Khabbaz v State Planning Commission

Case [2023] SASCA 10

Supreme Court of South Australia

(Court of Appeal: Civil)

KHABBAZ & ANOR v STATE PLANNING COMMISSION & ORS

[2023] SASCA 10

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

16 February 2023

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - INTERPRETATION AND CONSTRUCTION

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - VALIDITY

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - RESIDENTIAL

Appeal against the decision of a judge of the Supreme Court.

The third and fourth respondents (collectively, ‘RPA’) are developers of a proposed apartment building at 2-6 Hutt Street, Adelaide, being at the south-eastern corner of the intersection of Hutt Street and East Terrace.

The appellants (collectively, ‘RJK’) occupy and own a house on East Terrace, Adelaide, very close to the proposed development.

The first and second respondents took no active part in the proceedings.

The proposed building will be 53.9 metres. It will be located within the Capital City Zone (‘CCZ’) established by the Adelaide (City) Development Plan (‘DP’), in an area with a maximum building height of 22 metres.

The Development Act 1993 (SA) was repealed, in stages, by the Planning, Development and Infrastructure Act 2016 between 1 April 2017 and 19 March 2021. It governed the assessment of the proposed development, in that the decisions the subject of the application for judicial review proceedings were made under that Act. At the same time, the State Commission Assessment Panel (‘SCAP’) operated under the Planning, Development and Infrastructure Act.

On 23 January 2020, SCAP, as delegate of the second respondent, resolved that the proposed development by RPA was not seriously at variance with the DP as it stood at the relevant time within the meaning of s 35(2) of the Development Act (‘variance decision’). It further resolved to grant development plan consent (‘consent decision’).

RJK brought an application for judicial review, seeking orders in the nature of certiorari quashing the variance decision and the consent decision. They further sought declarations to the effect that the consent decision was unlawful and invalid, and that no reasonable relevant authority, acting reasonably, could form an opinion under s 35(2) of the Development Act that the proposed development was not seriously at variance with the DP.

On 17 February 2022, the primary judge dismissed the application for review and for declarations. The issues raised on appeal concern:

•the proper construction of the DP in various respects;

•whether, on the proper construction of the DP as it applied to the proposed development, it was open to SCAP to assess that the proposed development was not seriously at variance with the DP and to grant development plan consent for the proposed development. The focus of the complaint in this regard was the height of the proposed development. RJK further contended that these decisions were not legally reasonable;

•whether SCAP…

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Khabbaz v State Planning Commission [2023] SASCA 10
Case
[2023] SASCA 10
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by way of rehearing concerning the validity of decisions made by the South Australian Commission Assessment Panel (SCAP) regarding a proposed development. The appellant, RJK, challenged the primary judge's finding that SCAP's decisions were valid. The proposed development involved a 16-level building, 53.9 metres in height, to be constructed on a 569 square metre allotment within the Capital City Zone, adjacent to the Park Lands Zone and across a narrow lane from the City Living Zone.

The central legal issues before the court were the proper construction of the Development Plan (DP) and whether SCAP had erred in fact or law in its assessment of the development proposal. Specifically, the court was required to determine the extent to which SCAP, as a planning authority, was constrained by the DP when assessing a development application, and how it should approach inconsistencies within the DP.

The court affirmed the principles governing the assessment of development proposals by bodies like SCAP. It was held that such authorities are not rigidly bound by the DP in the same way as a standard administrative decision-maker. Instead, they exercise a broad discretion within the policy parameters of the DP, while still being required to have proper regard to its relevant provisions. The court emphasised that the task involves not only assessing the proposal against specific provisions but also distilling the overall intent and purpose of the zone, considering stated objectives and principles of development control. The ultimate criterion is whether the development is conducive to the desired character and amenity of the zone, and planning authorities may need to resolve inconsistencies within the DP by reference to these broader considerations.

Orders

Orders of the court

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Background

Background to the litigation

This appeal is by way of rehearing. The Court is to conduct a real review of the evidence and of the primary judge’s reasons for judgment to determine whether he erred in fact or law.[1] As RJK submitted, there being no oral evidence, this Court is in as good a position as the primary judge to decide on the proper inferences to be drawn from the facts.[2] As a matter of practicality, the determination of this appeal will depend on the correctness of the substantive arguments made before the primary judge and necessarily reiterated on appeal. Principal among these are RJK’s arguments as to the proper construction of the DP.Background[1] Lee v Lee (2019) 266 CLR 129 at [55].[2] Lee v Lee (2019) 266 CLR 129 at [55]; Warren v Coombes (1979) 142 CLR 531 at 551.The proposed development The proposed development is to be constructed boundary-to-boundary at almost all levels (and out over the footpath at some levels) upon an allotment of approximately 569 square metres. It will comprise 16 levels, with a two-level basement car park and 14 floors above ground. The height of the building will be 53.9 metres. The proposed development site is located within the Capital City Zone (‘CCZ’) (no policy area) established by the DP. The Park Lands Zone (Rundle and Rymill Parks Policy Area 20) is immediately to the north. The site is located at the north-east corner of an area of the CCZ that has a maximum building height of 22 metres. This section of the CCZ extends west across Hutt Street for a short distance, and south to a point just north of Carrington Street. The City Living Zone (‘CLZ’) (East Terrace Policy Area 29) is immediately to the east of the site, across a private roadway, Cleo Lane, which is three metres wide. The nearest neighbours of the site are buildings of two to four storeys in height (to the east across Cleo Lane, immediately south and to the west across Hutt Street) and, to the north, the low-lying environment of the Adelaide Park Lands. Other buildings in the close vicinity on the western side of Hutt Street are up to five storeys in height. The proposed development will include 38 apartments ranging from 70 square metres to 445 square metres in size. It will include:·a restaurant at ground level, facing Hutt Street and East Terrace; ·a communal dining, meeting, lounge, library and conference area on the mezzanine between the ground floor and level one; ·a further two levels of parking between the mezzanine and level three; ·a storage enclosure designed to accommodate up to 46 bicycles on level two; and ·a small communal ‘roof top garden’ on level three. The land owned and occupied by RJK is on the eastern side of Cleo Lane. RJK and the occupiers of neighbouring properties located on East Terrace use Cleo Lane for vehicular access to the rear of their land. As identified above, the proposed building will immediately adjoin the western side of Cleo Lane. One of the two exits from the car park of the proposed building will open onto Cleo Lane. Waste collection will use Cleo Lane. RJK contended at trial that this would cause issues with traffic in Cleo Lane, particularly at peak periods. The Development Act

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Agenda Report included a copy of the pre-lodgement agreement between an agent for RPA and the Government Architect referred to in the Agenda Report, as well as the correspondence from the City of Adelaide addressing various technical issues. SCAP was also provided with detailed submissions from RJK’s and RPA’s solicitors. The decision of the primary judge The primary judge found that the variance decision and the consent decision were each validly made by SCAP. He commenced with a consideration of the principles that govern the assessment of a development proposal by a body such as SCAP:[6]The authorities make it abundantly clear that when determining an application for the grant of provisional development plan consent a body such as SCAP is not constrained by the development plan in the same manner, or to the same extent, as is generally the case with an administrative decision-maker deciding an application for some form of approval under a statutory provision. As the authorities to which I am about to refer indicate, a planning authority exercises a broad discretion within the policy parameters set by the development plan but in doing so must have proper regard to the relevant provisions of the plan. [6] [2022] SASC 11 at [371]. It is not necessary to trace the primary judge’s treatment of the authorities. The principles are well-understood. In City of Mitcham v Freckmann, Debelle J said:[7]Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan. That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provision in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely that it might merit planning approval. In addition, as was noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may be occasions when the planning authority must resolve inconsistencies within the Development Plan. Those inconsistencies will often be resolved by considering the desired character and amenity of the zone.(Emphasis added)[7] (1999) 74 SASR 56 at [18] (Debelle J, Doyle CJ and Duggan J agreeing).

Ratio Decidendi

Legal Principle Established

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