Independent Holdings Limited, Lam Soon (Australia) Pty Ltd, Bactaline Pty Ltd, Yarla Pty Ltd, a and E Ruggiero Nominees Pty Ltd, Auri Pty Ltd, Zencor Pty Ltd, Richard John Richards and Susan Margaret Clearihan v...
[1994] SASC 4566
•26 May 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J
CWDS
Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - rules of natural justice and breach thereof - evidence.
Evidence - burden of proof, presumptions, and weight and sufficiency of evidence - presumptions of regularity.
Building control and town planning - town planning and subdivision of land
Application for judicial review to quash decisions of defendants granting an application for planning approval under the City of Adelaide DevelopmentControl Act, 1976 made by the intervener for a retailing, office and car park development in North Adelaide - second defendant Minister determined the State Government had a "substantial interest" in the result of the development application and elected, pursuant to s19(2) of the Act, to refer the application from the Adelaide City Council to the first defendant Commission - such an interest arising not only where the result would affect a government interest in proximate land or some undertaking or development in which the Government is beneficially interested, but also from economic, social or political implications of the result - aside from the presumption of regularity, evidence did not indicate irregularity in Minister's determination, but in fact warranted it - Commission not in error in not treating a proposed multi-level car park as a prohibited use of the site - car park not prohibited, it not amounting to a public parking station or open lot parking, but permitted on merit, because it constituted ancillary parking - decision of Commission not vitiated by actions and advice of its executive officer - actions of executive officer within the authority delegated to her by the Commission - plaintiffs unable to establish that Commission acted on erroneous advice - decisions of defendants did not deny plaintiffs natural justice plaintiffs unable to demonstrate that a legitimate expectation of notice of amended application or further hearing had been created - plaintiffs unable to justify assertion that Minister's decision invalid for failing independently and properly to exercise the powers granted to him by the Act - amendments made to the initial application over time permitted by the Act and the regulations under it and consequently did not vitiate the defendants' decisions - conditions attached to Commission's approval not so open ended as to vitiate it.
City of Adelaide Development Control Act, 1976 ss 19( 2) (4) , 20, 23, 24(4) , (5) , (6) and (7), 25(1) , 26a and 29(3); City of Adelaide Development Control Regulations Regulation 6 and Statutes Repeal and Amendment (Development) Act, 1993. Colliers Properties (No 1) Pty Ltd and Anor v Corporation of the City of Adelaide and Anor (1988) 65 LGRA 397; Attorney-General for the Northern Territory v Minister for Aboriginal Affairs and Ors (1986) 67 ALR 282; Minister for Natural Resources v New South Wales Aboriginal Land Council and Anor (1987) 9 NSWLR 154; Williams v Mccarthy
(1979) 21 SASR 529; Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157; Lizzio and Anor v The Council of the Municipality of Ryde (1983) 155 CLR 211; Davenport v Waverley Municipal Council and Ors (1981) 46 LGRA 97; Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190; Kentucky Fried Chicken Pty Ltd v Gantidis and Anor (1979) 140 CLR
675 and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 64 ALJR
357, applied. The Corporation of the City of Marion v Lady Becker and Ors
(1973) 6 SASR 13 and The Queen v Corporation of the City of Salisbury; Ex parte Burns Philp Trustee Co Ltd (1906) 42 SASR 557, distinguished.
HRNG ADELAIDE, 4-6 May 1994 #DATE 26:5:1994
Counsel for plaintiffs: Mr J R Mansfield QC
with Mr M Beamond
Solicitors for plaintiffs: Mellor Olsson
Counsel for defendants: Mr A R F Hall
Solicitors for defendants: Crown Solicitor
Counsel for intervener Archer: Mr B R Hayes QC
with Mr J McElhinney
Solicitor for intervener: Ward and Partners
ORDER
Application refused.
JUDGE1 OLSSON J This is an application for judicial review prosecuted, in concert, by a plaintiff representative of a substantial number of North Adelaide residents, another personal resident and various corporate bodies conducting a variety of business undertakings in or relatively near O'Connell Street, North Adelaide. The application is directed to the City of Adelaide Planning Commission ("the Commission") and The Minister of Housing, Urban Development and Local Government Relations ("the Minister"). It seeks orders in the nature of certiorari to remove certain decisions made by the defendants into this court to be quashed. It also asks for relief declaring various actions of the Minister and the Commission invalid, void, and of no effect.
2. It should be noted that the City of Adelaide Development Control Act, 1976 ("the Act"), under the aegis of which the events the subject of these proceedings went forward, has now been repealed. That repeal brought about the demise of the Commission. However, by virtue of the Statutes Repeal and Amendment (Development) Act, 1993, any rights acquired pursuant to the Act prior to its repeal were preserved; and a transitional mechanism was put in place to enable pending or current matters under the Act to be carried through to completion. The factual background It is fair to say that the primary facts evidenced by the vast masses of affidavit and other documentary material placed before me are not in issue. There are, however, some matters of debate as to what inferences naturally arise in relation to certain specific situations. These will emerge in due course, as I come to them. What follows is my attempt to distil, out of the plethora of documents tendered, what are the key narrative facts and circumstances, in light of which this application falls to be decided. I have been aided in that endeavour by an outline chronology submitted by Mr Mansfield QC, of senior counsel for the plaintiffs.
3. On 4 March 1993 a company known as Archer Pty Ltd ("Archer") (which was granted leave to intervene and was represented by Mr Hayes QC of senior counsel) lodged with the Corporation of the City of Adelaide ("the Council") an application seeking its approval for a proposed major development fronting on to O'Connell Street, North Adelaide and extending back some distance from that frontage to the east. A large segment of the area proposed to be developed was the familiar location of the former Le Cornu Furniture Store, situated on the eastern side of O'Connell Street, between Archer and Tynte Streets. For the sake of convenience I shall refer globally to the overall area proposed to be developed by the non definitive label "the development site", bearing in mind that the detailed plan of development was amended over time.
4. The application was accompanied by relevant documentation explaining the proposal in some detail, which was compendiously described as being a "new retail, commercial and car park development". In fact the proposal envisaged the creation of a large supermarket, numerous speciality shops in a mall type complex, a series of offices and also associated car parking facilities for a large number of vehicles. The project envisaged the change by the Council of the status of a private road to a public street, certain street closures and the construction, on the eastern portion of the development site, of a large, three level car park, one level of which was to be partially underground.
5. Before proceeding further it is convenient, at this juncture, to pause and reflect upon the scheme of the Act as it stood at the times relevant to these proceedings.
6. In general terms the Act constituted a discrete mechanism for the imposition of development control within the City of Adelaide, in accordance with detailed "Planning Principles" ("the Principles") set out in a substantial document dated 21 October 1976 identified in the Act. Those Principles were capable of being varied from time to time in the manner prescribed in the statute.
7. For present purposes it should be noted that, within the Principles, what may loosely be described as the old Le Cornu site fell within the R6 O'Connell Street Precinct, whilst the remainder of the development site constituted portion of the R12 Eastern Upper North Adelaide Precinct. Pursuant to the Principles each of those precincts attracted quite different planning considerations (particularly as to any permissible use). In essence the R6 precinct envisaged commercial activity appropriate to a neighbourhood centre, whilst R12 was essentially to be preserved as a residential area having quite specific characteristics. It followed that, in general, permitted, prohibited and discretionary (or so called "on merit") type uses varied significantly in relation to each of the two precincts. That situation was, nevertheless, ameliorated to some extent by general principle P11, which stipulated that, in situations in which two precincts with dissimilar characters abutted, flexibility was to be retained so as to permit special consideration to be given to developments within a reasonable distance of the boundaries of each precinct.
8. By virtue of section 23 of the Act, the Council was the primary planning approval authority within the City of Adelaide. This was, however, subject to certain qualifications, namely that:-
- in deciding to grant any application, the Council was
bound to have regard to the Principles and any regulations
under the Act (s24(6)).
- any application which would directly affect an item of
State heritage had to be referred to the responsible
Minister and could not be approved by the Council without
the concurrence of The City of Adelaide Planning Commission
- a separate body independent of the Council erected by s11
of the Act (see s24(4) and (5)).
- a development involving a use prohibited by the Principles
could only be approved with the consent of the Commission
(s25(1)).
9. It is to be noted that the foregoing provisions were subject to the overriding prescriptions contained in sections 19 and 20 of the Act, which read as follows:-
"Information in relation to Development applications 19.
(1) The Council must if requested by the Commission furnish
to the Commission such information, as to the substance of
applications received by the Council under Part IV, as is
specified in the request.
(2) Where the Minister is satisfied that the Government of
the State has a substantial interest in the result of 5 an
application to the Council under Part IV, the Minister may
request (by writing setting out the grounds upon which the
request is based) the Council to refer the application to
the Commission for determination.
(3) Upon receipt of a request referred to in subsection (2)
the Council must refer that application to the Commission
together with such advice or recommendation as it thinks fit
and -
(a) the Commission must deal with the application forthwith;
and
(b) the Council may take no further action on the
application.
(4) Part IV applies, with the necessary modifications, to
and in relation to any application to the Commission as if -
(a) references in that Part to the Council were references
to the Commission;
and
(b) references in that Part to the Commission were
references to the Minister.
Application by Council for approval. 20
(1) Where the Council proposes to undertake a Development
which, if it were undertaken by a person other than the
Council, would require the approval of the Council under
Part IV, that Part applies with the necessary modifications
to and in relation to that Development as if -
(a) references in that Part to the Council were references
to the Commission;
and
(b) references in that Part to the Commission were
references to the Minister.
(2) The Commission must forthwith deal with the application
of the Council made pursuant to subsection (1)."
10. The potential application of both of those sections to the development application lodged by Archer is in issue in these proceedings.
11. I will not, at this stage, tarry further with the provisions of the Act, other than to note that the Act was silent as to the procedures to be adopted by the Council, the Commission and the Minister in discharging their respective functions in relation to an application for planning approval. There was no statutory obligation to give notice of any application to specific parties actually or potentially affected by it, nor was any particular status conferred on any party other than an applicant, save to the extent that certain powers and rights were specifically vested in the Commission or the Minister. As was pointed out in Colliers Properties (No 1) Pty Ltd and Lot 27 Pty Ltd v Corporation of the City of Adelaide and Pinnacle Estates Ltd (1988) 65 LGRA 397, parties desiring to promote objections to applications had no right of audience. This was so even where, as a matter of practice, notice of a proposed development was given, either generally or specifically, to them at the instance of an approving authority. To the extent that such an authority received either written or oral submissions, it did so entirely as a matter of discretion. Furthermore, the exercise of such a discretion did not, thereafter, confer any special ongoing status or rights on a party making a submission.
12. I will return to certain other provisions of the Act, in context, in due course.
13. As a consequence of public advertising and notice of the application caused to be given by the Council to residents and business undertakings in the area, it is clear that, in early March 1993, many of those persons and undertakings became well aware of the substance of what was in contemplation.
14. It generated, in some quarters, a strong, vociferous, adverse reaction. By 23 March an unincorporated association known as the "North Adelaide Residents' Group" ("NARG") had come into existence and a public meeting of some 200 persons sponsored by it voiced vigorous opposition. It would seem that, at that time at least, their main preoccupation was in relation to the part of the project which contemplated the construction of a major car parking facility in the R12 precinct.
15. That meeting was followed by a series of interchanges between representatives of Archer, the Council and NARG in an endeavour to find some acceptable resolution of the matters in dispute. However, a resolution was not forthcoming. By 6 April 1993 the Office of Planning and Urban Development had become involved. Substantial written objections were proffered by the plaintiffs to the Council.
16. In April and May 1993, significant amendments were made by Archer to its proposal, in an endeavour to meet the objections raised. Portions of the proposed car park were deleted and the number of parking spaces reduced.
17. The documentation before me reveals that, at its meeting held on 24 May 1993, the Council had before it a comprehensive report on the application from Ms Iwanicki, its Chief Planner (Development Assessment). Inter alia, she made these points:-
- about 70 representations, plus about 118 proforma
objections, had been received concerning the original
proposal, as a consequence of which substantial revisions to
it had been made.
- legal advice (a copy of which was appended to the report)
indicated that the Council was not the appropriate planning
authority, by virtue of the provisions of section 20(1) of
the Act, principally because of the involvement of the
Council in a change of road status, road closure and
proposed permitted road encroachment. It was recorded that,
subject to a large number of specified conditions, "the
concurrence/consent of" the Commission "be sought in terms
of section 24(5) and possibly 25(1)" of the Act, to grant
approval to the application, as revised.
18. On the day of the meeting the Council received a letter from the Minister, which was expressed in these terms:-
"24-5-93
Mr. M. Llewellyn-Smith, M.A.
City Manager Corporation of the City of Adelaide
Town Hall
King William Street
ADELAIDE 5000
Dear Mr. Llewellyn-Smith,
I am aware that tonight Council will be considering a
planning application for a retail, office and associated
carparking development on the site formerly occupied by Le
Cornu's in O'Connell and Centenary Streets, North Adelaide.
I am also aware of the successive planning applications made
over this site in the last few years and the controversy
which has surrounded them. It has been variously put to me
that the current proposal:
- may require CAPC consent because of future involvement by
the Council in road closures and encroachments which will be
necessary if the development is to proceed;
- has attracted an unusually large number of public
representations;
- involves land fronting one of the major approaches to the
Central Business District and in an area of townscape
significance.
I am also conscious of the potential effect of this project
on the internal stability of the Council. The protracted
debate over the site has provoked strong reactions on all
sides which would not assist the assessment process. Having
regard to all of the above, I am of the opinion that the
proposed development is one in which the State Government
has a substantial interest and accordingly, pursuant to
Section 19(2) of the City of Adelaide Development Control
Act, I request that the Council refer the application to the
City of Adelaide Planning Commission for determination. To
the extent that any aspect of the proposal would have
required the concurrence of the Commission had Council been
the planning authority determining the application, it
should be noted that, pursuant to Section 19(4) of the Act,
I will assume the role of the Commission in determining
whether concurrence should be granted. I stress that in
proposing this course I am committed to working
co-operatively and productively with the City of Adelaide
and look forward to our continuing co-operation.
Yours sincerely,
(signed) Greg Crafter
MINISTER OF HOUSING, URBAN DEVELOPMENT AND LOCAL GOVERNMENT
RELATIONS"
19. It is quite obvious from the documentation before me that, prior to 24 May there had been a great deal of public agitation concerning the Archer application and much dissension within the Council itself, concerning the desirability of the project. I readily infer that the Minister, whose own department had become involved, was well aware of that situation.
20. Receipt of the Minister's letter led to the convening of a special meeting of the council on 31 May 1993, to which members of the Commission were invited to attend. Some of them did, in fact, attend. At that time Council entertained oral objections and submissions from a large number of persons. Council also heard responses from the City Planner and the Chief Services Engineer as to certain of the issues raised, and submissions from counsel for Archer.
21. After considerable debate lengthy resolutions were passed, requiring notification of the various bases of objection to the Commission, urging it to take certain considerations into account and recommending imposition of a large number of conditions, should the application be approved.
22. By letter dated 1 June 1993 the City Manager of the Council formally advised the Commission of the Minister's request and of the various resolutions passed by the Council at its special meeting. He indicated that all relevant documentation was being separately transmitted to the Commission. He stressed that the Council urged the Commission to hold its meeting in public "to enable interested parties to attend the meeting and hear the deliberations". The lastmentioned aspect was reinforced by a separate letter to the same effect, written by the City Planner to the Secretary of the Commission on 10 June 1993.
23. On 15 June 1993 members of the Commission attended at the development site and were given a full briefing on the proposed development. Not surprisingly, the Commission declined to conduct its deliberations in public.
24. Extracts of the minutes of discussions on that occasion read as follow:-
"Members also discussed correspondence received by the
Executive Officer from the City Manager, Adelaide City
Council, in which it was suggested that the Commission make
their first meeting on June 28 a public meeting. It was
unanimously resolved that this development application
should be assessed in the same manner as all other
Commission business; specifically at a closed, confidential
meeting of members and invitees. Commission further
resolved that the Executive Officer invite to that meeting a
representative from the Curtis Street Residents Group,
representative from the North Adelaide Society,
representative from the North Adelaide Residents Association
and a representative of the Retail Development on the
opposite side of O'Connell Street (owned by SASFIT)."
25. Invitations were extended in accordance with those minutes. The Commission duly met on 28 June to consider the Archer application. Prior to that time a formal request had been transmitted to the State Heritage Branch of the Department of Environment and Land Management for its comments on the proposal.
26. When it met on 28 June the Commission had before it detailed written submissions from the South Australian Superannuation Fund Investment Trust ("SASFIT") on behalf of relevant North Adelaide traders, NARG, the North Adelaide Society Inc and Mr Elbert Brooks, a local resident (who represented the North Adelaide Residents Association). In accordance with what I take to be its normal practice, it also had the benefit of a comprehensive written report from Ms Hele, its Secretary and Executive Officer, who is a qualified planner and whose duty it was to tender professional planning advice to it.
27. The lastmentioned report appears as exhibit HDH:16 to Ms Hele's affidavit sworn on 24 January 1994. It must be said that that document, on the face of it, was a careful, balanced resum of the relevant issues and appears to have drawn attention to all significant matters requiring consideration by the Commission.
28. Of particular interest for present purposes was her comment on one facet of the recommendations made by the Council to the Commission. She had this to say:-
"10. General Comments In Council's recommendations to the
Commission (Special Meeting, Adelaide City Council 25/5/93)
they urged the Commission to consider the following issues
when assessing the LeCornu's Redevelopment Proposal: (1) The
economic impact of the development on the existing retail
base of the precinct, the inner city and near metropolitan
retail base.
(2) The appropriateness of the development in terms of the
distribution of retailing centres in the inner metropolitan
area.
(3) The impact of the development on the major northern
traffic corridor to the city.
(4) The impact of the development on the heritage, character
and cultural significance of North Adelaide.
(5) The enhancement of the cultural tourism potential of
North Adelaide and South Australia.
(6) The policies of the Government's Metropolitan State
Planning strategy.
The Commission has no mandate to evaluate this, or any
planning application other than in terms of relevant
planning policies and principles.
Accordingly, expert opinion has not been sought on the
aforementioned issues. Indeed, it is relevant to note that
the High Court of Australia (Gantitus (sic) v Kentucky Fried
Chicken) recently ruled that commercial competition is not a
planning matter and that competition is only relevant in a
planning sense if a loss of community facilities is the
(sic) likely to result from the introduction of commercial
competition. There is no reason to believe that the
LeCornu's site development, if approved, would result in a
loss of facilities to the community. Neither is there any
reason to believe that the applicant is proposing to proceed
with the development of a retail/office complex which will
remain untenanted (the lead tenant Coles/Myer is indeed
already committed) and result in a vacant, un-utilisable
facility in North Adelaide. Whether or not the development
would impact upon 'the heritage, character and cultural
significance' of North Adelaide or on 'the enhancement of
cultural tourism' is a matter of opinion, but careful
attention to conditions - design details, materials and
finishes, landscaping and maintenance of same, screening
etc. would ensure minimal intrusion (by the development) on
the surrounding area."
29. She concluded her report in these terms:-
"11. Summary
1. Combined 'On Merit' use.
2. Generally in accordance with the Principles of
Development Control - qualitative and quantitative.
3. Sympathetic treatment of carpark/residential interface
achievable.
4. No heritage considerations.
5. Crown Law advice - indicates support for proposal.
12. Recommendation
It is recommended that the City of Adelaide Planning
Commission resolve to seek the concurrence of the Minister
to grant approval to the proposal by Archer Pty Ltd, to
construct a one and two level retail and office building
with ancillary carparking at 62-100 Centenary Street, North
Adelaide, subject to conditions."
30. According to Ms Hele's affidavit the meeting was attended by Mr P Smith, the Manager, Development Assessment Branch of the Department of Housing and Urban Development (a senior officer responsible to the Minister) who, inter alia, provided each member of the Commission with a copy of extracts of the judgment of the High Court in the Gantidis Case.
31. All members of the Commission attended the meeting of 28 June. It was assisted by Ms Hele, the City Planner and Mr Smith.
32. By invitation the following persons were also present and permitted to make representations:-
- Mr D Richards - who I take to have represented the Curtis
Street Residents Group
- Mr E Briedis - representing the North Adelaide Society
- Mr E Brooks - representing the North Adelaide Residents
Association
- Mr S Main - representing SASFIT
- Mr V Oberdan - representing Archer
33. It is to be noted that both Messrs Brooks and Main are legal practitioners, the latter in particular having expertise in planning law.
34. The Commission did not arrive at a conclusion at that meeting. It directed that discussions take place between Archer, Ms Hele and the City Planner "regarding options to improve the relationship between the car park and residential development", with particular reference to certain specific aspects.
35. It is clear that the projected discussions duly took place. In the event Archer submitted a revised proposal concerning the interface between the proposed car park building and the adjoining residential properties which fronted onto Curtis Street.
36. The Commission further met on 1 July 1993. That meeting was again attended by the former three advisers. Mr Oberdan and Archer's architect (Mr Morosini) were also present by invitation.
37. The minutes of the meeting indicate a consideration of the revised scheme. The outcome of the meeting is recorded as under:-
"Following discussion and assessment of the alternatives,
the Commission resolved that it was likely to give
favourable consideration to a revised application which:- .
redesigned the eastern interface between the car park and
adjoining residential properties on Curtis Street to achieve
an effective buffer zone that was consistent with the
landscape requirements of the plan, was safe and
'user-friendly'.
The Commission further resolved that the final design of the
interface be negotiated to the satisfaction of the Secretary
and the City Planner and in consultation with adjoining
residents."
38. This led to ongoing negotiations, as a result of which a further amended proposal, designed to meet the concerns of the Commission, was submitted to it by Archer.
39. The Commission considered that proposal at a meeting held on 9 July 1993.
40. On 6 July 1993 Ms Hele had invited all of the property owners in the immediate vicinity of the proposed car park to meet with her on the evening of 8 July to discuss the amendment proposal. A number of those persons accepted her invitation and Ms Hele produced a summary of their expressed concerns. This was duly supplied to the members of the Commission. She also produced a further comprehensive summary, by way of report, which traversed what had taken place since the first on-site meeting of the Commission on 15 June 1993.
41. She concluded her summary in this fashion:-
"AMENDMENTS TO PROPOSAL
In response to the Commission's advice of 28 June 1993, the
applicant amended the scheme as follows:
1. dropped the eastern half of the carpark by almost one
full floor (level) below ground, so significantly reducing
the visual impact of the structure - ie the finished height
above ground will conform with the roof tops of the
adjoining single storey North Adelaide cottages.
2. modelled the eastern end of the carpark in such a way as
to suggest a typical residential profile, when viewed from
the north, south and most importantly the east.
3. provided a 3 metre landscaped buffer zone between the
solid masonry eastern wall of the carpark and the rear
boundaries of the Curtis Street residences - within which
mature tree specimens will be planted.
4. further improved noise attenuation by the sloping 'roof'
treatment of the upper first level.
5. provided the option of closing off the eastern end of
the carpark - at all levels - if late night use is required
at any time.
6. reduced loss of privacy from overlooking by carpark
users into rear yards.
42. Following discussions the Commission advised the need for a more substantial buffer zone to be included on the eastern side of the development. The re-amended scheme attached to this report features:
1. a 7 metres landscaped buffer zone along the eastern
boundary of the proposed development. This space provides
opportunities for:
- significant and effective landscaping;
- development of a walkway and/or bicycle track from Tynte
Street through to Archer Street via Stephen Street;
- the introduction of lighting to encourage the development
of a 'user-friendly' space.
2. retention of a half-level of underground carparking and
a total finished height of 3.7m above ground conforming to
the roof top height of the adjoining cottages.
3. modelling of the eastern wall and bull-nose
'roof-capping' to provide a sympathetic facade to the property
owners on the eastern boundary.
4. deletes carparking spaces from the eastern wall of the
carpark at ground level.
SUMMARY
Overall Use : On-Merit/Prohibited Plot Ratio : In accordance
with Plan Height/Storeys : In accordance with Plan Parking :
Recommended 93 : Proposed 296 - Adelaide City Council policy
not applicable here Landscaping : Recommended 20% : Proposed
13.9% - 15.1% - Satisfactory Heritage : No comments
Materials : In accordance with Plan Traffic Access/Safety :
In accordance with the Plan.
COMMENT
1. The proposed development, as amended specifically
addresses all the issues raised by the Commission for
referral to the applicant. Other matters have been raised
and discussed but have not generated sufficient support
amongst the members to carry a motion.
2. There are many precedents, established by the Commission
since its inception in 1976 for approval of development
applications which comprise an in- part prohibited use and
which have a short fall in the provision of landscaped open
space. This application should not be viewed as an
exception, but perhaps, should be considered in a more
flexible manner because of its overall size.
3. There is no question that Principle 11 provides for a
reasonable graduation of uses from one Precinct to another.
The R12 Precinct is a big zone extending east to just short
of the LeFevre Terrace/Parklands frontage of North Adelaide
- approximately 300 metres. The proposed intrusion into
that precinct comprises some 58 metres. The development (as
amended) would introduce a structure which would have
minimal physical impact on those residents immediately
adjoining the site, but no impact beyond that boundary.
Impacts from increased traffic circulation could occur from
any form of medium-high density residential or retail
development on the site and in some instances be more
detrimental (where a use has a big turnover of customers
without the benefits of sufficient additional carparking).
4. The City of Adelaide Development Control Act 1976 states
that the Commission must 'have regard to - the Principles
and regulations'. The outstanding issues as outlined above
require resolution. However it must be said that the
development as proposed does not constitute a 'manifestly
unreasonable development' (Crown Law) and is certainly
defensible at law."
43. The Commission reconvened on 9 July 1993. Its ultimate decision was reflected in the following extract of the minutes:-
"Following consideration and discussion, the Commission
resolved that they decline to consent to the application as
amended. Grounds for refusal:-
- non-compliance with Principle 11 particularly the
inadequate graduation from the R6 precinct to the R12
precinct;
- non-compliance with the desired character statement for
the R12 precinct;
- non-compliance with the landscaped open space requirement
for the City of Adelaide Plan;
- exceeding of the height requirements in the R12 precinct;
- exceeding the plot ratio in the R6 precinct; . commercial
land use of the car park being contrary to the desired land
use in the R12 precinct;"
44. That decision prompted an appeal by Archer to the City of Adelaide Planning Appeals Tribunal ("the Tribunal"), pursuant to section 28 of the Act.
45. I once more digress to observe that, in the case of an appeal to the Tribunal, the Act did not confer any status on parties other than the aggrieved applicant for development approval. It imposed on the Commission (in a situation such as that now before me) an obligation to furnish the Tribunal with such information as it required (section 31). The statute did not require notice of the appeal to be given to any party and the procedure of the Tribunal was entirely a matter for its discretion. However, notice of the appeal was, in fact, transmitted both by the Tribunal and the solicitors for Archer to the Commission.
46. Of importance for present purposes was the requirement of section 29 of the Act, expressed as follows:-
"Conference of parties 29. (1) The Tribunal will not
proceed to determine an appeal referred to in section 28
unless it is satisfied that -
(a) the appellant and the Council or the Commission (as the
case may require) have conferred together at a meeting and
that after that conference the appellant is still aggrieved
by the decision of the Council or the Commission;
or (b) that no useful purpose would be served by such a
conference.
(2) A party to a conference referred to in subsection (1)
may be represented at the conference by a person of the
party's choice.
(3) For the purpose of a conference referred to in
subsection (1), the Council or the Commission may reconsider
the decision that is the subject of the appeal and may, if
it thinks fit, vary that decision or revoke it and
substitute any decision that it could have made on the
original application for approval, consent or concurrence."
47. By notice dated 22 July 1993 sent to the Commission, the Tribunal drew attention to the requirements of section 29 and invited the Commission to confer with Archer. It also requested the provision of certain information, including a formal statement of the grounds of the Commission's refusal and the reasons for it.
48. A section 29 conference was duly convened on 17 August 1993, when Messrs Oberdan and Morosini attended on behalf of Archer. At that conference Archer submitted two further, alternative options aimed at resolving the car park "interface" problem. At the conclusion of the conference the Commission decided to reconsider its earlier decision (section 29(3) of the Act).
49. Some debate ensued as to whether any further consultation ought to take place with local residents. The relevant minutes record what took place as follows:-
"The following question was asked:
1. Had there been any consultation with residents regarding
the amended schemes?
Executive Officer advised that to date no consultation had
occurred. It was agreed that consultation should occur with
the residents. It was also noted that on previous occasions
a number of residents had indicated to the Commission that
they would be very comfortable with an amended scheme that
included residential development in the buffer zone. It was
agreed that the four (4) immediate adjoining residents
located in Curtis Street, should be consulted. However, it
was noted that as a matter of principle the Adelaide City
Council did not consult with adjoining owners as part of a
compulsory conference hearing. It was suggested the only
grounds for going back to the residents should be to
establish whether there was a preference for townhouses or
landscaped open space. The Chairman expressed the opinion
that the Commission had a duty to decide whether or not a
reasonable compromise could be met or not and on the basis
of such a compromise existing, reach a decision as to which
option satisfied the requirements of the City of Adelaide
Plan and Principles of Development Control as well as the
expectations of the Commission members and residents in the
provision of a compatible development on this site. The
motion was put - The City of Adelaide Planning Commission
resolves to approve the scheme as amended by Option B and
that:
- Final design and detailing of the two (2) townhouses be
delegated to the Secretary in consultation with the four (4)
adjoining residents.
- Landscaping and security details of the open space on
Curtis Street be delegated to the Secretary in consultation
with the adjoining residents.
- The carpark operate exclusively as an ancillary use to the
shopping development and the hours of operation be
restricted to supermarket trading hours.
- The conditions as tabled apply with the addition of a
condition requiring a roller door to the loading dock and
the maximum height of the carpark above ground defined (4.8
metres).
- The Minister's concurrence be sought. Following further
discussion and clarification, the motion was put and
carried."
50. Separate minutes of the same meeting, inter alia, record that:-
"Following extended discussions, the Commission resolved to
support the amended scheme subject to the final detailed
design of the townhouses and landscaped areas being referred
to the immediately abutting residents for comment.
Commission resolved that these changes enabled the
development to conform with the City of Adelaide Plan. The
Commission delegated to the Executive Officer, City of
Adelaide Planning Commission, authority to consult the five
(5) immediately abutting residents in Curtis Street and
thereafter seek the concurrence of the Minister for Housing,
Urban Development and Local Government Relations to the
development, as given."
51. Ms Hele deposed that, following that resolution, Archer submitted detailed designs of the type envisaged, which she discussed with the City Planner and also sent to the nominated residents. Each of those residents responded in writing and, in effect, persevered with objections. It is fair comment to say that, generally speaking, their objections were pitched not so much at the revised proposal but, rather, at the concept of there being any car park in the R12 precinct at all.
52. Ms Hele deposed that, having pursued all matters identified by the Commission to her satisfaction, she then, on 17 September 1993, transmitted the finally amended proposal to the Minister for his concurrence. The letter of transmission read as under:-
"17 September, 1993
Hon Greg Crafter MP
Minister of Housing, Urban Dev and Local Government
Relations
10th Floor 55 Grenfell Street
ADELAIDE SA 5000
Dear Minister,
RE: LECORNU'S SITE REDEVELOPMENT PROPOSAL
The City of Adelaide Planning Commission at a compulsory
conference on 17 August 1993 resolved to seek the
concurrence of the Minister of Housing, Urban Development
and Local Government Relations to an amended proposal by
Archer Pty Ltd to construct a one and two level retail and
office building with ancillary carparking at 62-100
O'Connell Street, 114-120 Archer Street, 103-107 Tynte
Street, 1-39 Centenary Street, 1-17 Watson Street, 2-18
Stephens Place, North Adelaide in accordance with plans -
P5852B (93-166-SKI-8B/28) and subject to conditions and
notes attached. Since the meeting on the 17 August 1993 the
Commission has consulted adjacent residents on detail design
of the interface between the proposed carpark and the
existing housing in Curtis Street, and the comments from
those residents are attached.
The Commission has also requested and received a final set
of plans which are attached - dated and stamped by the
Commission. Your concurrence is necessary as the
development potentially affects an item on the State
Heritage Register (Heritage advice attached), and in
addition, while the Commission did not treat the application
as a prohibited use, there is argument by objectors as to
this point and accordingly your concurrence in respect to a
prohibited development is also sought to cover the event a
court could hold against the Commission on this point. Your
concurrence with the Commission's approval in accordance
with Section 24(4) (heritage) and 25(1) (prohibited
development) of the City of Adelaide Development Control Act
1976 (as amended) is therefore requested.
Yours sincerely,
(signed) Helen Hele
EXECUTIVE OFFICER CITY OF ADELAIDE PLANNING COMMISSION"
53. The documentation before me indicates that, in considering the matter the Minister desired to be assured that proper consultation had occurred with persons having a legitimate interest.
54. He was advised by Mr Smith in the following terms:-
"TO: THE MINISTER OF HOUSING, URBAN DEVELOPMENT AND LOCAL
GOVERNMENT RELATIONS FROM: MANAGER, DEVELOPMENT ASSESSMENT
BRANCH SUBJECT: LE CORNU DEVELOPMENT DATE: 24 September,
1993
THROUGH: DIRECTOR, POLICY AND ASSESSMENTS
You have asked for further comment on the consultation
process with residents in relation to the Le Cornu site
development proposal, and the request for your concurrence.
While the City of Adelaide legislation has no formal process
for consultation with residents, the City Planning
Commission invited objectors to a formal meeting and gave
them the opportunity to speak. The North Adelaide
Residents' Society, abutting residents and nearby commercial
competitors spoke in opposition. The Commission refused the
earlier scheme at least partly on grounds raised by these
objectors. At the 'compulsory conference' meeting following
the earlier refusal and appeal, the Commission resolved to
approve amended plans with two townhouses placed between the
carpark and immediately adjacent houses. The Commission's
resolution included a requirement to consult those adjacent
residents on the final design of the townhouses. The
Commission Secretary (Helen Hele) then consulted each
abutting resident individually and four written responses
are attached on this file (see yellow tag marked 'Residents
comments (4)'). It is fair to say the residents support the
townhouses but remain opposed to the total scheme. There
also remains opposition from other commercial operators in
O'Connell Street on the grounds of competition.
Accordingly, while there has been extensive consultation
there remains substantial local opposition to the scheme,
irrespective of its design. It is therefore recommended
that you concur with the granting of approval by the City of
Adelaide Planning Commission.
(signed) Philip Smith
MANAGER, DEVELOPMENT ASSESSMENT BRANCH"
55. Following that minute the Minister wrote to the Chairman of the Commission as follows:-
"Date: 28 SEP 1993
The Rt Hon The Lord Mayor
Mr H J Ninio
Chairman City of Adelaide Planning Commission
3rd Floor, 55 Grenfell Street
ADELAIDE SA 5000
ATTENTION: MS HELEN HELE
My Dear Lord Mayor,
In accordance with Sections 19(4), 24(4) and 25(1) of the
City of Adelaide Development Control Act 1976 (as amended) I
have considered the recommendation of the City of Adelaide
Planning Commission to grant approval to Archer Pty Ltd to
construct a one and two level retail and office building
with ancillary carparking at 62-100 O'Connell Street,
114-120 Archer Street, 103-107 Tynte Street, 1-39 Centenary
Street, 1-17 Watson Street, 2-18 Stephens Place, North
Adelaide. I concur with the decision of the City of
Adelaide Planning Commission to grant approval for this
development in accordance with the plans - P5852B (93-166
-SKI-8B/28) - and subject to the proposed conditions.
Yours sincerely,
(signed) Greg Crafter
MINISTER OF HOUSING, URBAN DEVELOPMENT AND LOCAL GOVERNMENT
RELATIONS"
56. It is common ground that such response was couched in the terms of a draft actually submitted by Ms Hele to the Minister, for use by him in the event that he was disposed to accept the advice which she had tendered to him on behalf of the Commission. It follows that, however expressed, it was plainly intended to constitute a concurrence or consent as to all issues adverted to in the final two paragraphs of her letter to the Minister dated 17 September 1993, as above recited.
57. Upon receipt of the Minister's letter, Ms Hele wrote to Archer advising that the Minister had concurred in the decision of the Tribunal to grant approval "to an amended proposal" by Archer "to construct a one and two level retail and office building with ancillary car parking at" the development site, subject to 30 stipulated conditions. As these conditions assumed some importance in the course of submissions, I attach a copy of them as an annexure to these reasons.
THE ISSUES
58. At the outset of the hearing of the plaintiffs' application, Mr Mansfield QC identified six major issues for consideration. These were documented by him and accepted by all counsel as the appropriate focus for debate. I will, accordingly, deal with them, as appropriate, in succession.
59. First, it was contended that the action of the Minister in requesting the Council to refer the application to the Commission, pursuant to section 19(2) of the Act, was invalid and of no effect because:- (1) the Government manifestly did not, in fact, have a relevant "substantial interest", as required by the statute at the time; and that (2) "in any event there was no material before the Minister upon which the necessary degree of satisfaction could have existed."
60. As has already emerged, the pre-condition for the making of a request under the section is that expressed in subsection (2) in these terms:-
"(2) Where the Minister is satisfied that the Government of
the State has a substantial interest in the result of an
application to the Council under Part IV, the Minister may
request (by writing setting out the grounds upon which the
request is based) the Council to refer the application to
the Commission for determination."
61. Mr Mansfield QC argued that the phraseology there employed falls to be contrasted with that in section 26a(1), which is to be found in a different Part of the Act; and stipulates that:-
"26a (1) The Governor may, if of the opinion that a proposed
Development in the municipality is of major social, economic
or environmental importance, by notice published in the
Gazette, declare that this Part applies to that
Development." (The practical effect of such a gazettal is to
require preparation of an environmental impact study after
calling for public submissions, following which the proposed
development is to be approved or rejected by the Executive
itself.)
62. It was his contention that section 26a is clearly pre-occupied with what could fairly be called broad "political" considerations, whereas the language employed in section 19 is far more restricted in its scope. He asserted that it could only properly be said that the Government had a "substantial interest" in the result of an application if that application had some potential to affect proximate land, or a proximate development or enterprise, in which the Government had a direct, beneficial interest. This, he said, was simply not the situation in the present case, and, accordingly, there was no lawful foundation for the request made.
63. In my view such a contention is untenable. It seems to me that no assistance whatsoever is to be gained from a consideration of section 26a, which is a key provision related to a quite different Part of the Act. It is concerned with a discrete type of situation, as to which Part IVA stands as a complete, self contained code.
64. On a fair perusal of section 19(2) there does not appear to me to be any warrant for failing to accord the phrase "substantial interest" the full, normal meaning naturally attaching to the words used. It connotes a concern which is real or of substance; and which is not insubstantial or nominal (Cf Building Workers' Industrial Union of Australia and Ors v Odco Pty Ltd (1991) 99 ALR 735 at 769). Had the legislature wished to limit the type of interest to one proximate to some Government land, development or undertaking, it could readily have said so. It did not. I conclude that the interest contemplated can be one which reasonably arouses any type of concern fairly perceived by Government to be of substance from its point of view, whether on policy grounds or otherwise. That interest may arise by virtue of potential impact on proximate land or some development or undertaking in which the Government is involved. On the other hand it could arise by virtue of considerations related to economic development for the State, social issues of importance to the Government, or even important political/policy implications arising from a proposed type of development.
65. It was also contended on behalf of the plaintiffs that the letter written by the Minister must be taken exclusively to have spelt out the nature of the interest perceived; and that none of the matters adverted to, taken either singly or in combination, amounted to what could fairly be characterised as a relevant interest - at best they were political concerns of a type that had nothing relevantly to do with any "result" of the development application.
66. Such a submission discloses a fallacious construction of the subsection. As drafted, it envisaged two successive, but quite separate, steps. The Minister was required, initially, to satisfy himself that the Government had a substantial interest in the result, that is, in the ultimate outcome, of the application. Having arrived at that state of mind it was then for him, as a matter of discretion, to consider whether or not he would request the Council, in writing, to refer the application upon the basis of grounds expressed by him.
67. It by no means follows that the basis of a Minister's initial satisfaction will always be coincident with the grounds upon which he proceeds to exercise a discretion to make a request, although they may be. The grounds of exercise of the discretion may well, quite properly, involve issues of policy and considerations quite different from the basis of concluding that a substantial interest existed. A Minister may conclude that the Government has a relevant substantial interest, but, nevertheless, for all manner of reasons, conclude, for example, that it is not appropriate or desirable to request a reference.
68. So it is that, in the instant case, it cannot be assumed that the grounds indicated in the letter of request exclusively indicated the basis of the initial satisfaction. This being so the argument addressed by Mr Mansfield QC based upon Kioa and Ors v Minister for Immigration and Ethnic Affairs and Anor
(1985) 62 ALR 321, as to the impact of one irrelevant or inappropriate consideration upon actions ultimately taken, falls to the ground.
69. The onus quite clearly rests upon the plaintiffs of proving that there was no basis upon which the Minister could properly have satisfied himself for the purposes of the subsection. In my opinion, they have failed to do so.
70. No evidence has been elicited as to what matters were taken into consideration by the Minister, beyond obtaining discovery of relevant documents. The plaintiffs were driven merely to rely on inferences which they sought to draw from the grounds stated by the Minister in this letter for the request which he made.
71. Quite apart from the impact of the principle of omnia pr sumuntur rite esse acta, in absence of direct evidence indicating irregularity (as to which the reasoning in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs and Ors (1986) 67 ALR 282 at 297, Minister for Natural Resources v New South Wales Aboriginal Land Council and Anor (1987) 9 NSWLR
154 and Williams v McCarthy (1979) 21 SASR 529 at 535 are apposite) it seems to me that, on any view, the very grounds stated in the Minister's letter do indicate the existence of a substantial interest.
72. In so saying I do not ignore the criticism that, on any view, the wording of the letter is infelicitous - in that, in terms, it speaks of the "proposed development" rather than the "result" of the application. However, reading the letter as a whole, I entertain no doubt that the Minister had in fact directed his mind to that latter situation.
73. Be that as it may, I am of the view that it is important to bear in mind that:-
- the City of Adelaide is the seat of Government for and is
particularly important to all citizens of the State, because
of the main access routes for arrival and departure
traversing it;
- a large number of non residents of the City daily have
resort to it from the wider metropolitan and country areas;
- the heritage, attractiveness and tourism features of the
City and its facilities are of concern to a wide range of
persons, many of whom do not reside within it;
- the possible closure of or encroachment on or over roads
and the development of a major retail facility adjacent to a
main artery into and out of the City could have possible
effects ranging beyond the immediate concern of the
residents of the City and the Council.
74. All of these facets, some aspects of which are identified in the letter in any event, would have warranted a proper satisfaction on the part of the Minister. Additionally, the reference in his letter to the large number of public representations, the fact that this matter appeared to be yet another example of a destabilising factor in what seems to have become a notorious schism within the Council between the so-called "pro development" faction and the perceived "anti development" faction and the impact which it could have on both the general efficacy of its operations (and also the fair, proper and objective consideration of the particular application) were clearly matters of significant concern to the Government in the public interest.
75. This first point relied upon by the plaintiffs has simply not been made out.
76. It was further contended by the plaintiffs that the Commission erred in law in a fundamental respect, because it treated the Archer application as one involving an "On merit" use, for the purposes of the Principles, when, in actuality, the proposed car parking facility in the R12 precinct was a "prohibited" use.
77. This aspect requires consideration of certain provisions of the Principles.
78. Inter alia, the Principles identified, separately as to each precinct, the desired future character of the area; and set out the type, nature and attributes of development appropriate to that precinct. Detailed use charts indicated certain specific uses which were desired, prohibited or could be permitted on merit. These fell to be read in light of other applicable general principles and, in any event, did not cover all contingencies. In this regard it is to be noted that the Principles generally stipulated that adequate car parking should be provided to serve a development, either within the site area of the development or elsewhere. Nowhere was there any empirical prescription or formula as to the minimum or maximum quantum of parking to be provided.
79. As I understand the concept of the Principles, any proposed use which was not referred to in a use chart was permissible if it could be shown not to be in direct conflict with some other feature of the separately stated desired future character of a precinct.
80. The use chart applicable to the R12 Precinct prohibited passenger terminals, minor transport depots, freight terminals, public parking stations and open lot parking. It was otherwise silent as to transportation related features. Each of the descriptions employed was the subject of an express definition, set out in Section 1 of the Principles.
81. Those primarily relevant to this matter were "public parking station" and "open lot parking".
82. By definition a public parking station encompassed the use of a building for the parking of vehicles, such parking being available to the public on payment of a fee or charge. Clearly, that had no application to the Archer development, because the development application had been lodged on the express basis that the parking facility was designed to service the retail and office development on the basis of free parking.
83. The concept of open lot parking was defined as extending to the use of land for the parking of vehicles in the open air, but did not include ancillary parking or a public parking station.
84. In the case at bar this definition was also not applicable, in my opinion, because it is plain that the parking facility in issue:-
- did not fit the description of "the use of land for the
parking of vehicles in the open air" in the sense which I
take that description to have been used. What was in
contemplation was plainly the typical ground level open
space parking lots which are seen in some other parts of the
City at the present time. The description was not apt to
encompass a multi level building structure having walls and
internal ceilings, designed to accommodate vehicle parking,
even if the top level had no roof.
- was, in fact, a facility for "ancillary parking", as
elsewhere defined in the Principles. The lastmentioned
phrase was defined as being pertinent to the use of land for
parking of motor vehicles ancillary to another activity
carried out on that, or other, land, such parking being
available to the public or to occupants of the land where
such activity was carried out, for no fee or charge.
85. However it expressly excluded public parking stations, terminals and the like, even where they were ancillary to another activity carried out on that land.
86. It must be emphasised that, although the present proposed parking facility is quite large - it is designed to accommodate some 300 vehicles - there was no evidence (and it has never been suggested) that the size and nature of it was disproportionate to that which would fairly be needed to service the related retail and office facility.
87. As I understood him Mr Mansfield QC sought to argue that, considered alone, such was the magnitude of the facility, that it had to be regarded as being what he described as "a substantial part of the whole development". It was, he asserted, "a fundamental part of the whole development" and was not ancillary "in the sense of subsidiary or subservient".
88. Of course that submission begs the question as to the sense in which the word "ancillary" was employed in the definition.
89. In its primary, normal usage the word "ancillary" connotes something which is "auxiliary" or "accessory" to another thing. The concept is essentially that of a situation in which what is ancillary is not the main object or purpose of an activity or facility, but rather that which assists in the effective attainment of the major aim of the overall initiative.
90. Here the principal and dominant aim of the project is to provide a retail and office facility. The car parking facility is merely supportive of that aim, which could not - in either practical or legal terms - be attained without it. To plagiarise expressions used by Glass JA in Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161 (albeit in a somewhat different context), in the context of the proposed development, the car parking facility is obviously incidental to the retail and office facilities and is not intended, in any real sense, to operate independently of them.
91. What is involved is essentially a question of fact and degree (Lizzio and Anor v The Council of the Municipality of Ryde (1983) 155 CLR 211) and some fine distinctions sometimes need to be drawn. However what is here in contemplation is a far cry from, for example, the school boarding house situation addressed by Pearlman J in Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151. As I have said, the facility presently in issue is a necessary feature of the principal development and is actually required by the Principles themselves. The fact that, in terms of size, it forms a substantial segment of the total development site is not, of itself, the determinant factor. Moreover, the situation must be viewed on a practical and not technical basis. As was pointed out in Davenport v Waverley Municipal Council and Ors (1981) 46 LGRA
97 whilst, in one sense, car parking could be said to be an independent use, whether or not that is so in the planning sense depends very much upon the nature of the facility and its purpose.
92. In the course of his submissions Mr Mansfield QC sought to contend that, quite apart from the aspect above discussed, such was the nature and magnitude of this development proposal, that it should be seen as one single, composite and indivisible scheme for retail outlets and offices with associated parking - to the extent that it ought to be viewed as seeking to import into the R12 Precinct retail outlets and offices, being a prohibited use. No authority was given to support such a novel proposition and, with respect, it is both contrary to fact and common sense. All retail outlets and offices are intended to be physically located in the R6 Precinct and would be separated from the R12 Precinct by Centenary Street. The only portion of the development intended to impinge into the R12 Precinct is the car parking facility. The argument advanced is ingenious but totally devoid of physical reality.
93. Viewing the present development proposal in a realistic manner I fail to see that there is any substance in the suggestion that the Commission misdirected itself as to the nature of the proposed use.
94. I next move on to the suggestion that the approval ultimately given by the Commission was improper in that it:-
- reflected decisions taken by Ms Hele beyond powers
delegated to her and
- failed to have regard to certain relevant factors.
95. In addressing these questions it must firmly be borne in mind that a heavy onus rests upon the plaintiffs of proving that which it asserts (Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at 194).
96. One must commence the examination by noting that Ms Hele was both the Secretary and the Executive Officer of the Commission. It was both within her authority and also her prescribed duty to take all such steps as were requisite to carry the various decisions of the Commission into effect, quite aside from discharging any functions specifically delegated to her.
97. As I understood him Mr Mansfield QC expressly relied upon the content of a letter written by Ms Hele to Mr Oberdan, representing Archer, on 10 September 1993 as evidencing excess of authority. This read as follows:-
"10 September, 1993
Mr V Oberdan
Director, Oberdan Group Archer Pty Ltd
12-14 Grenfell Street 3rd Floor
ADELAIDE SA 5000
Dear Mr Oberdan,
Prior to forwarding of your application for development at
62-100 O'Connell Street, North Adelaide to the Minister for
concurrence, I would be pleased if you would provide the
Commission with one full set of updated plans for the
proposed one and two level retail and office building with
ancillary carparking. In particular, it is requested that
attention be given to defining: . the exact boundary of the
development site; . the proposed use of the loading bay at
the rear of the shops on the corner of Tynte/O'Connell
Street;
- the carpark/retail link over Centenary Street at all
levels;
- the staging, if any of the proposed carpark component of
the development; and . elevations detailing the retail and
carpark design. I have attached a set of the draft
conditions proposed in association with this application and
suggest that, where possible, you address these matters and
amend documentation to suit. In addition it is requested
that you provide an update on the Murray Young and
Associates traffic study, previously prepared for this
development, taking into account the changes made to carpark
access/egress patterns.
Finally, I would be pleased if you could provide the
Commission with documentation verifying the feasibility of:
- closing Watson Street; and
- incorporating that part of the land in 99 year leasehold
proposed for landscaped open space into the development
site.
On receipt (of) this documentation I shall be able to
forward the proposal to the Minister for his concurrence.
Yours sincerely,
Helen Hele EXECUTIVE OFFICER"
98. It was said that the request to give attention to the five matters listed in the second paragraph and the request contained in the penultimate paragraph exceeded any delegation of authority to Ms Hele; and this invalidated the concurrence of the Minister, in that what was sent to him was not authorised by the Commission. In this regard stress was placed upon the content of the express delegations contained in the two sets of minutes related to the meeting of 17 August 1993, reproduced earlier in these reasons.
99. True it is that the aspects of the letter referred to do not bear on the express areas of delegation. However, quite apart from the fact that they essentially deal only with matters of administrative detail and not of substance, it is obvious that the aspects referred to by Ms Hele in the letter are routine, processing requirements or suggestions which, on any common sense appraisal, manifestly fell within the normal scope of her activities as executive officer to the Commission. Her official job specification indicates that she is to provide a high level executive and secretarial support service to the Commission - by which I take it that, as with any senior executive officer, she is to translate the broad decisions of the Committee into detailed executive action.
100. But a perusal of the letter relied upon immediately indicates that what she did fell fairly and squarely into that category. There is no substance in this area of complaint.
101. It was further complained that the decision of the Commission was invalid because, acting on incorrect advice of Ms Hele, it inappropriately failed to have due regard to the issues identified in the resolution of the Council which, as earlier appears, were expressed in these terms:-
"(d) Council urges the CAPC to thoroughly evaluate the
proposal against issues of State significance including:-
(1) The economic impact of the development on the existing
retail base of the precinct, the inner city and near
metropolitan retail base.
(2) The appropriateness of the development in terms of the
distribution of retailing centres in the inner metropolitan
area.
(3) The impact of the development on the major northern
traffic corridor to the city.
(4) The impact of the development on the heritage, character
and cultural significance of North Adelaide.
(5) The enhancement of the cultural tourism potential of
North Adelaide and South Australia.
(6) The policies of the Government's Metropolitan State
Planning Strategy."
102. There can be no doubt that Ms Hele, supported by a like view which had been expressed to her by the City Planner, indicated to the Commission in her report that, in her view, in dealing with the application, it had no mandate to evaluate it "other than in terms of relevant planning policies and principles". She went on to comment:-
"Accordingly, expert opinion has not been sought on the
aforementioned issues. Indeed, it is relevant to note that
the High Court of Australia (Gantitus (sic) v Kentucky Fried
Chicken) recently ruled that commercial competition is not a
planning matter and that competition is only relevant in a
planning sense if a loss of community facilities is the
likely to result from the introduction of commercial
competition. There is no reason to believe that the
LeCornu's site development, if approved, would result in a
loss of facilities to the community. Neither is there any
reason to believe that the applicant is proposing to proceed
with the development of a retail/office complex which will
remain untenanted (the lead tenant Coles/Myer is indeed
already committed) and result in a vacant, un-utilisable
facility in North Adelaide. Whether or not the development
would impact upon 'the heritage, character and cultural
significance' of North Adelaide or on 'the enhancement of
cultural tourism' is a matter of opinion, but careful
attention to conditions - design details, materials and
finishes, landscaping and maintenance of same, screening
etc. would ensure minimal intrusion (by the development) on
the surrounding area."
103. As earlier recited Mr Smith, who was in attendance at the relevant meeting, actually supplied the members of the Commission with copies of extracts from the Gantidis Case (1979) 140 CLR 675 which, presumably, they read.
104. Whether or not the advice tendered by Ms Hele to the Commission was correct as a matter of law, the short answer to the plaintiffs' complaint in this regard is to be found in the judgments in the Gantidis Case themselves. The High Court there held that the absence, in the determination of a tribunal, of the mention of issues does not justify an inference that it failed to have regard to them, especially where the relevant pronouncement made no attempt to definitively set out and adjudicate on them. That is essentially the situation here.
105. The Commission was made aware of the issues and was tendered the advice and comments above adverted to. It is simply not known what attitude it finally adopted and whether or not it accepted the advice given. There is no compelling reason to infer any particular situation. The plaintiffs have failed to discharge their primary onus as to what (they say) occurred, even if their contentions as to the law are correct and the issues were matters for the proper concern of the Commission. It therefore becomes unnecessary to discuss the concepts considered in authorities such as The Queen v District Council of Berri; Ex parte Eudunda Farmers Co-operative Society Limited and Ors (1982) 31 SASR 342, R v The City of Munno Para; Ex parte John Weeks Pty Ltd and Anor (1987) 46 SASR 400, Minister of Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 at 39 and Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 at 375.
106. It was further contended by the plaintiffs that the approval granted by the Commission with the concurrence of the Minister was invalid because it failed to extend procedural fairness to the plaintiffs. In this regard Mr Mansfield QC sought to argue that the Commission had generated a legitimate expectation in the plaintiffs that they would receive notice of and be heard as to any significant variation of the development application as to which submissions had earlier been made; and that such expectation was not fulfilled in relation to what transpired at or after the section 29 conference. They were, it was said, denied natural justice.
107. Reliance was placed on the familiar principle enunciated in Kioa and Ors v Minister for Immigration and Ethnic Affairs and Anor (1985) 62 ALR 321 and, perhaps more directly, Haoucher v Minister for Immigration and Ethnic Affairs
(1990) 64 ALJR 357.
108. As McHugh J pointed out in the latter case, a legitimate expectation may arise either because the exercise of a statutory power may directly affect an actual or prospective right, interest, privilege or benefit which a person can legitimately expect to continue to enjoy or enjoy in the future (in the sense and type of scenario referred to by him), or by virtue of conduct of the authority proposing to exercise the relevant power, or from the nature of a privilege currently enjoyed.
109. In the present case the plaintiffs have simply failed to demonstrate the factual basis for asserting a relevant legitimate expectation.
110. It is beyond question that the Act did not confer on them or any other third party any right to be heard. Moreover the conduct of the Commission - far from tending to give rise to any positive expectation at all - made it abundantly clear, from the outset, that it did not propose to confer any specific rights to be heard. As I have recited in my summary of the facts, the Commission resolved, at its first meeting in relation to the application, that it would not hold public meetings, as suggested to it; and that it would only entertain limited submissions on one occasion from a specific group of nominated persons. It later, of course, instructed Ms Hele to liaise with certain residents as to the matters specifically delegated to her.
111. This ground of complaint also has not been made out. The plaintiffs further sought to attack the "concurrence" of the Minister. They argued that this was invalid in that:-
- he did not - it was said - independently perform the
functions and responsibilities assigned to him under the
Act; and
- he did not provide his concurrence upon a proper
foundation of fact - because of a failure adequately to
consult interested parties. Once again the plaintiffs bear
a heavy onus of proving that the Minister did not properly
discharge his statutory duty. They must overcome the well
established presumption that he did (Attorney-General for
the Northern Territory v Minister for Aboriginal Affairs and
Ors, Minister for Natural Resources v New South Wales
Aboriginal Land Council and Anor particularly at 164 et
seq.)
112. In effect Mr Mansfield QC sought to argue that the Minister had not independently conducted his own investigations or pursued his own separate enquiries, but had merely acted as a "rubber stamp" - accepting the documentation that had been sent to him by Ms Hele. This was not - it was submitted - a proper, independent discharge of responsibility.
113. Such a contention must be rejected out of hand. It is solely based on inferences sought to be drawn from the documentation discovered to the plaintiffs. Those inferences cannot be supported.
114. Quite aside from the facts that, in any event, the documentation forwarded fairly presented to the Minister both the development proposal and the issues arising in relation to it (as well as the attitude of the Commission) and he had actually earlier granted a personal interview to various objectors (including the two personal plaintiffs), so that he was well able to bring a properly informed, independent mind to bear on the matter, the request for his consent and/or concurrence passed through the hands of no less than three of his senior officers, with one of whom the Minister obviously discussed the matter orally. It is not known what oral discussions the Minister may have had and with whom. It is not to be supposed that he did not, as is the usual course, seek input and advice from his senior advisers.
115. The plaintiffs have fallen far short of demonstrating that the Minister did not properly and independently discharge his function or fail, by appropriate consultation, to establish the relevant facts. The fact that, in his response, which was drafted by Ms Hele for him, the word "concur" was used instead of "consent" is, in my view, of no significance. The intent is clear and it does not suggest any lack of independent consideration of relevant matters.
116. There only remains to consider what is, perhaps, the high water mark of the plaintiffs' case.
117. Mr Mansfield QC pointed to the various revisions of the initial development proposal which had taken place over time. He asserted that, as a consequence, that which was eventually consented to by the Commission and concurred in by the Minister was fundamentally different from that originally proffered for consideration.
118. Reliance was placed on authorities such as The Corporation of the City of Marion v Lady Becker and Ors (1973) 6 SASR 13 and The Queen v Corporation of the City of Salisbury; Ex parte Burns Philp Trustee Co Ltd (1986) 42 SASR
557 for the proposition that it was not legally competent for the Commission, at, or as a consequence of the section 29 conference, to purport to approve a different plan from that which was the subject of the reference to the Commission; or for the Minister to consent to or concur in it.
119. This submission gives rise to a need to reflect upon two critical aspects, namely:-
- to what extent, as a question of fact, was the project
proposal altered between the time of reference and the time
of eventual consent and how ought the alterations to be
characterised as to their effect?
- what was the legal effect of the alterations, within the
relevant statutory framework? In addressing the first aspect
it is necessary to consider what was said in the above
authorities with some care. In each instance the Full Court
did not focus upon the mere factum of amendments of the
development proposal per se, but upon the impact which they
had.
120. It is critical to bear in mind that, in both instances, what was essentially in issue was whether or not what had been done had operated so as to evolve a new plan "that was fundamentally different in character" from that which was the subject of the initial application. For the purposes of that concept it was the effect of the amendments, rather than the number or detailed nature of them, which was the critical factor.
121. I will shortly return to that issue, apropos the present proceedings, after first directing attention to some aspects of the Act which must first be considered, to place it in context.
122. As has already emerged, the Act envisaged the Council to be the primary planning authority. Part IV of the statute established the legislative framework within which it was to go about its task. Section 24, within that Part, imposed certain obligations on the Council, but specifically authorised it to issue a planning approval, subject to such conditions (if any) which it thought fit to impose. Any condition so imposed was enforceable under the Act.
123. Section 24 was complemented by Regulation 6 of the City of Adelaide Development Control Regulations, 1987, which stipulated that:-
"6. An applicant under section 24 of the Act may amend the
application at any time before the Council determines the
application and, in that case, the application will be taken
to have been received by the Council on the date on which it
received the amendment."
124. The significance of the deemed date was that any changes in law which had occurred prior to amendment but after initial application and any steps which needed to be taken on an initial application became applicable where an amendment was made.
125. The Act recognised that, although the Council was to be the primary approving authority, circumstances would nevertheless from time to time arise whereby it was not appropriate for a final decision to be made by it.
126. So it was that, for example, the consent or concurrence (as the case may be) of the Commission (as an independent body, one half of which was comprised of nominees of the Minister) was required in situations in which the Council itself was concerned in a proposed development, the Council proposed to consent to a prohibited use, or an item of State heritage would be or had been affected. Such qualifications were to be found within Part IV itself.
127. However, an overarching provision of the Act was that found in subsection (2) of section 19, earlier cited, which was contained in Part III of the Act. As an adjunct to the power of the Minister to request a reference to the Commission subsection (4) enacted that:-
"(4) Part IV applies, with the necessary modifications, to
and in relation to any application referred to the
Commission as if -
(a) references in that Part to the Council were references
to the Commission;
and
(b) references in that Part to the Commission were
references to the Minister."
128. The existence of that provision is of considerable importance when the total scheme of various interacting provisions of the Act is considered.
129. It was strongly urged on behalf of the plaintiffs that Regulation 6 did not operate so as to oust the effect of the so-called "Lady Becker" principle, to which I have referred. Counsel for the plaintiffs urged upon me that, even given the content of Regulation 6, if it could fairly be said that the effect of one or more amendments was to produce a development proposal which was significantly different from that which had pre-existed, then, effectively, what was in issue was a new development application which attracted the "Lady Becker" principle. I am unable to accept such a proposition. As Mr Hayes QC pointed out the decisions of the Full Court in the Lady Becker Case and the Burns Philp Case were the product of the quite different legislation which spawned them. Their essential rationale was the need to protect the integrity of the appeal process within the context in which they were decided - two of the important features of which were to ensure that the primary approving authority at all times had an opportunity of reviewing and commenting on a proposal (so that such function was not subsumed by the then appellate body) and that third party rights to notice and/or appeal were not, in effect, abrogated. In due course of time, legislative change was introduced which, to some extent, modified that situation in the general planning area, at least in a functional manner. The process of change, in a sense, culminated in the introduction, in 1982, of the concept of the compulsory conference in the relevant legislation. Regulation 11 under that legislation was careful to ensure that, where amendments took place, any objectors or representors had a clear opportunity of advancing further submissions - within a statutory scheme which conferred a status on them which does not exist under the Act.
130. This falls to be contrasted with the scheme of the Act as here under consideration.
131. Quite apart from the fact that Regulation 6 is, on the face of it, not limited in its scope, the primary approving body, in a section 19 situation, is not the Council, but the Commission, albeit that one half of the members of the Commission are nominees of the Council. Furthermore, no third party rights to notice or of participation, akin to those in the more general planning area, exist under the Act. So it is that the pivotal rationale of the Lady Becker principle has no relevance to the scheme of the Act.
132. I fail to discern why there ought to be implied any limit to the power of amendment conferred by Regulation 6, in situations in which that Regulation is applicable. I suppose that there could be extreme cases in which a purported "amendment" radically changed an original proposal to the extent that it necessarily became so fundamentally different that it could not, by any stretch of the imagination, be considered a logical development or product of the initial proposal and was thus not an amendment as contemplated by the Regulation at all. For example a change from an original retail supermarket proposal to a wholesale warehouse dealing with unrelated products might well fall into such a category. But that is not the scenario in this case. There is no doubt that, when the application was transmitted to the Commission on 1 June 1993, significant amendments had already been made to the proposal in an endeavour to meet various objections raised. It is beyond question that these were sanctioned by Regulation 6 and no question can arise in relation to them.
133. It seems to me that Mr Hayes QC was plainly correct when he submitted that Regulation 6 must be read and construed in light of section 19(4) of the Act, because it is ancillary to Part IV of the Act and designed to give efficacy to it.
134. Subsection (4), properly construed simply means that Part IV, and by necessary implication Regulation 6, remain applicable at all times when the Commission is discharging what would otherwise be the function of the Council. Indeed that is, in effect, what the subsection actually indicates. It says that the Commission is to stand in the shoes of the Council and, by necessary implication, Regulation 6 remains applicable.
135. Any other construction would lead to absurdity and defeat the obvious intention of the scheme.
136. As I read it, section 29(3) simply authorises the Commission, in the circumstances postulated, to reopen and reconsider its Part IV activities in a situation in which it would otherwise be functus officio. Once the Commission does decide to reconsider, then it is once more operating pursuant to Part IV, still standing in the shoes of the Council. I entertain no doubt that it is then entitled to sanction such additional amendments as it sees fit to enable a proposal finally to be adjusted to give effect to the compulsory conference outcome. If that was not the case then the scheme of Part V would, in practical terms, become futile. The whole purpose of the statutory conference must be taken to have been to enable final adjustments to be made so as to give effect to any compromise come to, short of embarking on a full hearing of the appeal. As Mr Hayes QC emphasised, the legislation in question is designed to promote, rather than inhibit, the due resolution of planning disputes. The legislation must be read and construed with that in mind.
137. In my opinion the final amendments made in the instant case in no sense altered the essential character of the proposal. They merely sought to meet the continuing resident objections concerning the impact of the parking facility by masking the R12 Precinct frontage by two town houses and landscaping and made some associated access and layout amendments. On any view these did not attract the potential operation of the Lady Becker principle in any event, because the fundamental character of the proposal continued to be that which it was when the matter was referred to the Commission.
138. Whilst there is some superficial attraction in the plaintiffs' argument on this issue it cannot withstand scrutiny and is totally at odds with the clear intendment of the legislation.
139. Finally, it was submitted that the conditions imposed by the Commission (as annexed to those reasons) were of such a nature and extent that the purported approval was, in reality, no approval at all. Mr Mansfield QC contended that the conditions left so many things unresolved that it was not, in practical terms, a final approval, but, at best, a conditional approval.
140. I accept that, in an extreme case, such an argument might be well founded, if conditions imposed were so "open ended" that a purported approval could not be considered as other than a mere indication of likely future attitude.
141. However, it must be borne in mind that, not only does section 24(7) of the Act confer an unrestricted right to issue an approval subject to such conditions as it sees fit to impose, but it also attaches the force of law to those conditions. Moreover, in the case of a major development of the type here under contemplation it is in the normal course that a large number of aspects are likely to have to be dealt with in detail subsequent to the issue of planning approval. These, in turn, will require various agencies or authorities to exercise quite extensive discretions as to aspects which need to be addressed post approval. Indeed it is for that very reason that section 24(7) is expressed in the wide terms employed in it.
142. I have given careful consideration to the various conditions, which essentially speak for themselves.
143. In my view the 30 conditions imposed are all matters of detail which seem typical of the types of matter which would be found attached to a project of this magnitude. Taken either singly or collectively they do not create an open ended situation of the type to which I have referred. They are specific in nature and no more than one would expect. The additional 23 notifications are not conditions, but simply reminders to the developer of matters which will require attention in the normal course.
144. There is no substance in this ground of complaint.
CONCLUSION
145. For the reasons which I have expressed I am driven to the conclusion that the plaintiffs have failed to make good any of the bases of their application. It must be dismissed. There will be an order accordingly. The stay granted in this matter by order of a Master dated 30 November 1993 will be discharged. ANNEXURE CONDITIONS OF DEVELOPMENT APPROVAL AS NOTIFIED TO ARCHER
(1) Pursuant to the provisions of Regulation 5 of the Regulations under the City of Adelaide Development Control Act, 1976, this approval shall lapse after 18 months from the date of the decision unless the development hereby approved has been substantially commenced on or before that date.
(2) A schedule and samples of all external materials and finishes shall be submitted to and approved by the Commission prior to or at the time of application for approval under the Building Act, 1971.
(3) The colours and finishes of the two (2) townhouses shall be submitted to the Secretary, City of Adelaide Planning Commission for approval by the Secretary in consultation with the four (4) adjoining residents.
(4) The two (2) townhouses hereby approved shall be completed and ready for occupation prior to the commencement of retail trading in the retail/office component of the development.
(5) Details of the landscaping of the site including wherever possible the retention of existing trees shall be submitted to and approved by the Commission prior to the commencement of the development. The landscaping so approved shall be undertaken or completed to the reasonable satisfaction of the Commission within two months of any of the said premises being occupied and such landscaping (including both paving and planting) shall be maintained in good condition. Should any plants languish or die, the applicant (or any person hereafter having the benefit of this approval) shall, when reasonably required by the Commission, replace such plants with others which in the opinion of the Commission are likely to flourish.
(6) The landscaping and security details of the landscaping open space on Curtis Street shall be submitted to the Secretary, City of Adelaide Planning Commission for approval by the Secretary in consultation with the four (4) adjoining residents.
(7) Details of any air-conditioning or air extraction plant or ducting in association with this development to be placed on the exterior of the buildings shall be submitted 55 to and approved by the Commission prior to or at the time of application for approval under the Building Act, 1971.
(8) Details of the relative levels of the ground floors of the building(s) and paved and landscaped areas hereby approved, and the adjoining footpath or street, shall be submitted to and approved by the Council prior to or at the time of application for approval under the Building Act, 1971.
(9) The above ground height (to the top floor) of the carpark shall not exceed 4.8 metres.
(10) The supermarket service area as approved (Amendment H, 28/6/93) shall include a roller door closure to Centenary Street.
(11) Amendment to the supermarket loading delivery area shall be made to ensure pedestrian and vehicular safety to the satisfaction of Council prior to or at the time of Building Act approval.
(12) Details of adequate on-site facilities for the disposal or storage of refuse and waste shall be submitted to and approved by the Commission prior to the commencement of the development.
(13) The car parking spaces hereby approved shall be maintained available for use in association with the premises which are the subject of this application, and no retail trade shall occur on the approved premises until the carpark approved and shown in the plans is completed and open for parking.
(14) The carpark hereby approved shall operate exclusively as an ancillary use to the retail development which forms a part of this approval, and shall subject to condition 15 remain open for use at all times the retail premises are open for trading.
(15) The uppermost (top) deck of the carpark shall not be available for public carparking at any time that the "supermarket" is not open for trading.
(16) The surface of the carpark shall be of a sound absorbing material to the satisfaction of Council.
(17) The operation of the carpark shall be to the satisfaction of Council at all times.
(18) Security of the carpark shall be provided by way of restricted access after trading hours, effective lighting and the provision of low level shrubs at entrance to the carpark from Centenary Street.
(19) The location of the carpark lifts shall be repositioned so that adequate sight distances can be provided for all traffic in and out of the carpark to the satisfaction of Council prior to or at the time of Building Act approval.
(20) Lighting at level 3 of the carpark shall be located in a manner to eliminate light spill to adjacent residential properties.
(21) The final design of ventilation screens to the carpark to prevent overlooking to be to the satisfaction of the Commission.
(22) Bike racks shall be provided for 30 bicycles in a secure area to the satisfaction of Council.
(23) The pedestrian areas shown on the plans hereby approved shall be constructed and kept free of obstructions so as to enable free pedestrian movement both on foot and by wheelchair to the reasonable satisfaction of the Commission.
(24) The lifts and stairwells shall be designed and signed to assist disabled access to the satisfaction of Council.
(25) The provision of toilets shall be to the satisfaction of Council, including lighting and access arrangements.
(26) Adequate lighting shall be provided to the satisfaction of Council in the area of the Centenary Street overpass.
(27) The verandahs shall comply with Council policy, final details of which shall be to the satisfaction of Council prior to or at the time of Building Act approval.
(28) Access arrangements shall provide safe and convenient movement of pedestrians and traffic to the satisfaction of the Commission and Council, details of which shall be provided prior to or at the time of Building Act approval.
(29) The relocation or alteration of any existing corporation installation whether above, upon, in or under any public street or place necessitated by the development hereby approved shall be undertaken by the Council at the applicant's expense. Precise details of such work shall be submitted to and approved by the Council prior to or at the time of application for approval under the Building Act, 1971.
(30) No part of the development hereby approved which would require entitlement to rights-of-way over Watson Street or to construct, maintain, manage or operate any building, structure or works on, across, over or under Watson Street or Centenary Street shall be commenced unless and until such entitlement or entitlements have been secured.
The applicant be further advised that:
(1) A separate approval shall be obtained for any building work as defined in the Building Act, 1971, and for any 58 change in the class or use of a building within the meaning of the regulations under that Act. No such works or change should take place until such approval has been received, and no building or part of a building should be occupied until a certificate of classification has been issued in accordance with those regulations.
(2) This development comprises a mix of uses of parts of the site and buildings as shown on the plans hereby approved. Any material departure from the approved mix of uses of such parts of the site and buildings will require a further approval of the Commission. The applicant should be aware that any further change of use will require the consent of Commission and that such further change of use must be in accordance with the requirements of the City of Adelaide Plan, 1991-1996 in order to be favourable (sic) considered.
(3) The construction, alteration or removal of any crossing place in relation to the development hereby approved and any reinstatement of the watertable, kerbing and footpath will require the separate approval of the Council under Sections 335 to 337a of the Local Government Act, 1934, and such construction, alteration or removal and reinstatement may be at the applicant's expense. Such works should be undertaken before the buildings hereby approved are occupied.
(4) Under Section 50 of the Building Act, 1971, a licence is required for the part of the building or structure of this development that will encroach or project upon, over or under a public place. As a condition of such licence, the Council may require an indemnity for any injuries or 59 damage which may result from the erection or existence of such part of the building or structure.
(5) A separate authority or permit from the Council under the Local Government Act, 1934, is required in respect of any building structure or other works (including the connection of storm water drainage) associated with this development upon, across, under or over a public street or road. Application for such a permit or authority should be made to the City Engineer five working days prior to commencement of work on the site.
(6) The alteration or removal of any public utility or installation necessitated by the development hereby approved may require the authority of the public utility or body owning such installation and the applicant should obtain all necessary authorities from those bodies.
(7) A separate approval is required under Section 780 of the Local Government Act, 1934, to cut, saw or remove any street tree or part thereof. Applications for such approval shall be made to the Director of Parks and Recreation of the Council not less than five working days prior to commencement of work on the site.
(8) Any pruning of trees necessary to maintain the clearance between the trees and the structure, shall only be carried out by the Department of Parks and Recreation.
(9) The Corporation is not liable for any damage to the structure arising from the growth of the trees, or by the shredding (sic) of bark, leaves, fruit, etc.
(10) It is proposed to remove the existing street trees in O'Connell Street adjacent to this proposed development and replace them with Platanus orientalis (Oriental Planes).
At this time the proposed tree layout has not been finalised as this was to be determined in part by the development of this property. To ensure that the concerns of all involved are addressed, a meeting between the developers, the Department of Parks and Recreation and the Department of Engineering and Traffic to determine the most appropriate layout will be required. The final tree layout will need to take into consideration service connections to the development and in the footpath, etc. The verandah design will then need to be finalised taking into consideration the final street tree layout.
(11) Centenary Street tree planting as indicated on the drawing whilst desirable has not been proposed by the Department of Parks and Recreation and is dependent upon underground services and the provision of funds.
(12) The street trees in Archer Street and Tynte Street shall not be removed.
(13) The proposed verandahs in Centenary Street, Tynte Street, O'Connell Street and Archer Street should comply with Council's requirements particularly with respect to clearance behind the kerbline and clearance above the footpaths. Any variation from policy should be discussed with the City Engineer prior to finalising the design.
(14) The method of disposal of roof water drainage to be discussed with and approved by the Department of Engineering and Traffic prior to completion of detailed design plans.
(15) The connection of storm water to any portion of the Corporation's underground drainage system to be subject to separate application for approval by the City Engineer.
(16) The applicant is to ensure there is no objection from any of the Public Utilities in respect of underground and/or overhead services and any alterations which may be required are to be the applicant's expense.
(17) The sewerage system serving this development hereby approved should be laid out and designed in such a manner as ensures the retention of the existing street trees notwithstanding the requirements of the Regulations under the Sewerage Act, 1929.
(18) An application for street levels should be made to the Department of Engineering and Traffic.
(19) Any alteration to on-street parking requirements, kerblines and protuberances must be the subject of a separate application to the City Engineer.
(20) The proposed narrowing of the eastern footpath of Centenary Street adjacent to the Church if still required should be the subject of a separate application to the City Engineer.
(21) The emission of noise from the premises is subject to control under the Noise Control Act, 1977, and regulations thereunder and the applicant or person with the benefit of this approval should comply with those requirements.
(22) Separate approval must be obtained for site hoardings, site huts and other temporary structures and for any encroachment of the building site onto or over a public street or footpath. The City Building Surveyor and the City Engineer should be contacted during the design stage of the development.
(23) This approval does not include signage for which a separate application must be submitted for Council approval.
(24) TO AVOID DELAY IN THE PROCESSING OF BUILDING APPLICATIONS, PLEASE ENSURE THAT ALL PLANNING CONDITIONS REFERRED TO ABOVE ARE COMPLIED WITH PRIOR TO LODGEMENT OF THE APPLICATION.
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