Geber Super Pty Ltd v The Barossa Assessment Panel

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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…

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Details
Case
[2023] SASC 154
Decision Date

CaseChat Overview and Summary

Geber Super Pty Ltd brought a proceeding against the Barossa Assessment Panel seeking judicial review of a decision to grant planning consent for the development of land by Barossa Central. The applicants challenged the Panel’s decision on several grounds, including that the Panel failed to take into account relevant considerations, took into account irrelevant considerations, made a legally unreasonable decision, and imposed unlawful conditions. The court examined the legislative framework, the nature of the proposed development, and the evidence provided by both parties. The key issues were whether the Panel appropriately assessed the planning merits of the proposed development and whether the conditions imposed were lawful.

The court found that the third ground of judicial review was established in respect of the first and second sets of considerations. The court held that it was not necessary to decide the applicants’ contentions that the Panel took into account irrelevant considerations as it was sufficient to determine that the Panel failed to take into account relevant considerations. The court concluded that it would have been legally unreasonable for the Panel to form the opinion that the Proposed Development warranted planning consent because the Panel failed to consider relevant planning considerations. The court also found that conditions 5, 8 and 9 were invalid as they impermissibly delegated to the Council the ability to increase the limits the subject of those conditions.

The court set aside the Panel’s decision and remitted the matter to the Panel for reconsideration in accordance with the judgment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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] and6 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 The Land is and has for several years been owned by Barossa Central. 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. The Land historically comprised a vineyard with a cottage homestead. The vines were removed some years ago but the cottage remains. John Outhred (the interested party) is an urban and regional planner who was engaged as a planner by Barossa Central. 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. 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”. 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. 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. The Plans also show a pedestrian/bicycle path proceeding broadly around the perimeter of the Proposed Development. 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.

Evidence

Evidence Before The Court

On 16 December 2021 the applicants instituted this proceeding seeking judicial review of the Panel’s decision.Evidence 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. 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. 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. I received various documents, primarily comprising exhibits to Mr Geber’s affidavits. 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. 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. I received a statement of agreed facts and a joint memorandum.The legislative regimeThe Act 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”. 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. 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.

Decision

Reasons for decision

The Agenda Report contained the following under the heading “CONCLUSION”:Not seriously at varianceThe proposed development is not seriously at variance with the Planning & Design Code.Planning consent should be grantedWhen 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. 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 MattersIn 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] 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): 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. 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). 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.

Ratio Decidendi

Legal Principle Established

The third ground of judicial review is established in respect of the first and second set of considerations.Take into account irrelevant considerations It is not strictly necessary to decide the applicants’ contentions that the Panel took into account irrelevant considerations. I address these contentions briefly. 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. 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. 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. The fourth ground of judicial review is not established.Planning merits: legally unreasonable 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. 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 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. 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.