Gibbs v City of Charles Sturt
[2010] SASC 26
•16 February 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
GIBBS v CITY OF CHARLES STURT
[2010] SASC 26
Judgment of The Honourable Justice Bleby
16 February 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - TRAFFIC AND PARKING
Appeal from the Environment Resources and Development Court - development application to change use of building on subject land from a dwelling to an office - whether failure to assess development application against provisions of the Development Plan - whether misapplication of Development Plan principles - need to consider development as a whole in deciding compliance with Development Plan - failure to apply qualititative assessment of application against Development Plan - failure to assess qualitatively issues of car parking and vehicle access - appeal allowed.
Environment Resources and Development Court Act 1993 (SA) s 30(2); Development Act 1993 (SA) s 33, s 35(2), s 88(2), referred to.
Telstra Corporation Ltd v Corporation of the City of Micham (2001) 79 SASR 509; AG Building and Developments Pty Ltd v City of Holdfast Bay and Tanti [2009] SASC 11; City of Mitcham v Terra Equities Pty Ltd (2007) 249 LSJS 416, applied.
Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93; City of Mitcham v Freckman (1999) 74 SASR 56, considered.
GIBBS v CITY OF CHARLES STURT
[2010] SASC 26Land and Valuation Division
BLEBY J.
Background
This is an appeal from the decision of a Commissioner of the Environment Resources and Development Court (“the Environment Court”). The appeal concerns an application by the appellant for Development Approval relating to an irregularly shaped allotment located on the north-eastern corner of the intersection of Grange Road and Military Road, Grange. The land has a frontage to Military Road on its western boundary of 24 metres and a frontage to Grange Road on its south of 8 metres. The eastern boundary is approximately 30 metres long, and the northern boundary a little less than 20 metres. There is a corner cut off of the land at the intersection of Military and Grange Roads.
The land presently contains an early 20th century detached dwelling with a floor area of 154 square metres. It faces Grange Road with a southern verandah of approximately 33 square metres. Vehicle access to the premises is from Military Road by means of a 6 metre crossover close to the northern boundary of the land. That gives access to a double carport with a roller door on the western boundary.
The premises have hitherto been used as a dwelling. The application sought approval to the change of use of the building on the land from a dwelling to an office. The evidence before the Commissioner was that there would normally be three people using the office at any one time, with a potential maximum of five, but with few client visits. It was proposed that there should be three on-site car parking spaces provided – one on the northern side and at the rear of the building (car park 1) and two along the western side of the building in a tandem formation (car parks 2 and 3), car park 3 being to the south of car park 2. The evidence suggests, and the presence of the roller door at the entrance to the carport would tend to confirm, that on-site parking would not be available or convenient for the relatively few clients who would attend the premises. The only building alteration was a proposal to remove a small portion of the north-western corner of the building to facilitate vehicle manoeuvring, thus reducing the floor area to approximately 150 square metres.
The land is located within a small Local Shopping Zone extending on both sides of Grange Road in an easterly direction from Military Road. The Zone includes local shops, offices and consulting rooms. On the south-eastern corner of the intersection of Military Road and Grange Road, directly opposite the subject land, there is a small shopping centre which includes 21 car parking spaces.
Grange Road and Military Road are both two lane roads and are described in the Council’s Development Plan as “secondary arterial roads”. Unrestricted parking is provided on both sides of Military Road proximate to the subject land and in other nearby streets. There is a roundabout at the intersection of the two roads some 20 metres from the access point to the subject land. Adjacent to the northern boundary of the subject land the width of Military Road is approximately 9 metres, but it widens to 13 metres on the northern side of the intersection.
The Council refused to grant Development Approval on two grounds. The first was that pursuant to s 35(2) of the Development Act 1993 (SA) the proposal was considered to be seriously at variance with the provisions of the Development Plan. The second was that pursuant to s 33 of the Development Act consent would be refused because “[t]he proposed development conflicts with Principle of Development Control 81(h) of the Council Wide provisions of the Charles Sturt (City) Development Plan in that insufficient car parking spaces are to be provided for the proposed office use”.
Neither in the Environment Court nor in this Court did the Council seek to justify the first ground mentioned above.
The appellant appealed to the Environment Court which dismissed the appeal. He now appeals to this Court on a number of grounds, only two of which are pressed, and both of which would appear to be on questions of law, for which there is an appeal as of right.[1]
[1] Environment Resources and Development Court Act 1993 (SA) s 30(2).
The relevant Development Plan provisions
The Development Plan states two objectives for a Local Shopping Zone. They are:
Objective 1: A Zone accommodating a limited range of goods to serve the day to day needs of the local community and residential development.
Objective 2: Centres characterised by traditional corner stores or small groups of shops containing a mini-mart, super delicatessen, consulting rooms, local office or takeaway food premises and within easy walking distance from residences or business in commercial or industrial areas or serving passing trade on arterial roads and with a gross leasable floor area not exceeding 450 square metres.
So far as is relevant to the resolution of this appeal the Principles of Development Control applicable to a Local Shopping Zone are:
Use of Land
2Development should consist of a small group of shops containing a convenient shop such as a delicatessen or mini-mart catering for the day to day needs of the local community and other small scale retail, office and community facilities serving the local community.
Access
14Development should not be of a high traffic generating nature and should not add significantly to traffic volumes using residential streets outside the zone.
15Car parking areas should be shared within Local Shopping Zones to serve all development within the zone.
There are a number of Council Wide Objectives and Principles of Development Control which are also relevant. Under the heading Transportation (Movement of People and Goods) there are included the following Objectives and Principles:
Objective 31: A form of development adjoining primary and secondary arterial roads which will:
(a) ensure traffic can move efficiently and safely;
(b) discourage commercial ribbon development;
(c)prevent large traffic-generating uses outside designated shopping/centre zones;
(d) provide for adequate off-street car parking; and
(e) provide limited and safe points of access and egress.
PRINCIPLES OF DEVELOPMENT CONTROL
Access
69 Development and associated points of access and egress should:
(a) be located and designed to ensure the safety of the public and the free flow of traffic in the locality;
(b) minimise traffic hazards and queuing on public roads;
(c) minimise intrusion into adjacent residential or similar environmentally sensitive zones;
(d) include appropriate provision on the site to enable the parking, loading, unloading, turning and fuelling of vehicles.
70Vehicular access onto arterial roads … should satisfy the following:
(a) be designed and located to enable all vehicles to enter and exit the site in a forward direction;
(b) the number, location and design of the access points should be such as to minimise traffic hazards, queuing on arterial roads, right turn movements and interference with the function of intersections, junctions and traffic control devices; and
(c) Any gate across a vehicular way should be set back at least 5.5 metres from the alignment of an arterial road and should open away from the arterial road. Fences associated with the development and adjacent to the arterial road should be of a height and design such that a clear view of the arterial road is available to any driver leaving the site.
71Development should not generate vehicular traffic onto or across an arterial road, … in such a way as to materially impair the movement of traffic on that road or to cause safety hazards.
Carparking
80Development should provide on-site parking to accommodate all vehicles which are expected to visit the site.
81Carparking should be provided at the following rates whether forming part or all of the development on a site:
…
(h) office: one carpark space for every 25 square metres total floor area;
…
These requirements may, with the consent of the planning authority, be reduced where:
(a) where there is readily accessible and frequent public transport in the locality;
…
(f) it can be demonstrated that users of the development have safe, close and convenient access to a network of frequent and regular public transport which is available at the times of operation of the development.
Several observations should be made about those Objectives and Principles. In the first place use of the subject land as an office is a use encouraged by the Zone Objectives and the Principles of Development Control for the Local Shopping Zone.
The second observation is that none of the relevant Principles are cast in mandatory terms but rather are cast in terms of desirable goals.
The third observation I would make is that the Council Wide Principles are just that. They are intended to apply across the whole of the area covered by the Development Plan. Accordingly, Principles of Development Control relating to access, for example, will need to be read as applying to access to a variety of different kinds of development, such as to major shopping centre car parks, service stations, small shopping centres and individual allotments used for a variety of purposes and having widely different effects on traffic generation through those access points. Likewise, car parking requirements of Principle 81 applicable to offices on their face apply to both a multi-storey office block and to a small converted house such as in this development. The stringency of their application may well depend on the nature of the development. Furthermore, the Principles cannot be applied literally to every development, otherwise Principle 80, for example, would require the provision of on-site parking for a detached residence not only for the vehicle or vehicles of the occupier of the residence but for all vehicles driven by visitors to the residence. I cannot accept that this Development Plan seeks to ban all kerb-side parking.
The appeal to the Environment Court and the decision of the Commissioner
The appeal to the Environment Court was against the “planning decision” of the Council. In other words, the appeal was against the refusal of the Council to grant Development Approval. The stated reasons for the appeal concentrated, not surprisingly, on the reasons why approval should be granted notwithstanding that the proposed development did not comply with Principle of Development Control 81(h). As was acknowledged by the Commissioner and all parties to the appeal, a literal application of Principle 81(h) required that this development provide six on-site car parking spaces.
The Commissioner concluded that the proposed development did not merit consent and that the appeal should be dismissed. The reasons were that the number of on-site car parks was inadequate, that the requirements of Principle 81(h) could not be reduced by the application of para (f) (second occurring) of Principle 81 and that the nature of the access arrangements had the potential to cause delays to north bound traffic on Military Road and to create unsafe conditions for vehicles leaving the roundabout travelling north along Military Road. The question of access does not seem to have been an issue of concern by the Council in its consideration of the application. It will be necessary to return to a more detailed consideration of the Commissioner’s reasons in due course.
The grounds of appeal
The appellant relies on two grounds of appeal in this Court. The first is that the Commissioner erred in discharging the task required by s 33(1)(a) of the Development Act, namely to assess the development against the provisions of the Development Plan, by failing to weigh the “pros and cons” of the proposed development against the relevant Objectives and Principles of the Development Plan, and thereby constructively failed to undertake the required planning assessment.
The second ground is that the Commissioner erred in his interpretation of the car parking discount provision contained in Principle 81(a) and (f) of the Development Plan.
Consideration – Ground 1
In essence, the appellant argued that the Commissioner effectively confined his reasons to the application of the parking and access requirements of the Development Plan without balancing them against the other relevant provisions of the Development Plan and against the features of the land and the building erected on it in which the proposed use was to take place. There was an unnecessarily literal application of Principles 69-71 and 80-81 without any other proper planning analysis.
At the outset it is appropriate to repeat the following general observations agreed to by a five member bench of this Court in Telstra Corporation Ltd v Corporation of the City of Mitcham:[2]
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann's College v Corporation of City of Adelaide [1999] SASC 479. 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: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. As the Court said in District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at 449, 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.
[2] [2001] SASC 166, [25], (2001) 79 SASR 509, 515-516.
In City of Mitcham v Freckman[3] Debelle J, speaking on behalf of the Full Court,[4] described the necessary approach of a planning authority to the task under s 33(1)(a) of the Development Act. He said:[5]
Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan. That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provision in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely that it might merit planning approval. In addition, as was noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may be occasions when the planning authority must resolve inconsistencies within the Development Plan. Those inconsistencies will often be resolved by considering the desired character and amenity of the zone.
Once the relevant provisions of the Plan have been identified and the purpose and intent and desired character of the zone have been ascertained, the planning authority must proceed to assess the proposal by reference to those factors. The Development Act, like its predecessors the Planning & Development Act 1966-1967 and the Planning Act 1982, is a practical code calling for practical application. I respectfully adopt the remarks of Jacobs J in District Council of Munno Para v Remove-All Rubbish Co Pty Ltd (1985) 41 SASR 188 at 201:
"...where the Development Plan neither permits nor prohibits a particular development, the task of the planning authority is to weigh up the "pros" and "cons" with due regard to the guidance afforded by such of the general planning precepts and policies in the Plan as may be relevant. But to suppose that the "pros" and "cons" are in watertight compartments, or that they do not overlap, is to ignore the complexity of the subject matter and the competing elements which have to be weighed in deciding where the planning balance lies."
[3] [1999] SASC 234, (1999) 74 SASR 56.
[4] Doyle CJ, Duggan and Debelle JJ.
[5] [1999] SASC 234, [18]-[19], (1999) 74 SASR 56, 62-63.
In AG Building and Developments Pty Ltd v City of Holdfast Bay and Tanti[6] I stressed the need for a qualitative assessment of supposed shortcomings in a development proposal against the more general requirements of the relevant Objectives and Principles of the Development Plan, rather than a purely quantitative approach as to whether or not a proposal complies with a particular guideline.[7] I pointed out that there was a need to assess the weight to be given to particular features of non-compliance with a Development Plan in the context of the development as a whole and the overall requirements of the Plan.[8] In that case I concluded:
What was needed, and what was lacking, was some assessment of the relevance of any particular supposed departure by reference to other relevant Principles, and an assessment of the effect of the departure on other considerations relevant to that development and its particular location. This, of necessity, required a qualitative assessment which is lacking in the Commissioner’s reasons. It required an assessment not of particular issues in watertight compartments, but rather as part of a single complex planning problem – whether the proposal as a whole should be approved.[9]
[6] [2009] SASC 11.
[7] Ibid [79].
[8] Ibid [80]. See also City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244, [13], (2007) 249 LSJS 416, 420.
[9] See Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93, 102, Jacobs J.
In my opinion the Commissioner was led into a similar error in considering this appeal. He concentrated on resolving differences of opinion between two experts who gave evidence concerning parking and access matters, formed a quantitative conclusion on those matters, applied the Development Plan as if it contained statutory requirements for parking and access, and failed to balance the supposed shortcomings against significant aspects of the development itself in the context of those and other provisions the Development Plan. The Commissioner’s approach was to find that there was non-compliance with Principle 81(h) and then only to examine whether that requirement could be discounted by virtue of para 81(f) (second occurring) and access to public transport. I will need to return to the latter question with the second ground relied on. There was no other qualitative assessment of the development or of the requirements of the Development Plan.
The question to be addressed was whether, notwithstanding non-compliance with the Principles of the Plan concerning car parking and access, the proposal as a whole should be approved. There was a failure to undertake a proper planning assessment of the proposal as a whole.
It was a relevant consideration, for example, that although residential development is one of the objectives of the Local Shopping Zone, if this development application were approved, the land would be unlikely to revert to residential use. That is because it is a corner site at the intersection of two secondary arterial roads and because this particular Local Shopping Zone appears to be almost fully developed with non-residential buildings and uses. The site is therefore ripe for further development consistent with the Objectives of the Zone, but not in the form applicable to a detached dwelling.
It was also relevant that the change of use related to adaptation of an existing building constructed for use as a residence. It was not a purpose built office. As a result, its use as office premises and the deployment of the available spaces for office purposes, both inside and outside the building, is rather inefficient. The building has five main rooms. Four of them are intended to be deployed as offices. The largest room in the house, formerly the kitchen, is intended to be used for staff amenities. In addition, there is a separate toilet, bathroom and utilities room and one small interior meeting room which appears, on the plan, to have been converted from a hallway. The four offices and the meeting room open off an L-shaped passage way. The material before the Commissioner indicated that the four offices represented only 54% of the total building area. Thus, 46% of the internal area was devoted to ancillary space for internal access, toilet and kitchen facilities, which in a conventional office would occupy approximately 20% of the total floor area. The 150 square metres of internal space in this building therefore corresponds more closely with an area of a little over 100 square metres of conventional office space. In addition, as pointed out above, Principle 81 of the Development Plan states a desirable objective for a range of office space, including modern multi-storey open space plans which can be used much more efficiently in the deployment of staff than can an existing residential building with fixed partitions.
Because of the location and nature of the building on the land the external spaces are also unable to be efficiently used for office or commercial purposes. These internal and external inefficiencies also suggest the likelihood of redevelopment of the site in the medium term.
It must also be borne in mind that the car parking requirements specified in Principle 80 must be adapted to accommodate a range of different developments. There is a significant difference between, on the one hand, a development having a capacity to accommodate large numbers of persons at any one time, such as a shopping centre, hotel or entertainment venue, where it is clear that adequate on-site parking to accommodate such numbers will generally be required, and, on the other hand, a development where, as in this case, the usual number of staff will consist of three persons with a maximum of five at any one time, with, as the evidence showed, rare client meetings on site. It is unhelpful to say, as the Commissioner observed, that there is a shortfall in on-site parking requirements by 50%. While that would be highly relevant to a shopping centre development, it is barely significant for an office of a possible maximum of five staff. It would be just as helpful to observe, in respect of a shopping centre carpark that requires 1000 car parks, that the proposal falls short by three car parks.
Other relevant circumstances were that there is unrestricted kerb-side parking available on both sides of Military Road and other streets in close proximity to the site, and that there was no evidence that any expected off-site parking would create any identifiable traffic problems or have any identifiable adverse effect on the amenity of the locality. It was also relevant that the advice from the Department of Transport, Energy and Infrastructure was that the Department “generally concurs that the development would not result in excessive traffic generation and would be adequately served by adjacent on-street parking for occasional visitors”.
These were all matters which were relevant to a consideration of the appeal but which were not addressed by the Commissioner.
In relation to car parking issues, and assuming a generally favourable assessment against other aspects of the Development Plan, there will always be a question which must be asked as to what demand the proposed use of the land will create for car parking and for what periods of time (i.e. overnight, at what periods during the day, whether for permanent occupiers, staff car parking, customers or visitors). Provisions such as Principle 81 provide a useful guide based traffic studies for various types of typical land uses. But as in this case, not all uses of the same class are typical.
The next question is whether the demand for car parking can be accommodated by the proposed development. If it cannot, the question must then be addressed as to whether the unsatisfied demand can be satisfied by other means consistent with the provisions of the Development Plan. That will include a consideration of the qualifying matters in Principle 81, the subject of the second ground of appeal discussed below. The answers will obviously be different in every case. There can be no hard and fast rule of thumb which says that because a particular development does not comply with Principle 81, it must therefore be refused.
Similar considerations apply to questions of access and the application of such provisions as Objective 31 and Principles 69-71.
I have already described the location of the three proposed car parks. None of them will use the existing carport. Access to each of the three car parks is proposed to be through the carport by the operation of the existing roller door. From the position and nature of the carport attached to the existing residence, it is clear that, when used as a residence, egress of all vehicles from the site was by reversing through the carport opening into Military Road. Under the proposed use, if the carport were used for parking, more vehicles could be accommodated on the site, but in all probability they would all have to reverse onto Military Road in order to leave the site. The disposition of the car parks proposed by the appellant enables cars parked in car parks 2 and 3 to turn on the site and leave the site travelling forwards into Military Road. The car in car park 1 could not do that if car park 2 was occupied, and in all probability it will need to reverse onto Military Road. Thus, the proposal included a likely reduction in the number of reversing movements onto Military Road and a certain increase in the proportion of forward movements to reversing movements.
The Commissioner identified two concerns expressed by the traffic engineer called by the Council. One of the concerns related to the need for the car in car park 1 to reverse onto Military Road, being not in accordance with Principle 70(a). However, there was evidence that the Department of Transport, Energy and Infrastructure raised no objection to that proposal. In a letter to the appellant’s agent dated 16 April 2009 the Department said:
…
It is understood that the proposed development is unlikely to result in a marked increase in traffic generation at this location due to the nature of the development and its proposed occupants.
Having noted the proposed car parking arrangements and the need for the occupant of car park 1 to reverse onto Military Road the Department said:
As the subject arrangements would not result in an exacerbation of the existing arrangement, this Department does not object to the proposed parking measures.
The Commissioner did not express any view adverse to the appellant concerning the requirement for the occupant of car park 1 to reverse onto Military Road, nor did he rely on that as a reason for dismissing the appeal. He expressed no view on the matter. I therefore assume that he accepted the views of the Department of Transport, Energy and Infrastructure on that point.
The other issue concerning access arose from the fact that there was no provision for a two vehicle queuing area on the subject land. The Commissioner described the problem in the following terms:
This meant that, if a vehicle was exiting the car park, it would not be possible for another driver to turn into the car park from Military Road, particularly if he or she was seeking to park in Car Parks 2 or 3, until the exiting vehicle had moved. This could result in potential delay to through traffic on Military Road. If the vehicle seeking to enter the land was turning right into the car park, it could block the path of through traffic leaving the roundabout at the intersection of Grange and Military Roads and this would be a significant safety concern. Northbound vehicles would need to wait while a car completed a right turn on to the subject land. If a bus was forced to wait it could extend back some 15 metres towards the roundabout and into the roundabout’s circulating carriageway.
It was for this reason and for this reason alone that the Commissioner considered that the access provisions were inadequate and did not comply with the requirements of the Development Plan. He said:
With regard to the provision of safe access to the subject land, my opinion is that the nature of access arrangements to the subject land has the potential, on Mr Siow’s evidence, which I accept, to cause delays to northbound traffic and to create unsafe conditions for vehicles leaving the roundabout to travel north along Military Road. While these may be existing conditions with the current residential use of the land, they should not be endorsed and perpetuated by granting development approval to an office use which has the potential to lead to an increase in vehicle movements to and from the subject land.
The Commissioner’s decision was therefore based on the possibility of a car travelling north along Military Road wishing to turn into the premises at the same time as another vehicle was leaving the premises. There was no assessment or weighing by the Commissioner of the likelihood of that event occurring. Given that car parking on the site was likely to be used only by staff working in the premises who would be most likely to arrive and depart at similar times of the day, the likelihood of the problem occurring would indeed be remote, and should have been afforded little or no weight. Once again, it would be different if this access point were providing access to a service station with many vehicles entering and leaving the premises during the course of a day, but there was no qualitative assessment by the Commissioner of the likelihood of that problem occurring.
In my opinion the approach of the Commissioner in concentrating solely on questions of compliance with the literal provisions of the Development Plan relating to parking and access was flawed. It was a quantitative approach with no attempt to assess and weigh the supposed defects against the true nature of the proposal and other provisions of the Development Plan which clearly favoured a development of this nature.
The respondent sought to rely on the provision of s 88(2) of the Development Act. That subsection relevantly provides:
(2)The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:
(a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged;
(b) if—
(i)a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or
(ii)a third party is appealing against a decision to grant a development authorisation,
the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit);
(c) …
The respondent argued that it was appropriate for the Commissioner, in accordance with the requirements of para (a), to deal with and resolve only the issues in dispute, namely the issues of the adequacy of parking and of vehicle access, and that accordingly, the Commissioner did not err in concentrating solely on those issues.
I do not accept the argument. In the first place, para (a) is expressed to be subject to para (b) which deals specifically with appeals against a refusal to grant a development authorisation. The word “may” in para (b) is qualified by the phrase “(if the Court thinks fit)”. This is therefore not a paragraph in which the word “may” is to be construed as “must”. It clearly confers a discretion on the Court to proceed to consider the matter de novo.
There may be some appeals against a refusal to grant a development authorisation where such issues can be isolated and it is clear that the answer turns solely on those issues. However, in my opinion they will be relatively rare cases. The issue in this case was not just a question of parking and access. The issue before the Environment Court was whether the proposed development should be approved. That was made clear by the Notice of Appeal. That necessarily involved the proper application by the Environment Court of the provisions of s 33(1)(a) of the Development Act and the mandate to assess the development against the provisions of the appropriate Development Plan and not just against some of those provisions, applied as if they were a statute.
Consideration – Ground 2
Having concluded that the proposal did not comply with Principle 81(h), the Commissioner then addressed his mind to the qualification contained in Principle 81(f) (second occurring). For some reason he did not address the qualification contained in para (a) (second occurring). He found that the land is serviced by two metropolitan bus routes, between them providing five services. On one of the routes two services between them provided at least a half hour service in each direction during the day, with each service providing a half hour service during peak periods. On the other route, the three services provided at least a half hour service in each direction most of the day, with 15 minute intervals during peak periods.
Of the application of para (f) to the requirements of Principle 81(h) the Commissioner said:
Discounting would only be appropriate, in my view, in proximity to a “major public transport node or interchange” or to those areas of high public transport frequency identified as “Go Zones”.
The phrase adopted by the Commissioner, “major public transport node or interchange” was taken from a Planning Bulletin entitled “Parking Provisions for Selected Land Uses (Suburban Metropolitan Adelaide)” produced by Planning SA in 2001. The document gave one example and one only of a situation where it might be appropriate to establish maximum car parking requirements which are below the anticipated parking demand. It was quite inappropriate, however, for the Commissioner to adopt that as being the only circumstance where it would be appropriate to apply any discount to the requirements of Principle 81. That requirement does not appear in the Development Plan, and the Commissioner erred in superimposing it on para (f).
I have already noted that the Commissioner relied only on para (f). He did not appear to consider para (a). They are alternatives. I would have thought that at premises served by five services on two separate routes with the frequency that the Commissioner found might well constitute “readily accessible and frequent public transport in the locality”. If that were the view of the Environment Court, it is another matter to be weighed when considering the adequacy of the on-site parking provision.
It follows that by failing to refer to para (a) and by adding an unjustified qualification to the operation of para (f) the Commissioner erred in considering whether the parking requirements of Principle 81 should be discounted on account of the existence of public transport services.
Conclusion
It follows that the appeal must be allowed, as the assessment by the Environment Court required by s 33(1)(a) of the Development Act miscarried. It is not the function of this Court to substitute its own view on the merits of a development proposal when properly assessed against the provisions of the Development Plan. Accordingly, the matter must be remitted to the Environment Court for rehearing in accordance with the requirements of the Development Act.
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