Joy Hayes and Others v Development Assessment Commission and Others No. SCGRG 96/895 Judgment No. 5667 Number of Pages 12 Building Control and Town Planning

[1996] SASC 5667

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Building control and town planning - development application - application granted - planning authority failed to have regard to amendment to Development Plan - whether amendment later repealed - amendment held to be in full force and effect. Planning Act (SA) 1982 s 41; Development Act (SA) 1993 ss 23, 24, 25, 27, 29, 31, referred to. Craig v South Australia (1995) 69 ALJR 873; R v City of Munno Para; ex parte Weeks (1987) 46 SASR 400; City of Enfield v Development Assessment Commission (1994) 63 SASR 22, applied. Meath v Distraict Council of Angaston (1981) 27 SASR 544, distinguished.

HRNG ADELAIDE, 28 May 1996 #DATE 5:6:1996 #ADD 28:10:1996
Counsel for plaintiffs:                 Mr B Hayes QC with
   Mr M Beamond
Solicitors for plaintiffs:             Mellor Olsson
Counsel for defendant DAC:             Mr B Selway QC with
   Mr C J Brooks
Solicitors for defendant DAC:         Crown Solicitor (SA)
Counsel for other defendant             Mr M Roder with City of West Torrens:   Mr K Tredrea
Solicitors for other defendant City of West Torrens:   Norman Waterhouse
Counsel for other defendant Prizac:     Ms F Nelson QC with
   Mr P McNamara
Solicitors for other defendant Prizac: N Minicozzi

ORDER
Order and declaration made.

JUDGE1 DEBELLE J On 20 February 1996 the Development Assessment Commission granted provisional development plan consent to the Corporation of the City of West Torrens ("the Council") to develop land owned by it as a retail shopping centre. It was common ground that, in reaching its decision, the Commission failed to have regard to the Neighbourhood Centre Zone (Hilton) which had been inserted into the Development Plan applying to the Council area on 27 October 1993. On 23 April 1996 the plaintiffs instituted an application seeking an order in the nature of certiorari to quash the decision. It was also common ground that, if it is decided that the Commission should have had regard to the Neighbourhood Centre Zone (Hilton), it has made a jurisdictional error: Craig v South Australia (1995) 69 ALJR 873, 877; R v City of Munno Para; ex parte Weeks (1987) 46 SASR
400, 403; City of Enfield v Development Assessment Commission (1994) 63 SASR 22, 29-30. The issue turns on whether a later amendment to the Development Plan deleted the Neighbourhood Centre Zone (Hilton).
2. The plaintiffs also applied for declaratory relief challenging the Commission's decision on other grounds but, at the hearing of the application, they abandoned all but one of those claims. The only declaration which the plaintiffs now seek in addition to the order of certiorari is a declaration that the Development Assessment Commission is required to have regard to the Neighbourhood Centre Zone (Hilton) when determining the Council's application.
3. The plaintiffs' application was heard on 28 May 1996. I then made an order quashing the development consent and granting the declaration for reasons to be published later. These are the reasons for that decision.
4. It is common ground that the plaintiffs have standing to make the application. The initial defendants were the Development Assessment Commission and the Council. A company called Prizac Developments Pty Ltd was, on its application, added as a defendant. It has contracted to purchase from the Council both the land which is the subject of the development consent and the development consent.
5. The Council owns a substantial parcel of land bounded by Burbridge Road, Bagot Avenue and Attrill Avenue in the suburb of Hilton. The whole of the land is within the area of the Council and is subject to those provisions of the Development Plan which relate to the Council area. Since the Development Act 1993 came into operation on 15 January 1994, the Plan has been called the West Torrens (City) Development Plan. The Council purchased the parcels which constitute the subject land between September 1990 and May 1994. In order to understand the issues it is necessary to examine the history of the zoning of the subject land.
The Zoning in 1992 6. In 1992, the subject land was located within two zones, a Local Shopping Zone and a Residential 2 Zone. The subject land was depicted in two maps which formed part of the Development Plan and were designated WeT/8 and WeT/9. In 1992 the Council initiated an amendment to the Development Plan. At that time, the Planning Act1982 was in force. Section 41 of the Planning Act required amendments to the Development Plan to be made by way of a supplementary development plan. The amendment was made pursuant to the procedure prescribed in s41. The supplementary development plan was called "the Neighbourhood Centre Zone (Hilton) Supplementary Development Plan". For convenience, I will call it "the Hilton SDP".
7. Section 41 required a supplementary development plan proposed by a Council to be approved by the Minister. Thereafter, the plan was to be made available for public inspection together with a statement setting out the nature of the investigations carried out in the course of preparing the supplementary development plan and any conclusions drawn from those investigations: see s41(4) and (6). After the public had had an opportunity to make submissions and a public hearing had been held, the Council had to send the supplementary development plan, the submissions, and the Council's recommendations in relation to those submissions to the Advisory Committee on planning, a committee established pursuant to the Planning Act: s41(6) to (10) inclusive. The Advisory Committee then reported to the Minister who could then approve the supplementary development plan (as prepared or as amended) or refuse to approve it: s41(11) to (11b). If the Minister approved it, the supplementary development plan had to be subjected to parliamentary review: s41(12) to (18). Thereafter, the Minister referred the plan to the Governor who, by notice in the Gazette, declared the plan to be an authorised supplementary development plan and fixed a day on which it should come into operation: s41(19). Those procedures were implemented in relation to the Hilton SDP.
8. The statement of investigations prepared in accordance with s41(4) stated that the Hilton SDP formed part of a draft supplementary development plan known as "the Centres Supplementary Development Plan". Among the objectives of that supplementary development plan was a strategy for the provision of Centres throughout the Council area and to provide a hierarchy for those Centres. The Council decided that it wished to proceed more expeditiously with the creation of the Hilton Neighbourhood Centre Zone. To that end, it introduced the Hilton SDP to facilitate the prompt re-zoning and redevelopment of the subject land. The Hilton SDP nevertheless remained an integral part of the strategy to facilitate the future development of Centres in the Council area. This was expressly stated in a number of places in the statement of investigations. At that stage, several Neighbourhood Centres were proposed and they included the Hilton Neighbourhood Centre the subject of the Hilton SDP. The Council's reasons for giving the Hilton SDP priority were stated on page 2 of the Statement of Investigations:
    "The Hilton Neighbourhood Zone is currently the subject of
    redevelopment proposals which have the endorsement of Council.
    While they include upgrading of Council offices and facilities,
the future of the retail area (Policy Area 1) has been
    negotiated between Council and developers in line with the
    neighbourhood shopping proposals adopted for this area of West
    Torrens. To this end the speedy creation of the Hilton
    Neighbourhood Zone will ensure redevelopment plans proceed.
    This Supplementary Development Plan has therefore been lifted
    from the general Centres proposals (without changing the overall
    Centre Strategy) to be quickly processed as a simple and
    separate document." By this time the Council had already acquired a substantial portion of the land in the proposed Neighbourhood Centre Zone at Hilton.
9. By publication in the Gazette on 27 October 1993, the Governor declared that the Development Plan was amended by the Hilton SDP. The amendment created the Neighbourhood Centre Zone (Hilton). The declaration published in the Gazette gave effect to an instrument signed by the Governor, which stated the terms of the amendment. The instrument was expressed in these terms:
    "The Development Plan is amended as follows:
    (The page numbers refer to the second publication of the
    Development Plan pursuant to Part IV of the Act.)
    Metropolitan Adelaide
    Part VI - Metropolitan Adelaide: Page 9 dated 19 September
    1991
    By inserting under the heading 'material', immediately after the
    last item, 'City of West Torrens - Neighbourhood Centre Zone
    (Hilton) supplementary development plan, authorized .......'

West Torrens (City)
    Part VI - West Torrens (City): Page 13 dated 19 September 1991
    By inserting the whole of Attachment A under Principle of
    Development Control 3.
    Part VI - West Torrens (City): Maps
    By replacing Maps WeT/5, 8 and 9 with new Maps WeT/5, 8 and 9,
    and inserting new Map WeT/16." The notice published in the Gazette was in these terms:
"PLANNING ACT, 1982 SECTION 41 (19): CITY OF WEST TORRENS
    NEIGHBOURHOOD CENTRE ZONE (HILTON) SUPPLEMENTARY DEVELOPMENT
    PLAN
    Preamble
    The Minister of Housing, Urban Development and Local
    Government Relations has approved the Supplementary Development
    Plan entitled 'City of West Torrens Neighbourhood Centre Zone
    (Hilton) Supplementary Development Plan' (the Plan) and has
    referred it to the Governor.

Notice
PURSUANT to section 41 (19) of the Planning Act, 1982, I, the
    Governor with the advice and consent of the Executive Council,
    declare the plant to be an authorised Supplementary Development
    Plan and fix 27 October 1993 as the day on which it will come
    into operation.

Dated 27 October 1993.

ROMA MITCHELL Governor" Thus, on and from 27 October 1993, the subject land could only be developed in accordance with the terms of the Neighbourhood Centre Zone (Hilton), unless those provisions in the Plan were later amended. A Consolidation of the Plan
10. On 15 January 1994 the Development Act 1993 came into force. The Development Plan established pursuant to the provisions of the Planning Act continued in full force and effect: see s16 of the Statutes Repeal and Amendment (Development) Act 1993 ("the transitional provisions").
11. Pursuant to s31 of the Development Act, the Minister has an obligation to publish and distribute Development Plans. As part of that obligation, he must ensure that copies of every Development Plan and of every amendment are reasonably available to be inspected or purchased by the public: s31(2). In addition, s31(4) imposes an obligation on the Minister, within a reasonable time after an amendment to a Development Plan has been made, to ensure that a fresh consolidation is prepared to include the amendments. On 21 April 1994 the Minister published a consolidation of the Development Plan relating to the area of the Council. The consolidation included on pages 13 to 13D the provisions of the Neighbourhood Centre Zone (Hilton). For reasons which will become apparent the page numbering is not without importance.
12. On 26 May 1994 notice was published in the Gazette of a further amendment to the Development Plan for the Council area. It was called the Horwood Bagshaw Site Zoning Amendment and created a residential zone for an area south of Burbridge Road in Mile End. On 8 September 1994 the Minister published another consolidation of the Development Plan of the Council area which included the provisions of the Residential (Horwood Bagshaw) Zone on pages 12 to 12E inclusive and the Neighbourhood Centre Zone (Hilton) again on pages 13 to 13D.
13. Another amendment to the Development Plan for the City of West Torrens was gazetted on 15 September 1994. It was a consequence of an amendment called the Regional Coastal Areas Policies Amendment and came into operation on 8 September 1994.
14. By notice in the Gazette on 15 December 1994, the Minister announced that he had published another consolidation of the Development Plan relating to the Council area. The text of the consolidation is dated 15 September 1994. It is to be found in Exhibit TJM4 to the affidavit of Mr Mellor. There is no direct evidence explaining why the gazettal of the date of publication is three months later than the date shown on the consolidation. However, there is other evidence which shows that the consolidation dated 15 September 1994 had been prepared at least before 24 November 1994. It is reasonable to infer that it was prepared by 15 September 1994. That consolidation included the Neighbourhood Centre Zone (Hilton) and other amendments. This consolidation renumbered the pages of the Plan so that the provisions of the Neighbourhood Centre Zone (Hilton) were to be found on pages 22 to 25 inclusive of that consolidation. It also included maps which depicted the Neighbourhood Centre Zone at Hilton.
The Centres Amendment 15. After the Development Act had come into force on 15 January 1994, the Council proceeded with the Centres Supplementary Development Plan. The transitional provisions enabled the Council to proceed with that plan which had been initiated under the Planning Act. The plan was renamed the City of West Torrens Centres Amendment ("the Centres Amendment").
16. The procedure for amending Development Plans differs in detail but not in substance from the procedure in s41 of the Planning Act. Under the Planning Act there was one Development Plan which applied throughout the State: s40 of the Planning Act. The Development Act provides for separate Development Plans which relate to any geographical part of the State: s23(2). That part of the Development Plan which had been created in accordance with the terms of the Planning Act and applied to the area of the Council continued in force by virtue of s16(1) of the transitional provisions. It is now called the West Torrens (City) Development Plan. Amendments to Development Plans can only be effected in the manner prescribed in ss24 to 29 of the Act. Amendments might be prepared by either a Council or the Minister.
17. Section 25 prescribes the procedure to be adopted when amendments are prepared by a Council. Among other things, the Council is required by s25(3)(2a) to prepare a Plan Amendment Report. That report must contain the matters provided in s25(4). The Minister then determines whether the Plan Amendment Report should be released for public consultation. On completion of the process of public consultation, the Council must report to the Minister: s25(13) and
(14). The Minister then refers the report to the Advisory Committee which is required to advise the Minister upon matters prescribed by s25(14). Thereafter, the Minister may either approve the amendment (either as proposed or amended) or decline to approve it. If the Minister approves the amendment, he must refer it to the Governor who may by notice in the Gazette declare the amendment to be an authorised amendment and fix the day on which it will come into operation: s27(1). Thereafter, the amendment is subject to the process of parliamentary scrutiny provided in s27. The amendments the subject of this action were made in accordance with this process. There is no challenge founded on a failure to comply with the process.
18. It is convenient to note also the terms of s29 of the Act which authorised the Minister to make certain amendments without following the procedures prescribed in sub-division 2 of Part 3 of the Act. Section 29 provides:
    "(1) The Minister may, by notice in the Gazette, amend a
    Development Plan by including in the plan any plan, policy,
    standard, document or code which -
    (a) is prepared, adopted or applied under any other Act; and
    (b) falls within a class prescribed by the regulations for the
    purposes of this provision.

(2) The Minister may, by notice in the Gazette, amend a
    Development Plan -
    (a) in order to correct an error in the plan; or
    (b) in order to make a change of form (not involving a change
    of substance) in the plan.

(3) The Minister may, by notice in the Gazette, amend a
    Development Plan -
    (a) in order to include a State heritage place in the plan; or
    (b) in order to remove a place that is no longer a State
    heritage place from the plan.

(4) An amendment under this section takes effect as from a time
stated in the notice of amendment." It might be noted in passing that an error made in the consolidation of the Development Plan is not an error which requires correction pursuant to s29(2) of the Development Act. Errors of that kind are editorial in nature. They can have no legal force or effect. That is a consequence of the fact that the Development Act prescribes the manner in which amendments to the Plan must be made. If an error is made reference should be had to the terms of the amendment. Editorial errors made in the course of consolidation can, therefore, be corrected in a later consolidation without the necessity for any gazettal by the Minister of a correction pursuant to s29(2).
19. Pursuant to s25, the Council produced a Plan Amendment Report in relation to the Centres Amendment. The Plan Amendment Report explained the intent of the proposed amendment as required by s25(4)(b). It stated that six Neighbourhood Centres were proposed. Five of those Centres were addressed in the Centres Amendment. The Plan Amendment Report expressly stated (on pages 12 and 13) that the Hilton Neighbourhood Centre was one of the proposed Neighbourhood Centre Zones and had been the subject of a separate supplementary development plan. It is clear from the Plan Amendment Report that nothing in the Centres Amendment qualified the effect or operation of the Neighbourhood Centre Zone (Hilton). To the contrary, it expressly affirmed it.
20. Pursuant to s27(1) of the Development Act, the Governor by notice published in the Gazette on 24 November 1994 declared the Centres Amendment to be an authorised amendment of the Development Plan and fixed 24 November 1994 as the day on which the amendment came into operation. The terms of the notice were as follows:
    "The Development Plan is amended as follows:
    (The page numbers refer to the second publication of the
    Development Plan pursuant to Part IV of the Act.)
    Metropolitan Adelaide
    Part VI - Metropolitan Adelaide: Page 9B dated 21 January 1993
    By inserting under the heading 'Material', immediately after the
    last item 'City of West Torrens - Centres Supplementary
    Development Plan, authorized .......'

West Torrens (City)
    Part VI - West Torrens (City): Pages 12, 13 and 14 dated 19
    September 1991
    By deleting the material under the heading 'District Shopping
    Zone' on page 12 to the end of Principle 3 under the heading
    'Local Shopping Zone' on page 14 and inserting the whole of
    Attachment A.
    Part VI - West Torrens (City): Maps
    By deleting Maps WeT/3, 4 and 5 dated 15 August 1991, Maps WeT/6
    and 10 dated 15 December 1988, Maps WeT/7, 9 and 12 dated 31
    March 1982, Map WeT/8 dated 18 June 1987 and Map WeT/11 dated 21
    August 1986 and inserting the whole of Attachment B; and
    renumbering Map WeT/13 and Map WeT/14." The terms in which the Governor made the declaration of this amendment in the Gazette of 24 November 1994 was as follows:
    "DEVELOPMENT ACT, 1993 SECTION 27 (1): CITY OF WEST TORRENS
    - CENTRES PLAN AMENDMENT
    Preamble
    The Minister for Housing, Urban Development and Local
    Government Regulations has approved the amendment entitled 'City
    of West Torrens - Centres Plan Amendment' (the amendment) and
    has referred it to the Governor.

NOTICE
    PURSUANT to section 27 (1) of the Development Act, 1993, I, the

    Governor with the advice and consent of the Executive Council,
    declare the amendment to be an authorised amendment and fix 24
    November 1994 as the day on which it will come into operation.

Dated 24 November 1994.

ROMA MITCHELL Governor" This reference point was used notwithstanding the repeal of the Planning Act. It will be noted that, like the amendment which inserted the Neighbourhood Centre Zone (Hilton) into the Development Plan, the amendment used as the reference point for the incorporation of the amendments the page numbers of the second publication of the Development Plan pursuant to Part IV of the Planning Act. It was common ground that that document is the 1991 consolidation of the Plan the relevant part of which is Exhibit P3. The consolidation had been prepared in accordance with s44 of the Planning Act.
An Omission from a Consolidation 21. On 6 February 1995 the Minister published a further consolidation of the West Torrens (City) Development Plan. The text of the Development Plan relating to Neighbourhood Centre Zone (Hilton) was omitted. However, Maps WeT/9 and WeT/16 which were attached to the consolidation depicted the Neighbourhood Centre Zone (Hilton) just as it had been depicted in the amendments made on 27 October 1993. A subsequent consolidation on 6 July 1995 repeated the omission.
22. On 31 July 1995 the Council wrote to the Minister drawing attention to the error and asking that it be rectified. After writing that letter, the Council noticed further errors in the consolidation and wrote again on 17 August asking that those errors also be remedied. The Minister did not reply until 8 December 1995. In his letter he said that he had been taking steps to reinstate the material omitted from the last consolidation pursuant to the powers contained in s29(2) of the Development Act. However, he had received advice from the Crown Solicitor "that this action would not be appropriate because it would substantively change the substance of the Development Plan". He informed the Council that it was, therefore, necessary to proceed to implement the process prescribed by s25 of the Development Act to amend the Development Plan. For the reasons mentioned below, the advice to the Minister was incorrect.
The Council Proposes a Shopping Centre 23. In 1994 the Council applied to the Development Assessment Commission for provisional development plan consent to develop a neighbourhood shopping centre on the subject land. On 11 October 1994 the Commission refused the application.
24. On 13 July 1995 the Council again applied to the Development Assessment Commission to develop what it described as a "neighbourhood level retail shopping centre" on the subject land. In its application the Council referred to the Neighbourhood Centre Zone (Hilton) the subject of the Hilton SDP and to the amendment of the Development Plan on 27 October 1993. It referred also to the later amendment to include the Centres Amendment. The text of the planning assessment and report which was sent to the Development Assessment Commission in support of the development application plainly stated that the land was subject to the provisions of the Neighbourhood Centre Zone (Hilton). On 14 November 1995 the Commission refused this second application. The Council later applied to amend the proposed development but the Commission refused to accept it.
25. On 24 November 1995 the Council appealed to the Environment Resources and Development Court against the decision of the Commission made on 16 November 1995. The appeal has not yet been heard. It has been adjourned from time to time for reasons including the fact that the Council had lodged yet another application for development consent.
26. On 2 January 1996 the Council lodged with the Development Assessment Commission its third application to develop the subject land with a neighbourhood shopping centre. The proposal is almost identical to the second application as amended. On 20 February 1996 the Development Assessment Commission approved the application subject to certain conditions. This is the decision which the plaintiffs seek to quash. As already mentioned, it was common ground that, in deciding to grant provisional development plan consent, the Commission did not have regard to the provisions of the Neighbourhood Centre Zone (Hilton). It was also common ground that, if it is decided that the Commission should have had regard to the Neighbourhood Centre Zone (Hilton), the Commission has made a jurisdictional error.
The Status of the Hilton Zone 27. The Development Plan could not be amended unless the procedures prescribed by either s41 of the Planning Act or s25 of the Development Act have been implemented. Thus, the Neighbourhood Centre Zone (Hilton) remained in full force and effect unless and until it was amended or repealed by a later amendment to the Development Plan which had been made in accordance with either s41 or s25. The only amendment which in any respect touched upon the subject of Neighbourhood Centre Zones was the Centres Amendment declared on 24 November 1994. It is necessary to determine whether it amended the Neighbourhood Centre Zone (Hilton). For the reasons which follow it did not.
28. The instruments signed by the Governor on 27 October 1993 and 24 November 1994 used the same reference point for inserting the amendments, namely, nominated pages of the Second Schedule to the Development Plan pursuant to Part IV of the Planning Act. No difficulty is occasioned by the amendment made on 27 October 1993. The provisions were inserted on page 13 after Principle of Development Control 3 appearing on that page. Those provisions were to be found on pages 13 to 13D of the next consolidation. The pages remained as pages 13 to 13D in all subsequent consolidations of the Plan until the consolidation on 15 September 1994, when the pages were renumbered 22 to 25.
29. The technique of amendment by reference to the 1991 version of the Plan was again adopted on 24 November 1994, to insert the Centres Amendment into the Plan. Reference was made to pages 12, 13 and 14 of the 1991 version. All of the provisions under the headings "District Shopping Zone" and "Local Shopping Zone" in that version of the Plan were deleted. No reference was made to the amendment made on 27 October 1993. The reason for doing so is manifest. As the 1991 version of the Plan was being used as the reference point, it did not include the 1993 amendment. The consequence is that two amendments were made to pages 12, 13 and 14 of the 1991 version of the Plan each of which resulted in new provisions being inserted into the Plan. To assert that the Centres Amendment deleted the Neighbourhood Centre Zone (Hilton) is to ignore the terms of the Centres Amendment. To assert that proposition is to deny that the same reference point was used for both the amendment made on 27 October 1993 and the amendment made on 24 November 1994 and requires words to be added to the text of the 1994 amendment. This is apparent from the argument of the Solicitor-General who submitted that the 1994 amendment must be read as referring to the 1991 version of the Plan "as varied from time to time". It is not possible to add or delete words to the amendment for that is to alter the meaning and effect of those words. The terms of each amendment must be given their literal effect. The reference in the opening words of the Centres Amendment signed on 24 November 1994 to the Planning Act reinforces the conclusion. The Planning Act ceased to operate on 15 January 1994 when the Development Act came into force. The technique of referring to the 1991 version might be criticised because it did not clearly identify the order in which the new provisions are to appear. But, in the result, that is a matter of no consequence since no more was inserted in 1994 than a series of discrete provisions dealing with a District Centre Zone, five Neighbourhood Centre Zones, and a Local Centre Zone. It is a matter of simple editing to insert the neighbourhood Centre Zone (Hilton) in an appropriate place and nothing turns on where it is placed.
30. There are other reasons for this conclusion. First, had it been intended that the amendment made on 24 November 1994 should delete the provisions relating to the Neighbourhood Centre Zone (Hilton), the amendment to the Plan would have been expressed in terms which made that intention apparent. An amendment deleting the Neighbourhood Centre Zone (Hilton) is of such consequence that it would require an express provision to be effective. It would not be effected by implication. Instead of the formula adopted, the opening words of the instrument amending the Plan would have read "The Development Plan is amended as follows" and then refer to the substance of the amendments by reference to Attachment A. Alternatively, reference could have been made to the Development Plan as amended by the amendment made on 27 October 1993 or, as the Solicitor-General suggested, to the Development Plan as amended from time to time. But that was not the technique adopted. Those were not the words used. The instrument signed on 24 November 1994 expressly referred to the 1991 version of the Plan and to no other. It is reasonable to presume that this technique was adopted because, at the time the Centres Amendment was being prepared, the Hilton SDP which was to incorporate the Neighbourhood Centre Zone (Hilton) into the Plan had not been gazetted. Secondly, although the 1994 Plan inserted new maps, none of those maps deleted the Neighbourhood Centre Zone at Hilton. Instead, that zone continues to be depicted in Maps WeT/9 and WeT/16 just as it was depicted in the maps inserted in consequence of the amendment on 27 October 1993. It is absurd to retain the zone in its geographic form without the accompanying text.
31. The explanation for the omission of the Neighbourhood Centre Zone (Hilton) from later consolidations is as follows. Mr Bowden Lynsson is a project officer in the Development Policy Branch of the Department of Housing and Urban Development. He is the officer charged with the conduct of the procedures for the preparation, publication and distribution of amendments to the Development Plan. After the Development Plan had been amended on 24 November 1994, he wrote on a working copy of the amendment the pages which he believed were affected by the amendment. His note referred to the page numbering in the consolidation dated 15 September 1994. However, his note was incorrect. It failed to give effect to the manner in which the amendment had been made. His note shows that the consolidation dated 15 September had been prepared before 24 November 1994. It also explains why consolidation of the Development Plan made after the consolidation of 15 September 1994 omitted any reference to the Neighbourhood Centre Zone (Hilton). It demonstrates that an editorial mistake was made. Mr Lynsson did not correctly understand the manner in which the amendments had been made.
32. I acknowledge that, if regard is had to all amendments of maps, one may end up with more than one map for some areas. But no inconsistency between the maps has been demonstrated. It might result in there being at least two maps to deal with different geographical zones. But that is not a matter of consequence. It requires little more than editing. It is the kind of error which can be remedied by the Minister pursuant to s24(2) of the Development Act.
33. For all of these reasons, I do not accept the arguments advanced by each of the defendants that the effect of the amendment made on 24 November 1994 was to delete the provisions of the Neighbourhood Centre Zone (Hilton) because in 1993 it had been inserted between the provisions relating to the District Shopping Zone and the provisions relating to the Local Shopping Zone in the 1991 version of the Plan. The Neighbourhood Centre Zone (Hilton) has remained in full force and effect since 27 October 1993.
34. So far, I have not relied on the text of either the statement of the nature of the investigations which the Council had to prepare pursuant to s41(4) of the Planning Act for the amendment on 27 October 1993 or the Plan Amendment Report which the Council had to prepare pursuant to s25(4) of the Development Act for the amendment on 24 November 1994. The respective statutes required each document to be available for public inspection: see s41(6) of the PlanningAct and s25(11) of the Development Act. Section 25(4) requires the Plan Amendment Report to assert the extent to which the proposed amendment accords with other parts of the Development Plan and must explain the intent of the proposed amendment: see s25(4)(c) and (f). The fact that these documents must be available for public inspection indicates that the intent of s41 and s25 respectively is that the documents will inform the public of the nature and purpose of the proposed amendment which might not be apparent if reference is had only to the text of the proposed amendment. The documents have statutory force and it is, therefore, proper to refer to them for an understanding of the proposed amendment. Although the text of either the statement prepared pursuant to s41(4) or the Plan Amendment Report prepared pursuant to s25 cannot override the clear terms of the amendment, they are available to explain any uncertainty or ambiguity. Reference to both documents and, in particular, to the Plan Amendment Report prepared for the Centres Amendment puts beyond doubt the fact that the Centres Amendment was in addition to and not in substitution for the Neighbourhood Centre Zone (Hilton) which had been inserted into the Development Plan by the Hilton SDP. Although it was not necessary to refer to the Plan Amendment Report when reaching the conclusion that the Neighbourhood Centre Zone (Hilton) has remained in full force and effect since it became part of the Development Plan on 27 October 1993, reference to that document strongly supports that conclusion. This use of the Plan Amendment Report is not inconsistent with the views expressed in Meath Pty Ltd v District Council of Angaston (1981) 27 SASR 544. That decision concerned the provisions of the Planning and Development Act 1966-1967 relating to the preparation of supplementary development plans which did not include provisions such as s25(4) of the Development Act.
35. In the result, the Minister could have corrected the omission of the Neighbourhood Centre Zone (Hilton) in later consolidations. The omission of that zone was caused by an error in consolidation which is not the kind of error to which s29(2) of the Development Act refers. However, in all the circumstances, one can readily understand the Minister's intention to use s29(2).
36. For these reasons, I make the following order and declaration:
    1. There will be an order in the nature of certiorari
    quashing the decision of the Development Commission made on 20
    February 1996 granting provisional development plan consent to
    the Corporation of the City of West Torrens for the development
    prescribed as a Neighbourhood Level Retail Shopping Centre, the
    subject of the Development Application No 210/0003/96.

2. There will be a declaration that the Development Assessment
    Commission, at the time when it considers the Development
    Application No 210/0003/96, is obliged to have regard to the
    provisions of Neighbourhood Centre Zone (Hilton) the subject of
    the amendment to the Development Plan made on 27 October 1993.