven buildings totalling 6,217 square metres and associated car parking and services. The components are:

    ·    a building entitled “Southern Suites” comprising 2,032 square metres;

    ·    a building entitled “Central Suites” comprising 2,017 square metres located between and 25 metres from the “Southern Suites” and the “Northern Suites”;

    ·    a building entitled “Northern Suites” comprising 1,705 square metres;

    ·    two two-bedroom villas in each of three buildings (the Villas), each building comprising 133 square metres;

    ·    a gym comprising 65 square metres; and

    ·    six car parking spaces totalling 118 car spaces.

    ·    There were a total of 141 suites and six villas.

18. The Plans (a-104) show shops and a café totalling 332 square metres situated between the southern limb and the central limb. The components are:

    ·    a building comprising two shops (the Shops) totalling 210 square metres[10] plus verandah and service yard (served by the southern limb of the road);

    ·    a café (the Café) comprising 79 square metres plus verandah and alfresco area, the café itself being converted from the existing cottage;

    ·    a toilet block between the Shops and Café comprising 44 square metres being converted from an existing building;

    ·    a car parking area comprising 19 car spaces (served by the southern limb of the road) serving the Shops and Café.

    [10] Areas in square metres rounded to the nearest square metre.

19. The Plans show some incidental facilities such as a barbecue pavilion. They show overspill parking areas which, according to the traffic report, provide 41 additional parking spaces.

20. The Plans include a landscaping plan (a-401) which shows the area outside the roadway that almost circumnavigates the buildings generally comprising existing native vegetation or lawn (with some supplementary planting of plants and trees). They also show three rows of vines to the east of that part of the northern limb of the road that proceeds northerly “to frame the roadway”.

21. The Site Plan (a-101) is reproduced as an annexure (Annexure A) to these reasons.

22. The Application was accompanied by a letter from Mr Outhred dated 30 April 2021. The letter enclosed various documents, including the Plans and a traffic report. Mr Outhred said that the Proposed Development would “provide facilities similar to the 5-star Adelaide CBD international hotel brands – Hilton, Stamford Plaza, The Playford, Peppers Waymouth and the InterContinental. These establishments target interstate and international visitors who are looking for a wide range of on-site facilities and luxury – more than just overnight accommodation.”

23. Mr Outhred said that the Proposed Development was adjacent to land in viticultural use to the north, west and south. To the east, on the other side of Barossa Valley Highway, was residential development and a reserve. The township of Tanunda was located to the south.

24. John Geber is a director of the applicants, Geber Super Pty Ltd and Australian Food & Beverage Group Pty Ltd. The first applicant is the registered proprietor, and the second applicant is the lessee, of land situated at 9 Basedow Road Tanunda. The second applicant carries on a business known as Château Tanunda on that land. The business incorporates viticulture, winemaking, function centres, a croquet lawn and a cricket oval.

25. On 8 July 2021 Griffins Lawyers, acting for Mr Geber, sent a letter to the Barossa Council comprising a representation pursuant to section 107(3)(b) of the Act objecting to the Proposed Development. They contended amongst other things that the Proposed Development was seriously at variance with the relevant provisions of the Code and must be refused development plan consent pursuant to section 107(2)(c) of the Act. They contended that the essential thrust of the Code as it related to the Land was for development of a primary production nature or diversification of existing businesses on land that achieves the Desired Outcomes (DO); whereas the Proposed Development did not involve primary production. They expressed the opinion that PO 1.1 sought that the ability to use this land for primary production purposes must be supported, protected and maintained.

26. On 8 July 2021 URPS, acting for Barossa Residential Estates Pty Ltd, sent a letter to the Barossa Council objecting to the Proposed Development. Objections were also lodged with the Council by three Tanunda residents.

27. On 5 August 2021 Mr Outhred sent a letter to the Council responding to the objections. He attached a letter from Mr Manos dated 2 August 2021 addressing the question of seriously at variance. Mr Manos addressed the seriously at variance test at some length. He expressed the opinion that Griffins had misconstrued the Code and expressed the opinion that the Rural Zone expressly envisages shops, tourism accommodation and function centres. He did not expressly address Griffins’ contention that the Proposed Development was seriously at variance because it was not associated with primary production on the Land.

28. In or before September 2021, Janine Lennon, Senior Assessment Officer, Planning at the Barossa Council, prepared a report for the Panel in relation to the Proposed Development (the Agenda Report). She recommended that the Panel make a series of resolutions including that planning consent be granted subject to three reserved matters and 28 conditions.

29. The Agenda Report included a table under the heading “Quantitative Assessment” containing what she described as a quantitative assessment in relation to quantitative requirements of the Code. It included tourist accommodation having a total floor area of 6,217 square metres which did not comply with the standard of 100 square metres maximum and function centre capacity of 200 seats which did not comply with the standard of 75 seat maximum.

30. The Agenda Report contained the following under the heading “Qualitative Criteria”:

    The proposal is assessed for consistency with the qualitative requirements of the Planning & Development Code (the Code) (refer Attachment 3) and an executive summary as outlined below.

    The proposed development includes multiple land uses that are envisaged within the Rural Zone  but all are envisaged in the form of value adding and the diversifying of a primary production use. Primary production appears to have ceased on the site approximately 10 years ago and there is no primary production opposed to occur in the future.

    The Code repeatedly refers to the proposed land uses being appropriate in association with or as a form of diversification of primary production. It is considered that the lack of primary production on the site is the most critical assessment component of the proposal to the extent that whilst the proposal substantially meets all other provisions of the Code, the assessment is still considered to be very finely balanced.

    In this instance Planning Consent with reserved matters and conditions has been recommended by merrily due to the location, the character of the locality and the existing surrounding development within the locality.

31. The Agenda Report contained the following under the heading “CONCLUSION”:

    Not seriously at variance

    The proposed development is not seriously at variance with the Planning & Design Code.

    Planning consent should be granted

    When assessed against the relevant provisions of the planning & design code it is considered that the proposed development, on balance, warrants Planning Consent subject to conditions recommended below.

32. The Agenda Report then set out the following under the heading “RECOMMENDATION”:

    The Barossa Assessment Panel, having considered the application for consent to carry out development of land and pursuant to the provisions of the Planning, Development & Infrastructure Act 2016 resolves:

    (a) Pursuant to Section 6(2) of the Character Preservation (Barossa Valley) Act 2012, the Barossa Assessment Panel has had regard to the objects of that Act and, in determining this application, seeks to further the objects of that Act.

    (b) That the proposed development is not seriously at variance with the Planning & Design Code.

    (c) To GRANT Planning Consent for Application No. 21008020 by John Outhred to undertake Tourist accommodation consisting of 141 rooms and 6 villa units; function centre; restaurant; café; two shops; administration building; gymnasium; outdoor BBQ area; car parking and landscaping at 252 Murray Street, Tanunda (CT 5890/768) subject to the following reserved matters and conditions:

    Reserved Matters

    In accordance with s102(3)(a) of the Planning, Development & Infrastructure Act  2016 the relevant authority reserves its decision on the following matters:

    [Reserved matters]

    Council Conditions

    [Conditions]

1. Attachment 3 set out provisions of the Code identified by Ms Lennon as relevant and included a comment in respect of each. It included the following passages (Ms Lennon’s comments are italicised for identification):

Zones and Sub Zones
DO 1	A zone supporting the economic prosperity of South Australia primarily through the production, processing, storage and distribution of primary produce, forestry and the generation of energy from renewable sources.
DO 2	A zone supporting diversification of existing businesses that promote value-adding such as industry, storage and warehousing activities, the sale and consumption of primary produce, tourist development and accommodation.

Comment:  Whilst the proposal will provide tourist development and accommodation, it will not be in the form diversifying a primary production use of the site.

…

Shops, Tourism and Function Centres

PO 6.1

Shops are associated with an existing primary production use or primary production related value adding industry to support diversification of employment, provide services to visitors and showcase local and regional products.

DTS/DPF 6.1

Shops

a) are ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industries.

b) offer for sale or consumption produce or goods that are primarily sourced, produced or manufactured on the same allotment or

c) adjoining allotments

d) have a gross leasable floor area not exceeding 100 sqm or 250 sq m in the oase of cellar door.

e) have an area for the display of produce or goods external to a building not exceeding 25 sqm.

Comment: the proposed shops are not associated with an existing primary production use. The applicant does advise that the shops will be for the sale of Barossa Valley produce and a specialised tourist shop selling authentic Australian products, hiring bikes and providing local tourist information.

…

PO 6.3

Tourist accommodation is associated with the primary use of the land for primary production or primary production related value adding industry to enhance and provide authentic visitor experiences. 

DTS/DPF 6.3

Tourist accommodation:

a) is ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industry.

b) in relation to the area used for accommodation:

 i. where in a new building, does not exceed a total floor area of 100 sqm

ii. where in an existing building, does not exceed a total floor area of 150 sqm

c) does not result in more than one facility being located on the same allotment

Comment: the proposed tourist accommodation is not ancillary to primary production, or a primary production related value adding industry. The applicant has acknowledged that no primary production is occurring on the site.

…

PO 6.5

Function centres are associated with the primary use of the land for primary production or primary production related value adding industry.  

DTS/DPF 6.5

Function centres:

a) are ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industry

b) do not result in more than 75 persons for customer dining purposes.

Comment: The proposed function centre is not ancillary to primary production, or a primary production related value adding industry. The applicant has acknowledged that no primary production is occurring on the site. The function centre is proposed to have a capacity of 200 person.

1. Attachment 4 comprised a document entitled “Policy24 – Enquiry” bearing an endorsement at the bottom of each page “printed on 3/06/2021” (the Policy24 – Enquiry document). This document contained a map showing amongst other allotments the Land designated as 252; Property Zoning Details; Development Pathways; and Property Policy Information for above selection. It included extracts from the Code extending over 114 pages. The extracts comprised:

   ·    the provisions under the heading of Rural Zone in Part 2;

   ·    various overlays from Part 3; and

   ·    the General Development Policies comprising Part 4.

2. On 7 September 2021 the Panel met (the meeting). Minutes of the meeting were subsequently produced. The entirety of the minutes were not tendered but pages four to nine were tendered, being the pages dealing with agenda item 7.1 being the Proposed Development (the Minutes).

3. The Minutes suggest that the first substantive item of business was consideration of the Application. In addition to Panel members and Council staff, this part of the meeting was attended by Mr Geber, Mr Outhred, George Manos the solicitor acting for Barossa Central and Nick Paphitis, a principal of Barossa Central.

4. Mr Geber was called on to make oral representations to the Panel, which he did. I address what he said below. Phil Harnett was called on, because he had indicated that he wished to make oral representations, but he was not present. Mr Manos was called on to address the Panel, which he did. I address what he said below.

5. There was then a discussion between Panel members, in the course of which questions were directed to or statements were made by Ms Lennon, Mr Manos and Mr Outhred. I address what was said below.

6. There was then a motion moved and seconded that Ms Lennon’s recommendation (as reproduced at [32] above) be adopted. The motion was carried on a vote by the Panel members.

7. The Minutes record the following under item 7.1:

   Representors
   John Geber addressed the Panel at 5:04pm, and answered questions from the Panel.

   
   

   Phil Harnett on behalf of Barossa Residential Estates Pty Ltd provided a submission but did not attend to address the Panel.

   Applicant
   George Manos (Botten Levinson Lawyers) addressed the Panel at 5:14pm on behalf of the Applicant and answered questions from the Panel.

   
   

   John Outhred (Outhred English Urban & Regional Planners) answered questions from the Panel.

   Recommendation

   The Barossa Assessment Panel, having considered the application for consent to carry out development of land and pursuant to the provisions of the Planning, Development & Infrastructure Act 2016 resolves:

   (a) Pursuant to Section 6(2) of the Character Preservation (Barossa Valley) Act 2012, the Barossa Assessment Panel has had regard to the objects of that Act and, in determining this application, seeks to further the objects of that Act.

   (b) That the proposed development is not seriously at variance with the Planning & Design Code.

   (c) To GRANT Planning Consent for Application No. 21008020 by John Outhred to undertake Tourist accommodation consisting of 141 rooms and 6 villa units; function centre; restaurant; café; two shops; administration building; gymnasium; outdoor BBQ area; car parking and landscaping at 252 Murray Street, Tanunda (CT 5890/768) subject to the following reserved matters and conditions:

   [Reserved Matters and Council Conditions as contained in the Agenda Report]

   Panel Decision

Moved: R Miller	Seconded: G Hewitt
That the recommendation be adopted
CARRIED

1. On 8 September 2021 the Council issued to Mr Outhred a decision notification form stating that planning consent had been granted by the Panel subject to reserved matters and conditions set out therein (taken from  the Agenda Report).

2. On 16 December 2021 the applicants instituted this proceeding seeking judicial review of the Panel’s decision.

   Evidence

3. I received four affidavits sworn by Mr Geber on 13 December 2021, 1 May 2022, 20 April 2023 and 16 May 2023. Mr Geber also gave oral evidence in chief and was cross-examined and re-examined. I also received handwritten notes made by Mr Geber prior to the meeting and documents made or marked by him during his oral evidence.

4. I received a typed version of handwritten notes made by Mr Manos during the Panel discussion component of the Panel meeting. It is an agreed fact that Mr Manos’ notes do not record everything that was said. They are not a transcript. It was Mr Manos’ practice to make a note of things he thought were important at the time. Mr Manos’ recollection is that the Panel discussion lasted at least seven minutes and possibly 10 minutes.

5. Mr Geber was cross-examined concerning this component of the meeting by reference to Mr Manos’ notes. He was also cross-examined concerning his own address and Mr Manos’ address by reference to Mr Manos’ notes of those two components. However, Mr Manos’ notes of those two components were not tendered and so I have no evidence from Mr Manos about the discussion during those phases of the meeting.

6. I received various documents, primarily comprising exhibits to Mr Geber’s affidavits.

7. I received a bundle of historical planning approvals in respect of the Land extending from 1969 to 1997 together with an earlier application by Barossa Central in relation to a tourist accommodation complex in 2016.

8. I received a document issued by the Attorney General’s Department entitled “Accredited Authority’s Qualifications, Skills and Experience Requirements for Accredited Professionals” issued in April 2019.

9. I received a statement of agreed facts and a joint memorandum.

   The legislative regime

   The Act

10. The Act largely addresses “development”. Development is defined by subsection 3(1) in terms which include a “change in the use of land” and “building work”.

11. Building work is defined in turn in terms which include “work or activity in the nature of the construction, demolition or removal of a building”. A building is defined in turn in terms which include a building or structure or a portion of a building or structure.

12. Sections 65 and 66 require the preparation and maintenance of the Code. They provide:

    65—Establishment of code

    (1)     There must be a Planning and Design Code.

    (2)The Commission will be responsible for preparing and maintaining the Planning and Design Code.

    66—Key provisions about content of code

    (1)The Planning and Design Code must set out a comprehensive set of policies, rules and classifications which may be selected and applied in the various parts of the State through the operation of the Planning and Design Code and the SA planning database for the purposes of development assessment and related matters within the State.

    (2)     In particular, the Planning and Design Code will—

    (a)     incorporate a scheme that includes the use of zones, subzones and overlays; and

    (b)     specify policies and rules that will—

    (i)govern the use and development of an area within a particular class of zone; and

    (ii)in relation to a subzone, set out additional policies or rules relating to the character of a particular part of a zone; and

    (iii)address specified or defined issues that may apply in any zone or subzone (or a part of any zone or subzone), or across zones or subzones, depending on the circumstances (overlays); and

    (iv)support the adaptive re-use of buildings and places in cases determined to be appropriate under the Planning and Design Code; and

    (c)     include definitions of land use and establish land use classes; and

    (d)     make provision for or with respect to any other matter contemplated by this Act as being included in the Planning and Design Code (to such extent, or in such manner, as the Commission thinks fit); and

    (e)     include any other matter—

    (i)    prescribed by the regulations; or

    (ii)     considered appropriate by the Commission.

    (3)     In connection with subsections (1) and (2)—

    (a)     policies and rules for development in a zone, subzone or overlay should be clear and straightforward; and

    (b)     if relevant, it should be clear which provisions in a zone are being modified by a subzone or overlay and how those provisions are being modified; and

    (c)     the only spatial layers to be used are zones, subzones and overlays; and

    (d)     the provisions of the Planning and Design Code may provide guidance for the development of the public realm; and

    (e)     any policy or rule under the Planning and Design Code may apply in relation to development generally or any class of development; and

    (f)     the Planning and Design Code must comply with any principle prescribed by the regulations or a state planning policy.

    (4)The Planning and Design Code may include provisions that provide for the adaptation of the rules that apply in relation to a specified zone or subzone or as an overlay to provide for necessary and appropriate local variations in specified circumstances, including by permitting in the Code—

    (a)     the variation of a technical or numeric requirement within parameters specified in the Code; and

    (b)     the variation of a requirement applying in a subzone, within parameters specified in the Code, in order to recognise unique character attributes; and

    (c)     the adoption of options for development, specified in the Code, that are additional to those provided in a zone or subzone or as an overlay.

    (5)The Planning and Design Code may be accompanied by advisory material in the form of planning or design manuals or guidelines.

13. Sections 101 and 102 of the Act provide that, subject to other provisions of the Act (which are not relevant in the present case), development can only be undertaken if the relevant authority has assessed the development against and granted consent in respect of, amongst other things, the relevant provisions of the Planning Rules.

14. Sections 101 and 102 relevantly provide:

    101—Development must be approved under this Act

    Subject to this Act, no development may be undertaken unless the development is an approved development.

    102—Matters against which development must be assessed

    (1)Subject to this Act, a development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):

    (a)     —

    (i)    the relevant provisions of the Planning Rules; and

    (ii)to the extent provided by Part 7 Division 2—the impacts of the development,

    (planning consent);

    (b)     the relevant provisions of the Building Rules (building consent);

    …

    (g)     such other matters as may be prescribed.

    …

    (8)A development will be taken to be an approved development when all relevant consents have been granted and a relevant authority has, in accordance with this Act, indicated that the development is approved.

15. “Planning Rules” are defined by subsection 3(1) to include the Code. “Relevant authority” is defined by section 82 to include an assessment panel appointed by a council.

16. Section 103 creates three categories into which development is divided for the purposes of assessment in relation to planning consent. They are:

    1    accepted development;

    2    code assessed development; and

    3    impact assessed development.

17. It is common ground that the Proposed Development falls into the code assessed development category.

18. Sections 105 to 107 effectively divide code assessed development into two subcategories:

    adeemed-to-satisfy development; and

    bperformance assessed development.

19. It is common ground that the Proposed Development falls into the performance assessed development sub-category.

20. Section 107 relevantly provides in respect of performance assessed development:

    107—Performance assessed development

    (1)In a case where proposed development is to be assessed as code assessed development and the development cannot be assessed, or fully assessed, as deemed‑to‑satisfy development, the development will be assessed on its merits against the Planning and Design Code.

    (2)In connection with subsection (1)—

    (a)     to the extent that 1 or more elements of the proposed development may be classified as deemed‑to‑satisfy under the Planning and Design Code (if any)—that part of the development will be taken to have been granted planning consent; and

    (b)     to the extent that paragraph (a) does not apply (including on the basis that that paragraph does not apply at all)—the development will be assessed on its merits against the Planning and Design Code; and

    (c)     to the extent that paragraph (b) applies—the development must not be granted planning consent if it is, in the opinion of the relevant authority, seriously at variance with the Planning and Design Code (disregarding minor variations).

    (3)If a proposed development is to be assessed under this section—

    (a)     subject to a decision of a relevant authority made in accordance with a practice direction, notice of the application for planning consent must be given, in accordance with the regulations, to—

    (i)an owner or occupier of each piece of adjacent land; and

    (ii)members of the public by notice placed on the relevant land; and

    (b)     a person may, in accordance with the regulations and within a period prescribed by the regulations, make representations to the relevant authority in relation to the granting or refusal of planning consent; and

    (c)     if a representation is made under paragraph (b) (being a representation received in accordance with the regulations and within a period prescribed by the regulations), the relevant authority must forward to the applicant a copy of the representation and allow the applicant to respond, in accordance with the regulations and within a period prescribed by the regulations, to those representations.

    (4)The subject matter of—

    (a)any notice required under subsection (3)(a); and

    (b)any representation under subsection (3)(b),

    must be limited to what should be the decision of the relevant authority as to planning consent in relation to the performance based elements of the development as assessed on its merits (and a relevant authority should limit the matters that it will take into account in the same way).

    …

    (7)A planning consent under this section will apply subject to conditions imposed under this Act and subject to such conditions or exceptions as may be prescribed by the regulations or the Planning and Design Code, and subject to any other provision made by this Act or applying under the regulations.

    …

    Not seriously at variance

21. The not seriously at variance requirement was first introduced into a predecessor to the Act in 1985 when subsection 47(9) of the Planning Act 1982 (SA) was amended[11] to insert a new paragraph (b) which provided:

    (9)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.

    [11] By the Planning Act Amendment Act (No 2) 1985 (SA).

22. In R v City of Munno Para; ex parte John Weeks Pty Ltd[12] the Full Court held that planning authorities lacked jurisdiction to consent to a proposed development that was seriously at variance with the relevant provisions of a development plan. King CJ said:

    What is the legal effect of the change made by the introduction of par (b)? There are alternative views. The first is that the new paragraph does not touch the validity of decisions made by a planning authority which has had regard to the plan, but merely provides a ground which, if it exists on the facts of the case, must lead to the refusal of consent… The second view is that the new paragraph circumscribes the legal power of the planning authority to consent to proposed relevant and renders any purported consent which is at serious variance with the plan invalid.

    … It is difficult when the matter is approached as an exercise in statutory construction, to escape the second view. 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. …

    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.[13]

    [12] (1987) 46 SASR 400.

    [13] At 402-403.

1. White J reached the same conclusion. White J said:

   Section 47(9) and (10) create new fetters on what had hitherto been judicially regarded as virtually an “absolute discretion” in a council to “have regard to” and then, for reasons which appeared to it to be adequate, to “disregard” the Development Plan. …

   …

   It is important to note that par (b) of subs (9) does not say “a development, which in the opinion of the council, is seriously at variance”. Instead, par (b) expresses a straightforward criteria which is independent of the council’s opinion and equally capable of practical judgement by the court. I would so construe s 47(9).[14]

   [14] At 412, 416.

2. In that case, the Council consented to an application for construction of a large shopping complex at Smithfield in District Centre Zone E. The land was situated predominantly in Zone F under the relevant development plan. The objective for Zone F was that development be commercial and service activities. This was in contrast to the objective for Zone E which was a central district moderately sized shopping centre (of the size of the proposed development in Zone F).  The Full Court held by majority (Legoe J dissenting) that the proposed development was seriously at variance with the Development Plan. King CJ said:

   There may be minor retail developments, or developments of which retailing is a minor or incidental part, in a zone not intended for retailing, which, although at variance with the plan, could not be regarded as seriously at variance with it. The seriousness of the departure from the plan in the present case, to my mind, arises largely from the magnitude of the proposed shopping centre. It is a major retail shopping centre, and the proposal is that it be located in a zone whose objectives consist of commercial and service activities and do not include retail activities. The proposed development is a departure from the plan of such magnitude, in my opinion, that observance of the planning regime imposed by the Act requires that, to accommodate it, there be an amendment to the plan.[15]

   [15] At 403-404.

3. In 1993, the Development Act 1993 (SA) replaced the Planning Act 1982 (SA). Subsection 35(2) created a not seriously at variance test expressed in different terms. It provided:

   (2)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.

4. In Upham v The Grand Hotel (SA) Pty Ltd[16] judicial review was granted by a Judge quashing a grant of development plan consent on the ground that the proposed development was seriously at variance with the relevant development plan. The Full Court referred to the difference in language between subsection 35(2) and its predecessor section 47(9)(b) and held that jurisdiction was now conditioned on formation of a valid opinion by the relevant authority that the proposed development was not seriously at variance as opposed to the objective fact whether it was not seriously at variance. A decision granting development plan consent could be quashed on the usual grounds, including failure to address the question, failing to take into account a relevant consideration, taking into account an irrelevant consideration or the decision being legally unreasonable.

   [16] [1999] SASC 414, (1999) 74 SASR 557.

5. Doyle CJ and Bleby J (with whom Wicks J agreed) said:

   It is implicitly required by s 35(2) of the Act that, before a consent is granted, the relevant authority must make an assessment that the development is not seriously at variance with the relevant Development Plan. However, the power of the Court to invalidate a consent will turn upon whether the relevant authority directed its mind to that issue, and the validity of the decision that it made. The power of the Court to invalidate a planning consent does not turn upon the Court’s own assessment, at least directly, of whether the development is seriously at variance with the Development Plan.

   To the extent that the judge decided otherwise, and held that the approach taken by this Court in Munno Para to the differently worded s 47(9) is still applicable, we respectfully disagree. However, we agree with the Judge that a relevant authority’s assessment that a development is not seriously at variance with the relevant Development Plan can be set aside if that assessment is made without having regard to a relevant matter, or taking into account an irrelevant matter, is made arbitrarily or if the decision reached is one that no reasonable authority could properly reach. …

   …

   The cases to which we have referred indicate that a failure to conclude that a development is seriously at variance with the Development Plan, or a conclusion that a development is not seriously at variance, will be invalid if the decision results from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter, or if the decision is one that no reasonable authority could properly have reached.[17]

   [17] At [146], [147], [149].

6. In Mar Mina (SA) Pty Ltd v City of Marion[18] Debelle J said (applying the decision of the Full Court in Upham):

   It is implicitly required by s 35(2) that, before a consent is granted, the planning authority must make an assessment that the development is not seriously at variance with the Development Plan. Thus, two issues must be determined. The first is whether the Panel has directed its mind to the question whether the proposed development is seriously at variance with the Development Plan. The second is whether grounds exist on which the development can be set aside as being seriously at variance with the Development Plan.

   …

   The question whether the development consent is invalid does not turn upon the court’s assessment of the question whether the development is seriously at variance with the Development Plan but on whether the consent is invalid because it results from a mistake of law, from reliance upon irrelevant matters, from a failure to take into account relevant matters or if the decision is one that no reasonable authority could properly have reached.

   …

   The existence of an opinion as to whether a development is seriously at variance with the Development Plan is a condition of the exercise of the power to grant development consent.  If the opinion is grounded on a failure to understand the true meaning and intent of the Development Plan, there is an error of law and the necessary opinion does not exist.[19] 

   [18] [2008] SASC 120, (2008) 163 LGERA 24.

   [19] At [34], [49], [58] (Citations omitted).

7. In relation to the meaning of “seriously at variance”, Debelle J said:

   The first question is what is meant by the expression “seriously at variance”.  In this context “seriously” is the adverb reflecting the fourth of the meanings by which the epithet “serious” is defined in the Macquarie English Dictionary, namely “weighty or important”.  Thus, the expression “seriously at variance with the Development Plan” refers to that which is an important or grave departure in either quantity or degree from the Development Plan.  It denotes something which is plainly not slight or trifling.  … It is not enough that the proposal might conflict with the Development Plan; it must be seriously at variance with it.[20]

   [20] At [33] (Citations omitted).

8. In Khabbaz v State Planning Commission[21] Bleby JA (with whom Doyle JA and David JA agreed) said:

   In Mar Mina (SA) Pty Ltd v City of Marion, Debelle J explained that the expression ‘seriously at variance with the Development Plan’ refers to ‘that which is an important or grave departure in either quantity or degree from the Development Plan. It denotes something which is plainly not slight or trifling’. In that case, a parcel of land in a Neighbourhood Centre Zone featured a building that had formerly been used as a supermarket. The applicant wished to establish a small primary school on the land and lodged a development application to that effect.

   The Development Plan exhibited what Debelle J described as a ‘manifest intent’ that should be developed primarily for retail use and ‘for other facilities to serve the commercial and communal needs of the surrounding neighbourhood’. Debelle J concluded that the proposal was seriously at variance with the Development Plan. In reaching that conclusion, he made a number of helpful observations about the approach to be taken in determining whether that is the case. On the role of the Court on a judicial review in this context, he said:

   The question whether the development consent is invalid does not turn upon the court’s assessment of the question whether the development is seriously at variance with the Development Plan but on whether the consent is invalid because it results from a mistake of law, from reliance upon irrelevant matters, from a failure to take into account relevant matters or if the decision is one that no reasonable authority could properly have reached.

   This passage echoes the well-known statement by the High Court in Craig v South Australia. For present purposes, the complaint on appeal is that it was not open to SCAP to assess that the proposed development was not seriously at variance with the DP, given that it has a proposed height in excess of 53 metres. The complaint in its terms is of a failure to meet a statutory standard (‘not seriously at variance’). Satisfaction of that standard requires an evaluative judgment by reference to the parameters set by the Development Plan. The complaint is, then, not strictly a complaint of the unreasonableness of the exercise of a discretion, but rather reflects the ‘illogicality or irrationality’ ground of judicial review, as accepted by a majority of the High Court in Minister for Immigration and Citizenship v SZMDS. Crennan and Bell JJ described this as:

   an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. [22]

   [21] [2023] SASCA 10.

   [22] At [160]-[162] (Citations omitted).

9. Turning to the Act, there is an obvious parallel between section 107(2)(c) of the Act and subsection 35(2) of the previous Act.

10. The previous legislation did not contain the words in parenthesis at the end of section 107(2)(c) of the Act “(disregarding minor variations)”. It is not clear what is the purpose or effect of those words. Barossa Central does not rely on the words in parenthesis as such and they can be disregarded for the purposes of this case.

11. Section 107(2)(c) of the Act provides that a “development must not be granted planning consent if it is, in the opinion of the relevant authority, seriously at variance with the Planning and Design Code (disregarding minor variations)”. In referring to the opinion of the authority, it makes explicit what was held in Upham to be implicit in subsection 35(2) of the predecessor Act, namely that it is the formation of a valid opinion by the relevant authority, as opposed to the objective fact, that is the condition of jurisdiction.

12. Leaving aside the words in parenthesis, it is common ground that the approach to judicial review in respect of a seriously at variance issue is the same under the Act as it was under the predecessor Act.

    The Code

13. Subsection 132(2) of the Act provides that the provisions of the Code that are relevant to the consideration of an application for planning consent and to the resolution of issues arising in subsequent proceedings based on that application are the provisions of the Code as in force at the time the application was made. It is common ground that, as the application was made on 3 June 2021, the relevant version of the Code is version 2021.7 being the version in force as at that date.

    Policy levels

14. The Code contains policies applicable at four levels:

    1    general policies applicable generally contained within Part 4—General Development Policies;

    2    policies applicable to specific zones contained within Part 2—Zones and Sub Zones;

    3    policies applicable to specific sub zones contained within Part 2—Zones and Sub Zones; and

    4    policies applicable to specific overlays contained within Part 3— Overlays.

15. The Proposed Development is located within the Character Preservation District Overlay and is governed by the provisions of Part 3 appearing under the heading “Character Preservation District Overlay” commencing at page 4224 of the relevant version of the Code.

16. The Proposed Development is located within the Rural Zone and is governed by the provisions of Part 2 appearing under the heading “Rural Zone” commencing at page 2116 of the relevant version of the Code. It is not located within a relevant sub zone.

17. The Proposed Development is governed by the provisions of Part 4 commencing at page 4492 of the relevant version of the Code.

18. Part 1 of the Code is entitled Rules of Interpretation. It provides for a hierarchy in the event of inconsistency between policies contained within different levels such that an overlay policy prevails over a sub zone policy, which prevails over a zone policy, which prevails over a general development policy.

    Zone policies

19. In general terms, the provisions applicable to a zone comprise the following elements:

    1a table entitled “Desired Outcome” containing desired outcomes (designated DO1, DO2, etc) (the Desired Outcomes Table);

    2a table entitled “Performance Outcomes (PO) and Deemed-to-Satisfy (DTS) Criteria/ Designated Performance Feature (DPF)” (the Performance Outcomes Table) containing two columns:

    (a)performance outcome(s) (designated PO 1, PO 2, etc);

    (b)deemed-to-satisfy criteria(s) (designated DTS 1, DTS 2, etc)/ designated performance feature(s) (designated DPF 1, DPF 2, etc);

    3a table (Table 1—Accepted Development Classification) identifying classes of development that are classified as Accepted Development subject to meeting the Accepted Development Classification Criteria contained in the table;

    4a table (Table 2—Deemed-to-Satisfy Development Classification) identifying classes of development that are classified as Deemed-to-Satisfy Development subject to meeting the Deemed-to-Satisfy Development Classification Criteria contained in the table;

    5a table (Table 3—Applicable Policies for Performance Assessed Development) identifying policies applicable to the assessment of the identified classes of development contained in the table;

    6a table (Table 4—Restricted Development Classification) identifying classes of development that are classified as restricted subject to any exclusions contained in the table; and

    7a table (Table 5—Procedural Matters (PM)–Notification) identifying classes of performance assessed development that are excluded from notification.

20. Part 1 of the Code describes performance outcomes in the following terms:

    Performance outcomes

    Performance outcomes are policies designed to facilitate assessment according to specified factors, including land use, site dimensions and land division, built form, character and hazard risk minimisation.

21. Part 1 describes desired outcomes in the following terms:

    Desired outcomes

    Desired outcome are policies designed to aid the interpretation of performance outcomes by setting a general policy agenda for a zone, subzone, overlay or general development policies module. Where a relevant authority is uncertain as to whether or how a performance outcome applies to a development, the desired outcome(s) may inform its consideration of the relevance and application of a performance outcome, or assist in assessing the merits of the development against the applicable performance outcomes collectively.

22. Part 1 describes designated performance features in the following terms:

    Designated performance features

    In order to assist a relevant authority to interpret the performance outcomes, in some cases the policy includes a standard outcome which will generally meet the corresponding performance outcome (a designated performance feature or DPF). A DPF provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome, and does not derogate from the discretion to determine that the outcome is met in another way, or from the need to assess development on its merits against all relevant policies.

23. The relationship between these three concepts and Table 3 is as follows. Table 3 identifies the performance outcomes (policies) applicable to a particular class of development. For example, Table 3 within the Rural Zone provisions identifies POs 1.1, 2.2, 3.1 and 10.1 from the Performance Outcomes Table contained in the Rural Zone as applicable together with certain other performance outcomes contained within the general development policies (Part 4) and any relevant sub zone (Part 2) or overlay (Part 3) as applicable to the class of development.

24. The applicable performance outcomes are policies against which a proposed development must be assessed pursuant to sections 102 and 107 of the Act.

25. The desired outcomes assist in the interpretation of the performance outcomes. They are not policies in their own right. However, they set a general policy agenda for a zone. This policy agenda informs policies comprised by the performance outcomes.

26. The designated performance features also assist in the interpretation of the performance outcomes. They identify a standard outcome that will generally meet the corresponding performance outcome. However, they are not policies in their own right. On the one hand, merely because the designated performance features for a corresponding performance outcome are met does not entail that the performance outcome is met because the Code states that the features are only a standard outcome that will generally meet the performance outcome. On the other hand, merely because the designated performance features are not met does not entail that the performance outcome is not met.

27. The applicants tended on occasion to submit that the designated performance features comprised policies in their own right. Barossa Central tended on occasion to submit that the designated performance features are irrelevant to assessment of the policies contained in the performance outcomes. To the extent that those submissions are advanced, I reject them. The role and relevance of the designated performance features are as set out in the previous paragraph.

28. This is in accordance with the decision of the Court of Appeal in Adelaide Hills Council Assessment Manager v Parkins.[23] Bleby JA (with whom Livesey P and Doyle JA agreed) said:

    Lot 21 manifestly does not meet the guidance in Zone DPF 8.1(c). The question then goes back to the planning assessment required by Zone PO 8.1. That is to say, the mere fact that Lot 21 has a 6.13m frontage is something to be taken into account in considering whether the allotments created by the division satisfy Zone PO 8.1.

    …

    Each of these DPFs is a guide to what is generally considered to satisfy the corresponding performance outcome. Neither determines compliance with the performance outcome.

    …

    As discussed above, designated performance features are not requirements. They are guides as to what is capable of satisfying the relevant performance outcome.[24]

    [23] [2023] SASCA 66.

    [24] At [137], [140], [144].

29. The second column contained in the Performance Outcomes Table potentially performs a dual function. In most cases (and relevantly in the present case), it sets out designated performance features. In some cases, it sets out deemed-to-satisfy criteria where Table 2 identifies the class of development as potentially involving deemed-to-satisfy criteria. For example, Table 2 includes an agricultural building (subject to exceptions in respect of certain listed overlays) in respect of which DTS 1.1 (amongst others) applies. The Performance Outcomes Table provides that horse keeping is deemed-to-satisfy PO 1.1. However, Table 2 does not include tourist accommodation, shops or function centres.

1. Part 7 of the Code is entitled “Land Use Definitions”.

2. Part 7 defines “tourist accommodation” as follows:

   Tourist accommodation means premises in which temporary or short-term accommodation is provided to travellers on a commercial basis.

3. Part 7 defines “shop” as follows:

   Shop means:

   (a)premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or

   (b)     a personal or domestic services establishment

   and  includes a bulky goods outlet, personal or domestic services establishment and restaurant

   and excludes a hotel.

4. Part 7 defines “restaurant” as follows:

   Restaurant means land used primarily for the consumption of meals on the site.

5. The Code does not define “function centre”.

   Rural Zone policies

6. The desired outcome table in respect of the Rural Zone was in June 2021 as follows:

Desired Outcome
DO 1	A zone supporting the economic prosperity of South Australia primarily through the production, processing, storage and distribution of primary produce, forestry and the generation of energy from renewable sources.
DO 2	A zone supporting diversification of existing businesses that promote value-adding such as industry, storage and warehousing activities, the sale and consumption of primary produce, tourist development and accommodation.

1. The first eight sets of provisions in the Performance Outcome Table in respect of the Rural Zone were as follows:

Performance Outcome

Deemed-to-Satisfy Criteria / Designated Performance Feature

Land Use and Intensity

PO 1.1

The productive value of rural land for a range of primary production activities and associated value adding, processing, warehousing and distribution is supported, protected and maintained.

DTS/DPF 1.1

Development comprises one or more of the following:

(a) Advertisement

(b) Agricultural building

(c) Brewery

(d) Carport

(e) Cidery

(f) Dairy

(g) Dam

(h) Distillery

(i) Dwelling

(j) Dwelling addition

(k) Farming

(l) Horse keeping

(m) Horticulture

(n) Industry

(o) Intensive animal husbandry

(p) Low intensity animal husbandry

(q)  Outbuilding

(r) Renewable energy facility

(s) Shop

(t)  Small-scale ground mounted solar power facility

(u)  Stock slaughter works

(v) Tourist accommodation

(w) Transport distribution

(x) Verandah

(y) Warehouse

(z) Winery

(aa) Workers’ accommodation

Siting and Design

PO 2.1

Development is provided with suitable vehicle access.

DTS/DPF 2.1

Development is serviced by an all-weather trafficable public road.

PO 2.2

Buildings are generally located on flat land to minimise cut and fill and the associated visual impacts.

DTS/DPF 2.2 Buildings:

(a) are located on sites with a slope not greater than 10% (1-in-10)

(b) do not result in excavation and/or filling of land greater than 1.5m from natural ground level.

Horticulture

PO 3.1

Horticulture is located and conducted on land that has the physical capability of supporting the activity and in a sustainable manner that:

(a) enhances the productivity of the land for the growing of food and produce in a sustainable manner

(b) avoids adverse interface conflicts with other land uses

(c) utilises sound environmental practices to mitigate negative impacts on natural resources and water quality

(d) is sympathetic to surrounding rural landscape character and amenity where horticulture is proposed to be carried out in enclosed buildings such as such as greenhouses.

DTS/DPF 3.1

Horticultural activities:

(a) are conducted on an allotment with an area of at least 1ha

(b) are sited on land with a slope not greater than 10% (1-in-10)

(c) are not conducted within 50m of a watercourse or native vegetation

(d) are not conducted within 100m of a sensitive receiver in other ownership

(e) provide for a headland area between plantings and property boundaries of at least 10m in width

(f) where carried out in an enclosed building such as a greenhouse, the building has a total floor area not greater than 250m²

(g) where in the form of olive growing are not located within 500m of a conservation or national park.

Rural Industry

PO 4.1

Small-scale industry (including beverage production and washing, processing, bottling and packaging activities), storage, warehousing, produce grading and packing, transport distribution or similar activities provide opportunities for diversification and value adding to locally sourced primary production activities.

DTS/DPF 4.1

Industries, storage, warehousing, produce grading and packing and transport distribution activities and similar activities (or any combination thereof):

(a) are directly related and ancillary to a primary production use on the same or adjoining allotment

(b)  are located on an allotment not less than 20ha in area

(c) have a total floor area not exceeding 500m².

PO 4.2

Expansion of established small-scale or new large scale industry (including beverage production and washing, processing, bottling and packaging activities), storage, warehousing, produce grading and packing, transport distribution or similar activities:

(a) are commensurate with the allotment on which it is situated to mitigate adverse impacts on the amenity of land in other ownership and the character of the locality

(b) realise efficiencies in primary production related storage, sorting, packaging, manufacturing and the like

(c) primarily involve primary production commodities sourced from the same allotment and /or surrounding rural areas.

DTS/DPF 4.2

None are applicable.

PO 4.3

Industry, storage, warehousing, transport distribution or similar activities are sited, designed and of a scale that maintains rural character and function and respects landscape amenity.

DTS/DPF 4.3

Buildings and associated activities:

(a) are set back at least 100m from all road and allotment boundaries

(b) are not sited within 200m of a sensitive receiver in other ownership

(c) have a building height not greater than 10m above natural ground level

(d) incorporate the loading and unloading of vehicles within the confines of the allotment.

Dwellings

PO 5.1

Dwellings provide a convenient base for landowners to conduct and manage commercial scale primary production and rural related value adding activities without compromising the use of the allotment, adjacent land or long term purpose of the zone for primary production or related tourism values due to a proliferation of dwellings.

DTS/DPF 5.1

Dwellings:

(a) are located on an allotment with an area not less than:

Minimum Dwelling Allotment Size

Minimum dwelling allotment size is 16 ha

Minimum dwelling allotment size is 20 ha

Minimum dwelling allotment size is 25 ha

Minimum dwelling allotment size is 30 ha

Minimum dwelling allotment size is 32 ha

Minimum dwelling allotment size is 33 ha

Minimum dwelling allotment size is 36 ha

Minimum dwelling allotment size is 40 ha

Minimum dwelling allotment size is 60 ha

Minimum dwelling allotment size is 100 ha

Minimum dwelling allotment size is 200 ha

Minimum dwelling allotment size is 300 ha

Minimum dwelling allotment size is 900 ha

(b) are located on an allotment used for and is ancillary to primary production and/or primary production related value-adding activities

(c) will not result in more than one dwelling on an allotment.

In relation to DTS/DPF 5.1, in instances where:

(d) more than one value is returned in the same field, refer to the Minimum Dwelling Allotment Size Technical and Numeric Variation layer in the SA planning database to determine the applicable value relevant to the site of the proposed development

(e) no value is returned for DTS/DPF 5.1(a) (ie there is a blank field), then there is no minimum dwelling allotment size applicable and DTS/DPF 5.1(a) is met.

PO 5.2

Development resulting in more than one dwelling on an allotment supports ageing in place for the owner of the allotment or multi-generational management of farms in a manner that minimises the potential loss of land available for primary production.

DTS/DPF 5.2

Dwelling that will result in more than one dwelling on an allotment where all the following are satisfied:

(a) It is located within 20m of an existing dwelling

(b) shares the same utilities of the existing dwelling

(c) will use the same access point from a public road as the existing dwelling

(d) it is located on an allotment not less than 40ha in area

(e) will not result in more than two dwellings on the allotment.

PO 5.3

Dwelling are sited, designed and of a scale that maintains a pleasant rural character and amenity.

DTS/DPF 5.3

Dwellings:

(a) are set back from all allotment boundaries by at least 40m

(b)  do not exceed 2 building levels and 9m measured from the top of the footings

(c) have a wall height that is no greater than 6m

PO 5.4

Dwelling additions are sited, designed and of a scale that maintains a pleasant rural character and amenity.

DTS/DPF 5.4                   

Additions or alterations to an existing dwelling:

(a) are set back from all allotment boundaries by at least 40m

(b) do not exceed 2 building levels and 9m measured from the top of the footings

(c) have a wall height that is no greater than 6m

Shops, Tourism and Function Centres

PO 6.1

Shops are associated with an existing primary production use or primary production related value adding industry to support diversification of employment, provide services to visitors and showcase local and regional products.

DTS/DPF 6.1

Shops:

(a) are ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industries

(b) offer for sale or consumption produce or goods that are primarily sourced, produced or manufactured on the same allotment or adjoining allotments

(c) have a gross leasable floor area not exceeding 100m² or 250m² in the case of a cellar door

(d) have an area for the display of produce or goods external to a building not exceeding 25m².

PO 6.2

Shops that are proposed in new buildings are sited, designed and of a scale that maintains a pleasant rural character and amenity.

DTS/DPF 6.2

Shops in new buildings:

(a) are set back from all allotment boundaries by at least 40m

(b) are not sited within 100m of a sensitive receiver in other ownership

(c) have a building height that does not exceed 9m above natural ground level.

PO 6.3

Tourist accommodation is associated with the primary use of the land for primary production or primary production related value adding industry to enhance and provide authentic visitor experiences.

DTS/DPF 6.3

Tourist accommodation:

(a)     is ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industry

(b)     in relation to the area used for accommodation:

 (i) where in a new building, does not exceed a total floor area of 100m²

(ii) where in an existing building, does not exceed a total floor area of 150m²

(c)     does not result in more than one facility being located on the same allotment.

PO 6.4

Tourist accommodation proposed in a new building or buildings is sited, designed and of a scale that maintains a pleasant rural character and amenity.

DTS/DPF 6.4

Tourist accommodation in new buildings:

(a) set back from all allotment boundaries by at least 40m

(b) has a building height that does not exceed 7m above natural ground level.

PO 6.5

Function centres are associated with the primary use of the land for primary production or primary production related value adding industry.

DTS/DPF 6.5

Function centres:

(a) are ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industry

(b) do not result in more than 75 persons for customer dining purposes.

PO 6.6

Function centres are sited, designed and of a scale that maintains a pleasant natural and rural character and amenity.

DTS/DPF 6.6

Function centres:

(a) are located on an allotment having an area of at least 5ha

(b) are set back from all property boundaries by at least 40m

(c) are not sited within 100m of a sensitive receiver in other ownership

(d) have a building height that does not exceed 9m above natural ground level.

Offices

PO 7.1

Offices are directly related to and associated with the primary use of the land for primary production or primary production related value adding industry.

DTS/DPF 7.1

Offices:

(a) are ancillary to and located on the same allotment or an adjoining allotment used for primary production or primary production related value adding industry

(b) have a gross leasable floor area not exceeding 100m².

Adaptive Reuse of Existing Buildings

PO 8.1

Adaptive reuse of existing buildings for small-scale shops, offices, tourist accommodation or ancillary rural activities.

DTS/DPF 8.1

Development within an existing building is for any of the following:

(a) a shop

(b) office

(c) tourist accommodation.

1. Table 3 lists 19 classes of development in respect of which relevant performance outcomes are designated. One of those classes of development is tourist accommodation (commencing at page 2218 of the relevant version) in respect of which PO 1.1, 2.1, 2.2, 6.3, 6.4, 8.1 and 10.1 from the Rural Zone are specified together with various performance outcomes from various overlays.

2. Another of those classes of development is a shop (commencing at page 2208 of the relevant version) in respect of which PO 1.1, 2.1, 2.2, 6.1, 6.2, 8.1 and 10.1 from the Rural Zone are specified together with various performance outcomes from various overlays.

3. For all other code assessed development apart from the 19 classes, Table 3 designates all performance outcomes. This includes in respect of function centres.

   Character preservation district overlay

4. The desired outcome table in respect of the Character Preservation District Overlay was as at June 2021 as follows:

Desired Outcome
DO 1	Recognise, protect and enhance the special character of Character Preservation Districts.
DO 2	The long term use of land outside of townships for primary production and associated value adding enterprises is assured and promoted.

1. POs 2.1 and 2.2 in the Performance outcome Table in respect of the Character Preservation District were as follows:

Performance Outcome

Deemed-to-Satisfy Criteria / Designated Performance Feature

Built Form and Character

PO 2.1

Development occurring at the edge of townships is sympathetic to the rural landscape and reinforces a clear transition between townships and rural landscape through measures including:

(a) being of a low scale

(b) orientating residential development towards the rural area

(c) ensuring visual separation from the rural area through landscaping and road reserves.

DTS/DPF 2.1

None are applicable.

PO 2.2

Development contributes to and maintains the historic identity and character of townships through appropriate:

(a) form

(b) scale

(c) siting

(d) design

(e) landscaping.

DTS/DPF 2.2

None are applicable.

Tourism Development Zone

1. Three areas within the Barossa Valley are within the Tourism Development Zone. They are an area in the south-east corner of Tanunda, on which Château Tanunda is situated; an area south of Tanunda on which the Novotel and Novotel golf course are situated; and an area west of Tanunda on which Seppeltsfield is situated.

2. The desired outcome table in respect of the Tourism Development Zone was as at June 2021 as follows:

Desired Outcome
DO 1	A range of tourist accommodation and associated services and facilities that enhance visitor experiences and enjoyment.

1. The first set of provisions of the Performance Outcome Table in respect of the Tourism Development Zone were as follows:

Performance Outcome

Deemed-to-Satisfy Criteria / Designated Performance Feature

Land Use and Intensity

PO 1.1

Tourist accommodation and a range of complementary entertainment, recreation and service activities catering to the needs and enjoyment of travellers.

DTS/DPF1.1

Development comprises one or more of the following:

(a) Advertisement

(b)  Amenity block, including shower, toilet and laundry facilities

(c) Caravan and tourist park

(d) Coast protection works

(e) Dwelling ancillary to tourist accommodation

(f) Indoor recreation facility

(g) Office ancillary to tourist accommodation

(h) Recreation facility

(i) Retail fuel outlet

(j) Shop

(k) Spa pool

(l) Swimming pool

(m) Tourist accommodation

(n) Tourist information centre

PO 1.2

Shops complement tourist accommodation and recreational activities to provide services and amenities to travellers at a scale that maintains the tourism values at the relevant location.

DTS/DPF1.2

Shop is not a bulky goods outlet and:

(a) is a restaurant ancillary to and in association with tourist accommodation on the same allotment

or

(b) has a gross leasable floor area not exceeding 250m² and is ancillary to another building used for non-residential purposes on the same allotment.

PO 1.3

Offices associated with and ancillary to tourist accommodation or non-residential development support the management and operational aspects of tourist development.

DTS/DPF1.3

Office:

(a) is ancillary to and located on the same allotment as tourist accommodation

(b) has a gross leasable floor area not exceeding 50m².

PO 1.4

Dwellings in the form of a manager or caretaker residence support the efficient management and maintenance of tourist accommodation and related facilities.

DTS/DPF1.4

Dwelling:

(a) is ancillary to and located on the same allotment as tourist accommodation

(b) will not result in more than one dwelling on an allotment.

Not seriously at variance

1. The applicants contend that it was legally unreasonable for the Panel to form the opinion, if it did, that the Proposed Development was not seriously at variance with the Code (ground 1).

2. The applicants contend further or in the alternative that the Panel failed to consider (or genuinely consider) whether the Proposed Development was seriously at variance with the Code (ground 2).

   Legally unreasonable

3. As identified above, the issue is not whether my assessment is that the Proposed Development was seriously at variance with the Code. The issue is whether it was open to the Panel to form an opinion that it was not seriously at variance with the Code; in other words, whether it would have been legally unreasonable for the Panel to form such an opinion in the sense that no panel acting reasonably could have formed such an opinion.

4. This question turns essentially on the construction of provisions contained in the Rural Zone section of the Code. The policies that are particularly relevant are POs 1.1, 6.1, 6.3 and 6.5, informed by DOs 1 and 2 and DPFs 1.1, 6.1, 6.3 and 6.5.

5. Before turning to the issue of construction, I address two issues of approach to construction of the Code.

   Approach to interpretation

6. The Code is a legislative instrument within the meaning of the definition in section 4 of, and is therefore governed by the provisions applicable to legislative instruments contained in, the Legislation Interpretation Act 2021 (SA).

7. In Collector of Customs v Agfa-Gaevaert Ltd[25] the High Court held that the “general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation”.

   [25] (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.

8. Delegated legislation, like primary legislation, must be interpreted by reference to its text, context and evident purpose.[26]

   [26] ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [28] per French CJ, Crennan, Kiefel and Keane JJ; Lesses v Maras (No 3) [2017] SASCFC 154 at [38] per Blue, Parker and Hinton JJ.

9. Because planning legislative instruments are often expressed in terms of policies or principles as opposed to rigid legal rules, context and evident purpose in interpreting the text may assume a greater role than in legislation or legislative instruments expressed in terms of rigid legal rules. In Telstra Corporation Ltd Corporation of the City of Mitcham[27] the Full Court said:

   The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute. A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation.  It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates. As the Court said in District Council of Mallala v M&B Farmer Nominees Pty Ltd, the Plan does not always use expressions in a consistent manner.  Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan.[28]

   [27] [2001] SASC 166, (2001) 79 SASR 509.

   [28] At [25] per Debelle J (with whom Prior, Nyland, Williams and Martin JJ agreed).

1. Although Barossa Central does not submit that Mr Geber was a dishonest witness, nevertheless it submits that he was an unimpressive witness, his claimed recall exceeded the bounds of possibility, his demeanour was combative, he was reluctant to properly answer many questions in cross-examination, and he viewed his role as working out where things were going and complaining when he did not like it.

2. My assessment is that Mr Geber was an honest witness. It is true that he protested that various questions in cross-examination were irrelevant and about the form of other questions in cross-examination. This might be characterised as argumentative although I would not regard it as reaching the level of combativeness. I accept that Mr Geber genuinely believed that the questions involved were irrelevant or not in proper form and expressed that belief despite being told that it was a matter for his counsel to object if questions were regarded as objectionable. While Mr Geber was an unusual witness in this respect, this did not reflect adversely on his honesty.

3. Insofar as Mr Geber viewed his role as working out where things were going and complaining when he did not like it, this was merely part of his protest. It did not involve his attempting to tailor his evidence according to its consequences for his case. I do not accept that Mr Geber’s claimed recall exceeded the bounds of possibility.

4. Barossa Central submits that Mr Geber was not a reliable witness insofar as he did not, and could not, have a clear recollection of everything that was said during the Panel discussion and in particular his recollection is not such that he could negate certain topics being discussed.

5. Barossa Central refers to Mr Geber’s estimate that the Panel discussion took much less than 10 minutes; whereas Mr Manos’ estimate is that it lasted at least seven minutes and possibly 10 minutes. However, Mr Manos’ estimate encompassed the entire Panel deliberations whereas Mr Geber’s estimate encompassed only the discussion before what he characterised as the Chair’s summing up. 

6. Barossa Central invites me to accept the accuracy of Mr Manos’ notes and refers to the fact that Mr Geber did not recall, or did not clearly recall, some of the matters referred to in those notes. Barossa Central refers to the difficulty of Mr Geber attempting to recollect what was said without the benefit of contemporaneous notes. Barossa Central makes various other submissions, which I do not summarise, but all of which I have considered and taken into account.

7. On the one hand, I accept that Mr Geber does not have a perfect recollection of what was said during the Panel discussion and there was discussion on some matters identified in Mr Manos’ notes that Mr Geber does not recall.

8. On the other hand, I am satisfied that the Panel discussion did not address the issue whether PO 1.1 and PO 6.3 required tourist accommodation to be associated with primary production or primary production related industry and whether if so, the Proposed Development was at variance with those policies.

9. I am satisfied that the Panel discussion did not address Mr Geber’s submission to it that the Code is very clear that tourist accommodation and associated tourism uses such as function centres, restaurants and shops on land in the Rural Zone should be associated with the primary production use of the land and the Proposed Development clearly did not comply with this.

10. I am satisfied that the Panel discussion did not address Mr Geber’s submission to it that 147 accommodations, 200 seat function centre and 140 seat restaurant are far removed from the Rural Zone and farming related activities envisaged for a bed and breakfast-style farm stay.

11. I am satisfied that the Panel discussion did not address Griffins’ submission that the essential thrust of the Code as it related to the Land was for development of a primary production nature or diversification of existing business on land that achieves the desired outcomes; whereas the Proposed Development did not involve primary production.

12. The submissions referred to in the previous three paragraphs raised the issue referred to at [134] and the following paragraphs above but the Panel simply did not address it.

13. I accept Mr Geber’s evidence in this respect. This was one of his major contentions and he would have been listening intently for any discussion in relation to it. There is nothing in Mr Manos’ notes referring to any discussion of this topic. Although Mr Manos’ notes are not a transcript or comprehensive, he made a note of things he thought were important at the time and this was clearly an important issue which he himself had addressed to an extent in his letter dated 2 August 2021. If the topic had been discussed, it may be expected that the discussion of the topic would have been lengthy and substantial.

14. I am satisfied that the Panel discussion did not address the actual ratio of areas and capacities of the Proposed Development to the maxima in DPF 6.1, 6.3 and 6.5. Barossa Central accepts that Mr Geber was listening intently for discussion of those multipliers and would recall if they were mentioned. I accept that the Chair addressed the fact of exceedances and posed the question of how exceedances were to be assessed in general terms. However, I am satisfied that there was no discussion of the actual quantum of the exceedances in this case. For example, there was no discussion of the fact that the accommodation areas were 60 times the maximum referred to in DPF 6.3. Further, I am satisfied that there was no discussion of the qualitative significance of these exceedances. For example, there was no discussion whether PO 6.3 contemplated only bed and breakfast-style accommodation as opposed to a five-star resort.

15. I am satisfied that, during the Panel discussion, “serious variance” was not discussed as such. There is nothing in Mr Manos’ notes referring to those words. Again, Mr Manos would have been alert to any discussion on this topic. I accept however that, although the words were not used, there was some limited discussion relevant to the concept of serious variance. That was the matters raised by the Chair in relation to Code exceedances. However, I am satisfied that this was the limit of the discussion relevant to the concept of serious variance.

    Nature of deliberations: collegiate decision-making?

16. The applicants contend that the Panel was required to consider matters collegiately. Barossa Central contends that there is no such requirement and individual Panel members could consider and decide the questions independently of each other. They could simply vote without any discussion.

17. This issue turns on the construction of the Act and the provisions of the Planning, Development and Infrastructure (General) Regulations 2017 (SA). There is no authority in relation to this issue of construction. The parties cited a number of authorities in relation to different contexts, namely Parramatta City Council v Hale,[33] Kindimindi Investments Pty Ltd v Lane Cove Council,[34] F & D Bonaccorso v City of Canada Bay Council,[35] Coastal Ecology Protection Group Inc v City of Charles Sturt[36] and Feldkirchen Pty Ltd v Development Implementation Pty Ltd.[37]

    [33] (1982) 47 LGERA 319.

    [34] [2006] NSWCA 23, (2006) 143 LGERA 277.

    [35] [2007] NSWLEC 537.

    [36] [2017] SASC 136, (2017) 227 LGERA 1.

    [37] [2021] NSWLEC 116.

18. In light of my factual findings above and my conclusion below, it is not necessary to decide this issue because the applicants succeed on this ground of review even on the assumption that Barossa Central’s contention is correct. It is preferable that this issue be left to be decided in a case in which it is determinative. I therefore do not decide it.

    Consideration of serious variance issue

19. Mr Geber put three primary contentions to the Panel as to why the Proposed Development was seriously at variance with the Code.

20. First, the relevant performance outcomes (PO 1.1, 6.3, 6.1 and 6.5) required tourist accommodation, a shop and a function centre to be associated with the primary use of the land in question for primary production or primary production related industry.

21. Secondly, the relevant performance outcomes required tourist accommodation to be small-scale typified by bed and breakfast-style accommodation and a shop and function centre to be small-scale.

22. Thirdly, the relevant designated performance features required tourist accommodation, a shop and a function centre to be much smaller than under the Proposed Development.

23. In turn, this gave rise to three issues or sets of issues that the Panel was required to address before it could determine the serious variance issue.

24. Assuming that collegiate consideration was not required, I am satisfied that none of the Panel members gave consideration to the first issue whether the relevant performance outcomes (PO 1.1, 6.3, 6.1 and 6.5) required tourist accommodation, a shop and a function centre to be associated with the primary use of the land in question for primary production or primary production related industry. I have found that there was no discussion during the Panel’s deliberation of this issue. If any member of the Panel had in their own mind identified this as an issue needing to be considered, I have no doubt that they would have raised it for discussion.

25. The Panel members had before them the Agenda Report, which concluded with Ms Lennon’s recommendations. The Panel members adopted the recommendations without any substantive discussion about them. For example, there was no discussion about the reserved matters or the conditions or the recommendation that the Panel resolve that the Proposed Development was not seriously at variance with the Code.

26. Although not necessary for my conclusion, I note that, in the Agenda Report, Ms Lennon undertook assessments of consistency with the quantitative and qualitative requirements of the Code. Those parts of the Agenda Report are reproduced at [29] and [30] above. In those sections, Ms Lennon did not address the question whether, by reference to the provisions of the Code to which she referred, the Proposed Development was or was not seriously at variance with the Code. On the contrary, she said that the assessment was considered to be “finely balanced” and consent was recommended “primarily due to the location, the character of the locality and the existing surrounding development within it”. After those assessments, Ms Lennon simply set out by way of non sequitur a bald conclusion that the Proposed Development was not seriously at variance with the Code without linking it to her assessments.

27. Given the absence of discussion during the Panel’s deliberations concerning the first issue referred to above, I find that the Panel members adopted a similar approach of not assessing whether the Proposed Development was seriously at variance with the Code because relevant performance outcomes (PO 1.1, 6.3, 6.1 and 6.5) required tourist accommodation, a shop and a function centre to be associated with the primary use of the land in question for primary production or primary production related industry.

28. Assuming that collegiate consideration was not required, I am satisfied that none of the Panel members gave consideration to the second issue whether the relevant performance outcomes required tourist accommodation to be small-scale typified by bed and breakfast-style accommodation and a shop and function centre to be small-scale. I have found that there was no discussion during the Panel’s deliberation of this issue. If any member of the Panel had in their own mind identified this as an issue needing to be considered, again I have no doubt that they would have raised it for discussion. The same observations concerning the Agenda Report apply in relation to this issue as in respect of the first issue.

29. Assuming that collegiate consideration was required, I am satisfied that the Panel members did not give collegiate consideration to the first or second issues.

30. In light of the Chair’s references to exceedances referred to above, I am not satisfied that the members of the Panel did not give any consideration whatsoever to the third issue. In light of my conclusion in respect of the first and second issues, it is unnecessary to decide whether that consideration did not amount to genuine consideration.

31. Barossa Central contends that the decision of the Court of Appeal in Khabbaz is authority that is inconsistent with being able to find that a panel not give consideration to a specific matter. In that case, the judicial review grounds included that the State Commission Assessment Panel applied erroneous reasoning set out in the agenda report. Neither party adduced any evidence of the deliberations of the panel and the applicants’ case was that it should be inferred that the panel so acted. The primary judge declined to draw that inference, which was upheld on appeal. The Court of Appeal distinguished the situation in Coastal Ecology Protection Group Inc v City of Charles Sturt[38] where evidence was adduced of the deliberations of the Council.  Bleby JA (with whom Doyle JA and David JA agreed) said:

    [The appellants] also relied on Coastal Ecology Protection Group Inc v City of Charles Sturt. In that case, Blue J inferred that a Council had not taken two relevant considerations into account. The evidence established that neither consideration had been discussed at the Council meeting where the decision was made.

    There was no evidence to like effect in the present case.[39]

    [38] (2017) 227 LGERA 1.

    [39] At [178]-[179].

32. The decision of the Court of Appeal in Khabbaz does not assist Barossa Central because in this case evidence was adduced of the deliberations of the Panel.

33. The second ground of judicial review is established. It follows that the Panel’s decision must be quashed regardless of the first ground.

    Failure to take into account relevant considerations

34. It is not strictly necessary to decide the applicants’ contentions that the Panel failed to take into account relevant considerations. I address these contentions briefly.

35. The applicants contend that the Panel failed to take into account the following relevant considerations or sets of considerations:

    1the fact that the Land was not in an area that was appropriate for large scale tourist accommodation or tourist accommodation, function centres and shops as the sole or predominant land use;[40]

    2assessment of the Proposed Development or extent of its variance against Rural Zone PO 1; PO 6.1, PO 6.3 or 6.5;[41]

    3the fact that the Code provided that development of the kind and scale proposed was appropriately sited in the Tourism Development Zone and the Township Main Street Zone;[42]

    4whether the Land was suitable or capable of use for primary production;[43]

    5assessment of the Proposed Development or extent of its variance against Character Preservation District Overlay PO 2.1 or PO 2.2.[44]

    [40] Sub-ground 1.2.

    [41] Sub-grounds 3.2, 3.2.3 (misnumbered), 3.3, 3.5.

    [42] Sub-ground 1.3.

    [43] Sub-ground 1.4, 3.11.

    [44] Sub-ground 3.10.

36. Given my conclusions in the previous section, it follows that the Panel failed to take into account the first two sets of relevant considerations and it was required to do so.

37. In relation to the third set of considerations, the provisions of the Tourism Development Zone and the Township Main Street Zone had some relevance to the construction of the Rural Zone performance outcomes but it was relatively small. This might be seen as an aspect of the first and second set of considerations. It does not have sufficient weight in itself to be a mandatory relevant consideration independently of those considerations.

38. In relation to the fourth set of considerations, there was no suggestion at the hearing that the Land was not suitable or capable of use for primary production.  The suggestion was merely that the Land was not in fact being used for viticulture or other primary production. There is no reason to find that the Panel proceeded on the basis other than that the Land was suitable or capable of use for primary production.

39. In relation to the fifth set of considerations, PO 2.1 and 2.2 (together with PO 2.3) in the Character Preservation District overlays section appear under the heading “Built Form and Character”. By contrast, PO 3.1 to 3.6 appear under the heading “Built Form and Character in the Rural Area”. On its proper construction, PO 2.1 refers to land within a township. As the Land is not within the township of Tanunda, PO 2.1 is not applicable. Similarly, PO 2.2 refers to land within a township and is not applicable to the Land.

40. The third ground of judicial review is established in respect of the first and second set of considerations.

    Take into account irrelevant considerations

41. It is not strictly necessary to decide the applicants’ contentions that the Panel took into account irrelevant considerations. I address these contentions briefly.

42. The applicants contend that the Panel took into account the following irrelevant considerations or sets of considerations:

    1    primary production appeared to have ceased on the Land approximately 10 years ago and there was no primary production proposed to occur in the future;[45]

    2    the Land was a good site for tourist development.[46]

    [45] Sub-ground 4.2.

    [46] Not a ground but argued by the applicants without objection by Barossa Central.

43. I am not satisfied that the Panel took into account the cessation of primary production and lack of a proposal to resume it as being relevant to the issue of serious variance. I am not satisfied that the Panel took it into account in assessing the planning merits of the Proposed Development. I am not necessarily satisfied that it would have been an entirely irrelevant consideration of the assessment of the planning merits.

44. I am not satisfied that the Panel took into account the Land was a good site for tourist development as being relevant to the issue of serious variance. If the Panel took it into account in assessing the planning merits of the Proposed Development, I am not satisfied that it would have been an irrelevant consideration of the assessment of the planning merits.

45. The fourth ground of judicial review is not established.

    Planning merits: legally unreasonable

46. The applicants contend that it was legally unreasonable for the Panel to form the opinion that the Proposed Development warranted planning consent in the sense that no panel acted reasonably could have formed such an opinion.

47. Given my conclusion that it would have been legally unreasonable for the Panel to form the opinion that the Proposed Development was not seriously at variance with the Code, it necessarily follows that it was legally unreasonable for the Panel to form the opinion that the Proposed Development warranted planning consent. The fifth ground of judicial review is established.

    Unlawful conditions

48. The applicants contend that conditions 5, 8 and 9 imposed by the Panel were invalid because they impermissibly delegated to the Council the ability to increase the limits the subject of those respective conditions and the unlawful delegation cannot be severed from the conditions or the planning consent as a whole.

49. Conditions 5, 8 and 9 were as follows:

    (5)     Unless with the prior written consent from Council, the development hereby permitted may only operate between the following hours:

    -Function Centre/ Conference Room: Monday to Sunday (including public holidays): 7:00 am to 12 midnight

    -Restaurant and Bar: Monday to Sunday (including public holidays): 7:00 am to 10:00 pm

    -Shops and Café: Monday to Friday: 7:00 am to 9:00 pm; Saturday to Sunday (including public holidays): 8:00 am to 5:00 pm

    …

    (8)     No more than 200 seats shall be made available within the conference room/function centre hereby approved, unless with prior written consent of Council.

    (9)     No more than 140 seats shall be made available within the restaurant hereby approved, unless with the prior written consent of Council.

1. Barossa Central contends that there is nothing repugnant to the Act in empowering the Council, as a local government with the most direct connection to its community, to judge whether dispensation should on occasion be allowed in respect of the limits that would otherwise apply.

2. Barossa Central contends in the alternative that the dispensation power, if invalid, can and should be severed from the conditions. It observes that it did not seek the dispensation power. It contends in the further alternative that it should be allowed an opportunity to seek a variation of the development consent to delete the dispensation powers.

3. In view of my conclusions above, it is not necessary to decide these issues. It is undesirable to do so as I heard only limited submissions from the parties on the issues and it is preferable that they be decided in a case in which they are determinative.

   Conclusion

4. The applicants have established multiple grounds of review. I will make orders quashing the Panel’s decision granting development plan consent. I will hear the parties concerning other orders to be made (including as to costs).

   
   

   ANNEXURE A