Khabbaz v State Planning Commission - [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The Development Act 1993 (SA) was repealed, in stages, by the Planning, Development and Infrastructure Act 2016 between 1 April 2017 and 19 March 2021.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 merely applied the reasoning set out in a planning report commissioned by it for the purpose of its deliberations, and did not have regard to the other material placed before it and the considerations mandated by the DP;
•whether the judge erroneously characterised the task of SCAP with respect to the DP when considering whether it had failed to take into account relevant considerations; and
•whether the judge failed to address and determine Ground 10 in the terms of the application.
Held, per Bleby JA (Doyle and David JJA agreeing), dismissing the appeal:
1.The planning authority has an obligation to assess the proposed development according to law, taking into account all relevant considerations, however abstractly they may be expressed. It is also required to make an assessment as to whether the proposed development is seriously at variance with the DP. Within those boundaries, it is given broad scope to make evaluative judgments. RJK have not established that, on a proper construction of the DP, it could never be permissible to approve a 53.9 metre building in a 22 metre maximum height area.
2.RJK have not established that it was not reasonably open to SCAP to conclude that the proposed development was not seriously at variance with the DP, having regard to the construction of the DP and in particular to the breadth of language of the dispensatory provisions in Principle of Development Control (PDC) 21.
3.RJK have not established that the consent decision lacked an evident and intelligible justification when assessed against the whole of the DP.
4.Having regard to the statutory framework of the decision-making obligation of SCAP, there is no basis to infer that SCAP simply adopted the Agenda Report without having regard to the other material placed before it and the considerations mandated by the DP.
5.The Agenda Report did not demarcate the ‘locality’ for the purposes of PDC 21. However, it does not follow that SCAP did not form a view about the extent of the locality or other identified, relevant considerations. SCAP members have planning expertise. RJK did not discharge its onus to establish that SCAP did not give consideration to these matters. The judge did not otherwise mischaracterise the task of SCAP with respect to the DP.
6.The judge made clear his reasons for dismissing Ground 10 by referring back to his reasons in respect of earlier grounds.

Development Act 1993 (SA) ss 32, 33, 35, 38; Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 14; sch 3, cl 3; Planning, Development and Infrastructure Act 2016 (SA), referred to.
Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; City of Mitcham v Freckmann (1999) 74 SASR 56; Craig v South Australia (1995) 184 CLR 163; Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1; District Council of Munno Para v Remove-all Rubbish Co Pty Ltd (1985) 41 SASR 188; Dunlop v Woollahra City Council [1975] 2 NSWLR 446; Fimmell v District Court of Mount Gambier (No 2) (1988) 143 LSJS 429; Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7; Khabbaz & Anor v State Planning Commission & Ors [2022] SASC 11; Lee v Lee (2019) 266 CLR 129; Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; PJ Nash Pty Ltd v Food and Beverage Australia Ltd [2021] SASCA 86; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Rhylyn v District Council of Willunga [1994] SASC 4919; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35; Steicke v Pederick (2019) 134 SASR 114; St Ann’s College Inc v City of Adelaide [1999] SASC 479; Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557; Viscariello v Livesey [2013] SASC 99; Warren v Coombes (1979) 142 CLR 531, considered.

KHABBAZ & ANOR v STATE PLANNING COMMISSION & ORS
[2023] SASCA 10
Court of Appeal – Civil: Doyle, Bleby and David JJA

DOYLE JA: I agree with the reasons of Bleby JA, and that the appeal should be dismissed.
BLEBY JA: 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 at 83 East Terrace, Adelaide, very close to the proposed development.
The first and second respondents took no active part in the proceedings.
The State Commission Assessment Panel (‘SCAP’) was, relevantly, the delegate of the second respondent pursuant to s 30(3) of the Planning, Development and Infrastructure Act 2016 (SA) and cl 3 of sch 3 to the Planning, Development and Infrastructure (General) Regulations 2017 (SA). Acting in that capacity, on 23 January 2020 it resolved as follows with respect to the proposed development:
1.    That the proposed development is NOT seriously at variance with the policies in the Development Plan.
2.    That the State Commission Assessment Panel is satisfied that the proposal generally accords with the related Objectives and Principles of Development Control of the Adelaide (City) Development Plan Consolidated 25 July 2019 with amendments gazetted on 26 September 2019 (consolidated date 17 October 2019).
3.    To grant Development Plan Consent to Development Application 020/A053/19 by Rymill Park Apartments Pty Ltd and Rymill Park Apartments Unit Trust for demolition of the existing office building and the construction of a 16-level mixed use building at 2-6 Hutt, Adelaide, subject to the following conditions of consent.
RJK brought an application for judicial review. They sought an order in the nature of certiorari quashing the finding that the proposed development by RPA was not seriously at variance with the Adelaide (City) Development Plan (‘DP’) as it stood at the relevant time (‘variance decision’). They also sought an order in the nature of certiorari quashing the decision made by SCAP on the same occasion to grant development plan consent (‘consent decision’).
RJK 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 1993 (SA) that the proposed development was not seriously at variance with the DP.
The grounds of review were extensive. The claims that remain relevant to the present appeal were, in summary, that:
·in making each of the variance decision and the consent decision, SCAP failed to take into account mandatory relevant considerations (Ground 7);
·in making each of the variance decision and the consent decision, SCAP took into account irrelevant considerations (Ground 7A);
·for the reasons given in Grounds 7 and 7A, SCAP failed to assess the proposal against the DP as required by s 33 of the Development Act (Ground 8);
·for the reasons given in Grounds 7, 7A and 8, each of the variance decision and the consent decision was invalid or unlawful because SCAP misconstrued the DP and therefore erred in law in a way that affected its exercise of power, and constructively failed to exercise its jurisdiction (Ground 9). The numerous sub-grounds to this ground included the complaint that, as a matter of construction, the DP did not contemplate the approval of a 53.9 metre building when the maximum building height contemplated in the relevant area was 22 metres; and
·for numerous reasons, including those articulated in Grounds 7, 7A, 8 and 9, each of the variance decision and the consent decision was legally unreasonable or irrational (Ground 10).
The application for judicial review also challenged the validity of various amendments to the DP.
On 17 February 2022, the primary judge dismissed the application for review and for declarations.
RJK have appealed against those orders dismissing the applications with respect to the consent decision and the variance decision. The issues raised on appeal are:
·the proper construction of the DP in various respects (Ground 1). RJK contended that the judge erred in interpreting the DP, the consequences of which also feed into their complaint in Ground 2;
·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 (Ground 2). The focus of the complaint in this regard was the height of the proposed development, which exceeds 53 metres. RJK further contended that these decisions were not legally reasonable;
·whether SCAP merely applied the reasoning set out in a planning report commissioned by it for the purpose of its deliberations, and did not have regard to the other material placed before it and the considerations mandated by the DP (Ground 3);
·whether the judge erroneously characterised the task of SCAP with respect to the DP when considering whether it had failed to take into account relevant considerations (Ground 4); and
·whether the judge failed to address and determine Ground 10 in the terms of the application (Ground 5).
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
The Development Act was repealed, in stages, by the Planning, Development and Infrastructure Act 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, SCAP operated under the Planning, Development and Infrastructure Act.
Section 32 of the Development Act prohibited development unless the development was an ‘approved development’. Sections 33 and 35 then established the assessment process, as follows:
33—Matters against which development must be assessed
(1) A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):
(a)     the provisions of the appropriate Development Plan (development plan consent);
(b)     the provisions of the Building Rules (building rules consent);
(c)     in relation to a proposed division of land (otherwise than under the Community Titles Act 1996 or the Strata Titles Act 1988)—the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act):
(i) the allotments resulting from the division may be lawfully used for the purposes proposed by the applicant;
(ii) open space will be provided, or a payment will be made in accordance with the requirements imposed under this Act;
(iii) adequate provision is made for the creation of appropriate easements and reserves for the purposes of drainage, electricity supply, water supply and sewerage services;
(iv) the requirements of a water industry entity under the Water Industry Act 2012 identified under the regulations relating to the provision of water supply and sewerage services are satisfied;
(iva) where land is to be vested in a council or other authority—the council or authority consents to the vesting;
(v) requirements set out in regulations made for the purposes of this provision are satisfied;
(d)     in relation to a division of land under the Community Titles Act 1996 or the Strata Titles Act 1988—the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act):
(i) each lot or unit that would be created or affected by the development is appropriate for separate occupation;
(ii) any encroachment of a lot or unit over other land has been dealt with in a satisfactory manner;
(iii) where land is to be vested in a council or other authority—the council or authority consents to the vesting;
(iv) a building or item intended to establish a boundary (or part of a boundary) of a lot or lots or a unit or units is appropriate for that purpose;
(v)the division of the land in the proposed manner is, having regard to the relevant Development Plan, appropriate;
(va) the division of land under the Community Titles Act 1996 or the StrataTitles Act 1988 is appropriate having regard to the nature and extent of the common property that would be established by the relevant scheme;
(vi) open space will be provided, or a payment will be made in accordance with the requirements imposed under this Act;
(vii) the requirements of a water industry entity under the Water Industry Act 2012 identified under the regulations relating to the provision of water supply and sewerage services are satisfied;
(viia) any building situated on the land complies with the Building Rules;
(viii) requirements set out in the regulations made for the purposes of this provision are satisfied;
(e)     the requirement that any encroachment of a building over, under, across or on a public place (and not otherwise dealt with above) has been dealt with in a satisfactory manner;
(f)      such other matters as may be prescribed.
(2) An application may be made for all or any of the consents required for the approval of a proposed development, or for any one or more of those consents.
(3) A relevant authority may, in granting a development plan consent, reserve its decision on a specified matter until further assessment of the relevant development under this Act.
(4) A development will be taken to be an approved development when all relevant consents have been granted and a relevant authority has, in accordance with this Act, indicated that the development is approved.
(4a) The regulations may exclude prescribed classes of development from the operation of paragraph (a) of subsection (1) (so that an assessment against the Development Plan and a development plan consent that would otherwise be required under that paragraph need not be undertaken, sought or obtained).
(4b) If—
(a)     a development only requires an assessment under paragraph (b) of subsection (1); and
(b)     a council—
(i) is the relevant authority; and
(ii) is to make the assessment under that paragraph; and
(c)     the council determines to grant consent under that paragraph, the council, as the relevant authority, must issue the relevant development approval with the consent.
(5) The provisions of the Building Rules that are relevant to the operation of subparagraph (viia) of paragraph (d) of subsection (1) are the provisions of the Building Rules as in force at the time the application is made for consent in respect of the matters referred to in that paragraph.
…
35—Special provisions relating to assessment against Development Plan
(1)If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the relevant Development Plan and subject to any other provision made by this Act or applying under the regulations).
(1a)However, a proposed development of a class prescribed for the purposes of section 37, or required to be referred to the Commissioner of Police under section 37A, will be taken not to be complying development (and will not be subject to the operation of subsection (1)).
(1b)A development that is assessed by a relevant authority as being a minor variation from complying development may be determined by the relevant authority to be complying development (and that determination will then have effect for the purposes of this Act).
(1c)If a proposed development meets all but 1 criteria necessary for the development to be complying development, the aspect or aspects of the development that are consistent with the development being complying development must be regarded accordingly and the balance of the development will be assessed as merit development.
(1d)To avoid doubt, subsection (1c) does not prevent a relevant authority deciding not to grant development plan consent on account of its assessment of the balance of the development under that subsection.
(1e)Subsection (1c) does not apply if, despite various aspects of the development meeting any criteria for the development to be complying development, the development, from an overall perspective, falls within the category of non‑complying development.
(2)Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
(4)If a development is of a kind described as a non-complying development under the relevant Development Plan, no appeal lies against—
(a)     a refusal of consent under this Act at any stage in the process (including in the circumstances envisaged by section 39(4) and including without hearing (or further hearing) from the applicant); or
(b)     a condition attached to a consent or approval that is expressed to apply by virtue of that non-compliance under the Development Plan,
except in relation to a proposed development that has, or will, become necessary by reason of—
(c)     a change, or a proposed change, in the law regulating an existing use of land; or
(d)     an order under Division 5 or 6 of Part 6.
(4a)To avoid doubt, nothing in a preceding subsection prevents a relevant authority refusing at any time to grant a development authorisation with respect to a non‑complying development.
(5)A proposed development that does not fall into a category of development mentioned in a preceding subsection will be merit development (and any such development must be assessed on its merit taking into account the provisions of the relevant Development Plan).
(6)Subject to this Act, a relevant authority must accept that a proposed development complies with the provisions of the appropriate development plan to the extent that such compliance is certified by a private certifier.
Note—
1      See section 89 with respect to certificates given by private certifiers.
The Adelaide (City) Development Plan

A number of provisions of the DP have been included in an Appendix to this judgment. The DP provides that Zone provisions take precedence over Council Wide provisions, whilst Policy Area provisions take precedence over Zone provisions. Each Zone provides that ‘[i]n the assessment of development, the greatest weight is to be applied to satisfying the Desired Character for the Zone’. Each Policy Area provides that ‘[i]n the assessment of development, the greatest weight is to be applied to satisfying the Desired Character for the Policy Area’.
The DP imposes various maximum building heights. Concept Plan Figures CC/1 and CC/2 provide for various maximum building height areas (including an area with no maximum) in the CCZ, arranged in approximately a pyramid shape, cut in half at North Terrace. This is the ‘anticipated city form’. As identified above, the site of the proposed development is in a maximum building height area of 22 metres. The maximum building height area directly to the west, a little past Hutt Street, is 53 metres. There is then an area in the centre of the CCZ with no maximum building height limit.
It is helpful here to set out certain Principles of Development Control of the CCZ. The construction of PDC 21 is at the heart of the issues raised on appeal. It provides:
21Development should not exceed the maximum building height shown in Concept Plan Figures CC/1 and 2 unless, notwithstanding its height, it has regard to the context that forms the positive character of the locality and is sympathetic to the desired character of the Zone or Policy Area and the anticipated city form expressed in Concept Plan Figures CC/1 and 2, and
(a)     if the development incorporates the retention, conservation and reuse of a building which is a listed heritage place or an existing built form and fabric that contributes positively to the character of the local area; or
(b)     more than 15% of dwellings are affordable housing; or
(c)     only if:
(i)      at least three of the following are provided:
(1) the development provides an orderly transition up to an existing taller building or prescribed maximum building height in an adjacent Zone, Policy Area or building height area on Concept Plan Figures CC/1 and 2;
(2) high quality open space that is universally accessible and is directly connected to, and well integrated with, public realm areas of the street;
(3) high quality, safe and secure, universally accessible pedestrian linkages that connect through the development site;
(4) no on site car parking is provided;
(5) active uses are located on at least 75% of the public street frontages of the building, with any above ground car parking located behind;
(6) a range of dwelling types that includes at least 10% of 3+ bedroom apartments;
(7) the building is adjacent to the Park Lands;
(8) the impact on adjacent properties is no greater than a building of the maximum height on Concept Plan Figures CC/1 and 2 in relation to sunlight access and overlooking; and
(ii)     at least three of the following sustainable design measures are provided:
(1) a communal useable garden integrated with the design of the building that covers the majority of a rooftop area supported by services that ensure ongoing maintenance;
(2) living landscaped vertical surfaces of at least 50 square metres supported by services that ensure ongoing maintenance;
(3) passive heating and cooling design elements including solar shading integrated into the building;
(4) higher amenity through provision of private open space in excess of minimum requirements by 25% for at least 50% of dwellings;
(5) solar photovoltaic cells on the majority of the available roof area, supported by services that ensure ongoing maintenance.
The following principles of development control for the CCZ are also particularly relevant:
16Development that exceeds the maximum building height shown in Concept Plan Figures CC/1 and 2,and meets the relevant quantitative provisions should demonstrate a significantly higher standard of design outcome in relation to qualitative policy provisions including site configuration that acknowledges and responds to the desired future character of an area but that also responds to adjacent conditions (including any special qualities of a locality), pedestrian and cyclist amenity, activation, sustainability, and public realm and streetscape contribution.
…
22Development should have optimal height and floor space yields to take advantage of the premium City location and should have a building height no less than half the maximum shown on Concept Plan Figures CC/1 and 2, or 28 metres in the Central Business Policy Area, except where one or more of the following applies:
(a)     a lower building height is necessary to achieve compliance with the Commonwealth Airports (Protection of Airspace) Regulations;
(b)     the site is adjacent to the City Living Zone or the Adelaide Historic (Conservation) Zone and a lesser building height is required to manage the interface with low-rise residential development;
(c)     the site is adjacent to a heritage place, or includes a heritage place;
(d)     the development includes the construction of a building in the same, or substantially the same, position as a building which was demolished, as a result of significant damage caused by an event, within the previous 3 years where the new building has the same, or substantially the same, layout and external appearance as the previous building.
23Development should manage the interface with the City Living Zone or the Adelaide Historic (Conservation) Zone in relation to building height, overshadowing, massing, building proportions and traffic impacts and should avoid land uses, or intensity of land uses, that adversely affect residential amenity.
…
25Parts of a development that exceed the prescribed maximum building height shown on Concept Plan Figures CC/1 and 2 that are directly adjacent to the City Living, Main Street (Adelaide) or the Adelaide Historic (Conservation) Zone boundaries should be designed to minimise visual impacts on sensitive uses in the adjoining zones and to maintain the established or desired future character of the area. This may be achieved through a number of techniques such as additional setback, avoiding tall sheer walls, centrally locating taller elements, providing variation of light and shadow through articulation to provide a sense of depth and create visual interest, and the like.
The material before SCAP
The Agenda Report
A report was prepared by a consultant planner to assist SCAP (‘Agenda Report’). This report set out the features of the proposed development, summarised above. The executive summary provided as follows:
Located within the Capital City Zone, the predominantly residential building responds to the high-scale desired character envisaged in the Zone with high street walls that frame the streets, together with an interesting pedestrian environment and human scale at ground floor levels. Non-residential uses are included at the ground floor level and mezzanine levels around the prominent corner of Hutt Street and East Terrace consistent with the intent of the Zone.
The proposed combination of land uses are explicitly envisaged within the Zone and the building achieves a high standard of external appearance which is also specifically contemplated in the Zone. The siting of the building along with the inclusion of a podium are consistent with the intent of the Zone.
The site of the proposed development is immediately adjacent to the City Living Zone to the east of the subject land and the Park Lands Zone to the north.
A 22 metre height limit is identified for the subject land. Development should not exceed this height unless, notwithstanding its height, it has regard to the context that forms the positive character of the locality and is sympathetic to the desired character of the Zone and where specified criteria are satisfied.
Accordingly, a consideration of the proposed building height of 53.9 metres and its interface with the surrounding context is a key planning consideration for this proposal.
The proposed development is considered to satisfy the criteria for exceeding the specified maximum height under the Capital City Zone.
Category 2 representations express concern about the proposed building height, as well as about potential traffic congestion and overlooking from the proposed development into existing building to the east. While these concerns are recognised, the design measures and supporting materials provided with the application demonstrate that appropriate measures have been or will be taken to address and minimise these impacts to meet the Development Plan guidelines.
The proposed development also successfully addresses other key planning and technical issues. It is therefore considered appropriate for Development Plan Consent to be granted subject to planning conditions recommended in this report.
The Agenda Report noted that a pre-lodgement agreement had been entered between RPA and the South Australian Government Architect. The latter provided comments expressing her support for the proposed development, including the following with respect to the height of the development:
I consider the site to be prominent with landmark characteristics afforded by its Park Lands setting and elevated position. As such, in principle I support an approach for a building that exceeds the 22 metre height limit envisaged by the Development Plan. Given development of this scale will become a significant backdrop to the Park Lands and will be viewed from all angles, my support for the height from a design perspective is contingent on a continued commitment and delivery of the high quality design outcome presented, particularly in relation to the refined architectural expression, choice materiality, apartment amenity, sustainability initiatives and servicing strategy as well as public realm contribution.
In relation to Cleo Lane, the Government Architect said:
Cleo Lane accommodates vehicle access to above ground car parking, waste collection, a bin store and the site’s transformer. Given the shared nature of Cleo Lane, I welcome the project team’s intent to engage with adjacent land owners to achieve a mutually agreeable outcome for the shared space. In my view, the consideration given to the amenity of the laneway and transition between the private laneway and public road will reinforce the development’s sense of place and contextual relationship.
The Government Architect suggested that SCAP consider imposing conditions or reserving matters in relation to collaboration with the Adelaide City Council in respect of paving treatments, final samples of selected materials, refinement of the penthouse roof form to assist in mitigating the height of the development and further consideration of the layout of the solar panels with a view to reducing their visual impact on the roofline.
The Agenda Report noted that vehicles would access the upper-level car parking from East Terrace by ‘the existing left-in, left-out movement into Cleo Lane’ whilst the basement car parks would be accessed from Hutt Street. The Agenda Report further indicated ‘the setback of the proposed building to Cleo Lane is proposed to allow for an increase to the width of this private road to accommodate all traffic movements and will allow two-way traffic movements along the northern 20 metres of Cleo Lane’.
The Agenda Report also included information under the sub-heading ‘locality’, including a zoning map, which covered the areas referred to. The map identified those areas that were in the CLZ and the CCZ. Within the locality, the Agenda Report indicated that East Terrace and Hutt Street served as important thoroughfares. The report considered features of the Park Lands in the area adjacent to East Terrace and further north.
The Agenda Report also provided a description of the buildings to the east, south and west of the subject land, as summarised above. It made reference to the ‘wider locality, taking in areas either side of Hutt Street’ by noting multiple buildings ranging from nine storeys to 25 storeys at various locations in the eastern end of Flinders and Pirie Streets and in Hutt Street and East Terrace.
The Agenda Report expressed the view that, when taken with the existing development, the completion of some or all of the proposed development in the wider locality will substantially change the nature of the built form in the area between the core Adelaide CBD and the east Park Lands. It said:
In particular, the skyline looking towards the Adelaide CBD from the east park lands will feature, in the foreground to the towers of the CBD, buildings of a similar or greater height than the proposed development, extending northwards and southwards along Hutt Street and its environs.
Similarly, looking southwards from Rymill Park, there will be a line of buildings between the taller towers of the CBD and Hutt Street of a similar height to the proposed development, with a continuing graduation downwards in height towards the east to the lower 8 storey building at 248-253 Hutt Street.
The City of Adelaide neither supported nor opposed the proposed development. Following the public notification process, the following representations were raised, as summarised by the primary judge:[3]
[3] [2022] SASC 11 at [195].
·the potential for construction of the proposed development to cause disruption to staff and clients using nearby premises;
·use of the term “Rymill” and infringement on trademarks;
·the height of the proposed development exceeding the height prescribed for the subject land under the Development Plan, and being out of scale and character with its surrounds;
·the height of the development results in the proposal being seriously at variance;
·noise and odour impacts from the proposed ground‑floor restaurant;
·the scale and intensity of the development would reduce the level of residential amenity enjoyed by that land and by “all dwellings within the adjoining City Living Zone”, including through noise and other impacts of traffic, waste collection, operation of the restaurant and plant and equipment.
·overlooking from the proposed development into some parts of adjoining land, including in particular into the rear courtyard, bedroom and living room windows;
·solar shading and overlooking of bedrooms on the western side of the subject land;
·generally, shadowing impacts from the proposed development including the loss of sunlight to potential future solar cell arrays on nearby properties;
·suitability of vehicle access to the proposed development from East Terrace via Cleo Lane and the capacity of these existing roads to meet the additional demand, particularly at peak periods and during special events, including the suggestion that vehicle access to the proposed development should be from Hutt Street;
·traffic impacts of waste disposal truck movements in Cleo Lane;
·design and suitability of the internal parking and circulation paths;
·additional demand for on‑street car parking caused by the proposed development, and the potential for the development to exacerbate traffic, congestion and parking problems in the area;
·potential structural impacts of the construction of the proposed development on nearby buildings, and the need to ensure ongoing access from Cleo Lane to adjoining residences throughout the construction period;
·potential for additional wind impacts;
·reduction in property values; and
·potential to establish a precedent.
The Agenda Report summarised RPA’s responses to the representations as follows:[4]
[4] [2022] SASC 11 at [196].
·The contentions about precedent and impact on value are unsubstantiated and in any event are irrelevant to a planning assessment.
·Relevant construction impacts to be dealt with by Construction Environment Management Plan.
·Trade marks are not relevant to the assessment of the application.
·The Signalised ramp system satisfies AS/NZS 2890.1:2004.
·The design calculations (using conservative estimates) indicate that there is a 1.9% chance that a vehicle would be required to wait for another vehicle at any given time.
·No queuing on Cleo Lane will intrude into private land.
·Sight lines are acceptable.
·Ramp profile and turn paths are suitable.
·There is adequate loading area for café deliveries.
·Safe access and egress for service and waste vehicles is provided.
·The applicant proposes to offer a right of way to the other land owners who enjoy rights over the lane. If those other land owners decline to accept the grant of a right of way, that is a matter for them. The physical layout of the widened lane will mean that even regardless of the rights of way, access over the wider area will in a practical sense be readily available.
·Council Wide PDC 167 and Capital City Zone PDC 16 and 21 all expressly provide a policy framework for buildings taller than the Concept Plan guideline. The application documents detail how the proposal satisfies the terms of PDC 21 in particular.
·The application is consistent with its context.
·The development conforms to the desired character and high standard of design.
·A previous development plan consent issued for the site has been cancelled. Another application has been lodged but is not presently being pursued. Neither are in any way relevant to the assessment of this current application which must be judged on its own merits.
·Access to sunlight maintained.
·Appropriate privacy treatments are proposed.
·Appropriate waste management measures are proposed.
·Given that the Development Plan expressly provides (eg Zone PDC 16 and 21) for the height guideline to be amended to achieve a range of other design aspirations, this proposal cannot in the circumstances be “seriously at variance” with that very policy regime.
Against those submissions, the Agenda Report first turned to the CCZ. It noted that the Desired Character for the CCZ was ‘as the economic and cultural focus of the State, with increased population complementing the opportunities and experiences provided in the city and increasing its vibrancy’. It introduced the topic of the relationship between the height of a building and the other imperatives of the DP in the following way:
A 22 metre maximum building height is identified for the subject land. Development should not exceed the maximum building height unless it has regard to the context that supports the positive character of the locality, is sympathetic to the desired character of the Zone and satisfies additional criteria. Section 8.4 of this report outlines further discussion regarding the height of the proposed development.
On the specific topic of building height, the Agenda Report identified that Council Wide Objective 46 sought to reinforce the grid pattern of the city’s streets through measures that included high rise development framing the Park Lands. It observed that the Desired Character of the CCZ included high-scale development with high street walls that frame the streets.
The Agenda Report set out PDC 21 in full, and then noted the effect of PDC 16, set out above. It further observed that Council Wide PDC 191 ‘envisages new development on major corner sites should define and reinforce the townscape importance of such sites, noting that one design technique contemplates greater building height at corners’.

The Agenda Report included a detailed assessment against the PDC 21 criteria. Its essential conclusions on this assessment were that:
·the proposed development would complement its context, having regard to adjacent built from and the character of the locality;
·the proposed development would complement the anticipated city form in Concept Plan Figure CC/2. It explained this conclusion with respect to the maximum 22 metre building height as follows:
While the site is within a portion of the Capital City Zone with a maximum building height of 22 metres, it is within 70 metres of portions of the Capital City Zone where a 53 metre maximum prescribed height applies (which commences one allotment to the west opposite Hutt Street). Within this locality, approved and ‘in-construction’ apartment and mixed-use buildings are establishing a character akin with areas of taller built form elsewhere in the Adelaide CBD core (where no building height limitation exists). Similarly, current and approved development along Hutt Street and to East Terrace will extend that character closer to the subject land.
The height of proposed development, although taller than the maximum building height of 22 metres for the subject site, is consistent and complementary to the heights contemplated some 70 metres west, the backdrop against which the development will be viewed from the approach into the city.
·the proposed development provided at least three of the features specified in PDC 21(c)(i); and
·the proposed development provided at least three of the features specified in PDC 21(c)(ii).
The Agenda Report then concluded that the criteria specified in PDC 21 were satisfied and that, accordingly, the DP provided support for a building exceeding the 22-metre maximum building height. It then made the observation (which, in its effect, is contentious on this appeal), that:
The Development Plan provides no further guidance as to what additional height may be supported.
The Agenda Report had specific regard to the provisions of PDC 25 where a development exceeds the prescribed maximum building height and addressed the extent to which the proposed development responded to them, having particular regard to the effective setback provided by Cleo Lane. It further noted the support of the Government Architect of the proposed development exceeding the 22-metre building height limit. On the topic of building height, it concluded:
It is considered that the Development Plan explicitly contemplates buildings that will exceed the stated maximum building height under certain conditions. These conditions are outlined in Zone PDC 21 and have been recently amended as part of the Ministerial DPA on interim operation. Assessed against PDC 21, the proposed development satisfies the relevant requirements to qualify to exceed maximum building height shown in Concept Plan Figures CC/1 and 2. In addition to meeting this provision, the applicant also has a pre-lodgement agreement from the Government Architect who has considered the issue of height and scale independently from the criteria in PDC 21 and provided support for the building as proposed.
The Agenda Report concluded as follows:
With the exception of building height, the proposed development generally complies (or can comply by way of condition) with the relevant Development Plan provisions including land use, setbacks from site boundaries, micro‑climatic (wind) impacts, the incorporation of sustainable design features, waste management and car and bicycle parking and internal amenity of the apartments.
The height of the proposed building exceeds the 22 metre maximum building height expressed in Concept Plan Figure CC/2, however the Zone specifically contemplates buildings can exceed the maximum building height shown in Concept Plan Figures CC/1 and 2 where the building has regard to the context that forms the positive character of the locality and is sympathetic to the desired character of the Zone or Policy Area and the anticipated city form expressed in Concept Plan Figures CC/1 and 2, and satisfies a minimum number of qualifications and sustainable design measures. The proposal meets this requirement.
Notwithstanding that the proposal meets these requirements, the Development Plan offers no further specific guidance on what building height could be achieved.
The height of the building does not give rise to a referral requirement in respect of Adelaide Airport operations.
It is considered the building height of the proposed new development is justified by its design and its relationship to its locality. In Hutt Street, and the wider locality, a number of buildings already completed or approved for construction are of a similar height, or taller than, the proposed new building. As these new buildings are completed, a visual and built form link with emerge between the Adelaide CBD core and areas around Hutt Street and East Terrace. The proposed development, although exceeding the maximum prescribed 22 metre height for the subject site, will be consistent with and complementary of the emerging and anticipated built form in this area.
The proposed development is considered to achieve a high design standard, as demonstrated by the inclusion of the required number of design and sustainability measures and as acknowledged by the Pre‑Lodgement Agreement entered into by the applicant and the Government Architect in respect of the proposed development.
On balance, the proposed development will make a positive contribution to the desired character of the Capital City Zone. It will substantially increase the population of this precinct and as a result its daytime and night‑time vibrancy. It will increase the activation of this key interface between the city and the park lands and form a defined edge to mark that interface. It will provide significant opportunities for active and passive surveillance of the public realm during day and night‑time hours and will enhance public safety.
It is concluded that the proposed development warrants Development Plan Consent, subject to the conditions set out in the following section.
It then made recommendations in the exact terms that were adopted by SCAP as resolutions, as set out at the beginning of these reasons.
The Future Urban Report
The application for development plan consent was supported by a report prepared by a consultant planner, Future Urban (‘Future Urban Report’). The primary judge summarised the matters addressed in that report. It is sufficient to adopt the primary judge’s summary of the Future Urban Report’s approach to the height of the proposed development in the context of the relevant PDCs and the interface with the CLZ, supportive of the proposed development as this report was:[5]
[5] [2022] SASC 11 at [216]-[220].
After noting that the subject land was subject to a height guideline of 22 metres and setting out in full the terms of PDC 21, the Future Urban report indicated that the DP envisaged that the structure of the city will be reinforced by the CCZ being the focus of high-rise development tin [sic] the City. The report asserted that, notwithstanding its height, the proposal had regard to the context “that forms the positive character of the locality and is sympathetic to the desired character” for 13 listed reasons. Several of those reasons relate to the contemporary and high-quality of the design, innovative environmental initiatives and the like.
Of more direct relevance to the present proceedings were the observations that the proposed building was to be lower in height than existing buildings and those under construction to its west, with there being potential for taller buildings to be developed to the west and north-west as anticipated by the DP. It was also suggested that the increase in height above 22 metres will not have adverse effects on adjoining dwellings or the overall city form in the locality as the design, appearance and siting of the building will be commensurate with its setting and surrounding development.
It was further suggested in the Future Urban report that the height of the podium to be included in the proposed building would complement adjacent buildings and particularly respect the adjacent CLZ. It was additionally suggested that the overall height of the building will complement the anticipated city form to the west and that its location on a key corner site will enable the overall height and form of the building to reinforce the grid layout and the distinctive urban character of the locality. Its height and scale was said to reflect and respond to the role of the streets it fronts. The report suggested that the proposed building would satisfy the criteria under PDC 21. The report also noted that the express terms of PDC 21 were consistent with other Council Wide policies dealing with building form and height. In that respect, reference was made to the desired character for the CCZ, Council Wide objectives 46 and 48 and Council Wide PDC 169 and PDC 191.
The Future Urban report also addressed the interface with the CLZ. The author suggested that PDC 23 and 25 were the key provisions. The report contended that the proposal sought to manage its interface with the CLZ by a number of measures. It was suggested that the scale and form of the buildings adjoining Cleo Lane was such that they would have limited views to the proposed building from the open spaces to their rear. There would not be unreasonable shadowing of properties within the CLZ and overlooking would be mitigated by the orientation and design of the floor plans. It was also suggested that access and egress for properties adjoining Cleo Lane would actually be improved. It was also suggested that the management of the interface between the proposed building and the CLZ would ensure that the proposal does not detract from the amenity currently enjoyed by residents of the CLZ in the locality.
The author of the Future Urban report summarised the contentions concerning the CLZ interface as follows:
Whilst others may argue that the height of the development may not respect the low to medium scale context of the City Living Zone we consider in the particular circumstances of this proposal, the location of the site at the northern edge of the interface; the adjacency to the Park Lands; the fact that the site is only one of three remaining development sites in the Capital City Zone with a northern orientation to the Park Lands; the prominent corner site characteristics of the land; and, the improvement to the conditions in Cleo Lane for other users, accords with the overall intent and purpose of the Development Plan.
In our opinion, the proposed building height and scale would not be appropriate further south adjacent to the core of the City Living Zone.
The MasterPlan Report
RJK procured a report dated 31 October 2019 from Mr Graham Burns of MasterPlan SA Pty Ltd (‘MasterPlan Report’). This report was provided to SCAP with the Agenda Report. SCAP were required to have regard to this report, as RJK were Category 2 objectors.
The MasterPlan Report took issue with a number of aspects of the proposed development. It considered the most important aspect to be the height of the building, noting that the height of 53.9 metres was approximately two-and-a-half times the maximum building height for the area. It emphasised the importance of this with particular reference to the ‘context that forms the positive character of the locality’ as contemplated by PDC 21:
The provisions of the City Living Zone and the associated East Terrace Policy Area 29 are highly relevant to a review of acceptable building height, because the Capital City Zone and East Terrace Policy Area is adjacent to the site. It logically follows that development in the adjacent City Living Zone contributes to the context of the site.
To this end, the report emphasised the Desired Character for the CCZ, which requires:
New development [to] achieve high design quality by being:
(a) Contextual – so that it responds to its surroundings, recognises and carefully considers the adjacent built form, and positively contributes to the character of the immediate area.
The report opined that on account of its height, the proposed development did not respond to the building’s context within the meaning of CCZ Objective 5, nor did it achieve ‘a cohesive scale of development that responds to its context’, within the meaning of CCZ Objective 7. Having reviewed the maximum building heights for the surrounding areas, it concluded:
In context therefore, the proposal exceeds the maximum building height specified for all surrounding properties, namely:
·22 metres for properties to the south and west in the Capital City Zone;
·14 metres or four storeys for properties to the east in the City Living Zone; and
·minimal building height in the Park Lands Zone to the north where no development in the form of multi-storey buildings is envisaged.
The report also expressed the view that the proposed development did not satisfy at least three of the features specified in PDC 21(c)(i). The fundamental conclusion of the report was:
We remain of the opinion that the proposal is seriously at variance with the Development Plan, being significantly higher than the maximum building height prescribed for this part of the Capital City Zone. The proposal also makes no attempt to address the transition requirements of the Development Plan arising from the development site being adjacent to a different zone.
Other material provided to SCAP
As noted above, SCAP received written representations from three persons or couples who were entitled to make a Category 2 objection. They referred to a breach of the height guidelines, congestion, noise and disruption in Cleo Lane, shading and overlooking, and noise and smells.
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).
Debelle J went on to note that the ultimate judgment against a Development Plan has sometimes been described as an ‘unfettered discretion’.[8] He observed, referring to Town of Walkerville v Adelaide Clinic Holdings Pty Ltd,[9] that the discretion is unfettered only in the sense that there is nothing in a Plan which is mandatory. Rather:[10]
It is preferable to describe the exercise of this unfettered discretion as the exercise of a planning judgment within the ambit, scope and purpose of the Development Act, the Development Regulations and the Development Plan.
[8] City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
[9] (1985) 38 SASR 161 at 173 (Jacobs J).
[10] City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
RJK emphasised, in addition, the statement by Jacobs J in Fimmell v District Court of Mount Gambier (No 2), that:[11]
… one would normally expect a planning authority, having proper regard to the Plan, to respect what it says unless, as a matter of planning judgment, there is some good reason to justify a different conclusion.
[11] (1988) 143 LSJS 429 at 434.
That statement was made in the context of rejecting a proposition that a principle in a Development Plan, expressed in mandatory terms, was indeed mandatory. Section 47(9) of the then Planning Act required the decision-maker ‘to have regard to the provisions of the Development Plan’. Similarly, s 33(1) of the Development Act provided that a development was an approved development only if, among other things, a relevant authority had assessed the development against the provisions of the appropriate Development Plan.
In any event, this statement goes no further than to identify the obvious, that it is a jurisdictional requirement that the decision-maker must assess the proposal against the relevant provisions of the applicable Development Plan.
Further, whether a decision-maker has interpreted a principle in a Development Plan correctly is a question of law.[12] For a body such as SCAP to interpret a principle wrongly would be an error of law going to its jurisdiction to grant consent, as it would have failed to assess the proposal against the Development Plan properly construed. Having said that, care should be taken before concluding that a particular construction of a provision in a Development Plan was not open:[13]
The provisions of the Development Plan are not to be construed like a statute. A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. The plan must be considered as a whole for the purposes of determining its purpose and intent.
[12] St Ann’s College Inc v City of Adelaide [1999] SASC 479 at [9] (Debelle J, Duggan and Williams JJ agreeing).
[13] St Ann’s College Inc v City of Adelaide [1999] SASC 479 at [16] (Debelle J, Duggan and Williams JJ agreeing).