Khabbaz v State Planning Commission

Supreme Court of South Australia
(Civil: Judicial Review)
KHABBAZ & ANOR v STATE PLANNING COMMISSION & ORS
[2022] SASC 11
Judgment of the Honourable Justice Parker
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - INTERPRETATION AND CONSTRUCTION
ADMINISTRATIVE LAW - JUDICIAL REVIEW
ADMINISTRATIVE LAW - REASONS FOR ADMINISTRATIVE DECISIONS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH
This is a judicial review application relating to various planning decisions.
The developers, the third and fourth respondents, are seeking to develop an apartment complex at 2-6 Hutt Street, Adelaide. The first and second applicants, own and occupy property at 83 East Terrace, Adelaide, very close to the proposed development and are in opposition to it.
The matter has a long history. Prior to 2018, the third and fourth respondents lodged an application for planning approval at the site under the Adelaide (City) Development Plan (DP) (as it stood at that time). They were ultimately granted development consent by State Commission Assessment Panel (SCAP) as a delegate of the State Planning Commission (the first respondent). This decision was opposed by the applicants and is the subject to separate judicial review proceedings lodged in 2018, which have been adjourned pending the outcome of the current proceedings.
In the intervening period, in 2019, the Minister for Planning (the second respondent) approved and brought into effect certain amendments to the DP (the 2019 DPA Decision). In that context, a fresh development application was lodged by the third and fourth respondents to build a 16-storey apartment building at the site. The proposed development is 53.9 metres in height which greatly exceeds the maximum height for that area under the DP (as amended by the 2019 DPA Decision). On 23 January 2020, SCAP determined that the proposed development was not seriously at variance with the DP and on the same date, granted development plan consent.
Seeking an extension of time in which to lodge the application for judicial review with the Court, the applicants have sought review of both decisions by SCAP on 23 January 2020 and, in addition to various declarations, seek orders in the nature of certiorari to quash those findings. The applicants have also sought judicial review of the 2019 DPA decision by the Minister, seeking orders in the nature of certiorari to quash that decision, as well as an interim decision dated 25 July 2019 bringing those amendments into early effect (the Interim Effect decision).
The first and second respondents did not actively participate in the proceedings as they gave an undertaking to abide the event. Accordingly, the Court heard submissions from the applicants and the third and fourth respondents who were each represented by different senior counsel.
In the application for judicial review, there were 11 lengthy grounds enunciated with numerous sub grounds which can be summarised as follows:
•       SCAP’s decisions of 23 January 2020 were invalid or unlawful because:
o       SCAP failed to take into account mandatory relevant considerations;
o       SCAP took into account irrelevant considerations;
o       SCAP assessed the development proposal against the incorrect DP and/or failed to properly assess the proposal against the correct DP;
o       SCAP misconstrued the DP and therefore constructively failed to exercise its jurisdiction; and
o       The decisions were legally unreasonable.
•The Minister’s decisions (being the 2019 DPA Decision and the Interim Effects Decision) were invalid or unlawful because:
o       The Minister acted ultra vires and/or constructively failed to exercise his jurisdiction;
o       The Minister failed to take into account relevant considerations and/or took into account irrelevant considerations;
o       The Minister’s decisions were legally unreasonable, irrational, or without evident justification; and
o       The Minister failed to afford procedural fairness to the applicants in making his decision.

Held, per Parker J, determining it was not necessary to grant an extension of time in the circumstances:
1.The application for an order in the nature of certiorari quashing the decision made by SCAP on 23 January 2020 that the development proposal is not seriously at variance with the DP is dismissed.
2.The application for an order in the nature of certiorari quashing the decision of the SCAP made on 23 January 2020 to grant development plan consent is dismissed.

3.      The applications for the following declarations are dismissed:
a.      That the development plan consent granted by the SCAP on 23 January 2020 is unlawful or invalid.
b. That no reasonable relevant authority acting reasonably could form the opinion under s 35(2) of the Development Act (1993) (SA) that the development proposed by development application 020/A053/19 is not seriously at variance with the Adelaide (City) Development Plan.
c.      That in assessing the development against the DP the State Planning Commission must ignore and disregard the 2019 DPA Decision and the Interim Effects Decision.

Development Act 1993 (SA) s 3, s 20, s 22, s 23, s 24, s 25, s 26, s 27, s 28, s 29, s 33, s 35, s 38, s 44, s 46, s 53, s 57; Development Regulations 2008 (SA); Planning, Development and Infrastructure Act 2016 (SA) s 30(3); Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 14, sch 3; Supreme Court Civil Rules 2006 (SA) r 200; Uniform Civil Rules 2020 (SA) UCR 256.3, referred to.
Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1; Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446; Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7; Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24; Rhylyn v District Council of Willunga [1994] SASC 4919, distinguished.
360 Capital Re Ltd v Watts (2012) 36 VR 507; Abernethy v Deitz (1996) 39 NSWLR 701; AG Building and Developments Pty Ltd v City of Holdfast Bay [2009] SASC 11; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Angaston District Council v Hamilton (1995) 64 SASR 110; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Boss v District Council of Willunga (1988) 33 APA 186; City of Burnside v City Apartments Pty Ltd [2004] SASC 294; City of Mitcham v Freckman (1999) 74 SASR 56; Collins v City of Mitcham [2008] SAERDC 35; CR Architectural Drafting Consultants v City of Mitcham [1999] SAERDC 75; District Council of Munno Para v Remove-all Rubbish Co Pty Ltd (1985) 41 SASR 188; Gibbs v City of Charles Sturt (2010) 176 LGERA 341; Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190; Holds v The City of Port Adelaide Enfield [2011] SASC 226; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; J & L Developments Pty Ltd v Adelaide Hills Council [2004] SAERDC 24; Jones v Dunkel (1959) 101 CLR 298; Khan v The Minister for Immigration and Ethnic Affairs [1987] FCA 457; Lester Land Holdings Pty Ltd v Development Assessment Commission [2020] SASC 170; McCoy v City of Brighton (1987) 32 APA 408; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Mount Barker Properties Ltd v District Council of Mount Barker (2001) 80 SASR 449; Muin v Refugee Review Tribunal (2002) 190 ALR 601; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Public Service Board of NSW v Osmond (1986) 159 CLR 656; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400; South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35; St Ann’s College Inc v The Corporation of the City of Adelaide [1999] SASC 479; Town of Gawler v Impact Investment Corp Pty Ltd (2007) 99 SASR 115; Upham v Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557; Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd 1985) 38 SASR 161; Wiseman v Borneman [1971] AC 297, considered.

KHABBAZ & ANOR v STATE PLANNING COMMISSION & ORS
[2022] SASC 11
TABLE OF CONTENTS
Relief sought
The grounds of review
The relevant provisions of the Development Act
The relevant provisions of the Adelaide (City) Development Plan
Procedural steps
The extension of time
The Interim Effect decision – RJK’s submissions
Ground 11 - Validity of the Minor Amendments DPA – RJK’s submissions
Ground 11.3 – jurisdiction under s 24(1)(g) all
Ground 11.5 – investigations under s 26(1)(a)
Ground 11.6 – assessments under s 26(1)(b)
Ground 11.7 – requirement in s 26(1)(c)(ii) for a summary of conclusions
Ground 11.8 and 11.9 - infrastructure planning
Multiple failures to comply with s 26(1)
Ground 11 - Validity of the Minor Amendments DPA
Ground 11.3 – the RPA submissions
Grounds 11.5 – 11.9 – general submissions by RPA
Ground 11.5 – the RPA submissions
Ground 11.6 – the RPA submission
Ground 11.7 – requirement in s 26(1)(c)(ii) – the RPA submissions
Grounds 11.8 and 11.9 – infrastructure planning – the RPA submissions
Consideration of Ground 11
Ground 11.3 – Consideration
Ground 11.5 – consideration
Ground 11.6 – Consideration
Ground 11.7 – Consideration
Grounds 11.8 and 11.9 – Consideration
Ground 12 – failure to address mandatory requirements - the RJK submission
Ground 12 – the RPA submission
Ground 12 – Consideration
Ground 13 – irrelevant considerations and legal unreasonableness – the RJK submissions
Ground 13 - The RPA submissions
Ground 13 - Consideration
Ground 14 – irrelevant consideration
Ground 14 – The RPA submissions
Ground 14 – Consideration
Ground 15 – interim effect decision – The RJK submissions
Ground 15 – The RPA submissions
Ground 15 – Consideration
Ground 16 – Denial of Procedural Fairness - The RJK submissions
Ground 16 - The RPA submissions
Ground 16 - Consideration
The Material before SCAP
The Agenda Report
The Future Urban report
The Masterplan report
Other material provided to SCAP
Minutes of the SCAP meeting
The Variance Decision and the Consent Decision
RJK submissions on validity of the Variance and Consent Decisions
RPA submissions on validity of the Variance and Consent Decisions
Separate submissions by the fourth defendant
Ground 7 – Invalidity of the Variance Decision and the Consent Decision – the RJK submissions
Grounds 7.1.1. and 7.1.1A – locality – the RJK submissions
Ground 7.1.2 – positive character – the RJK submissions
Grounds 7.1.3 and 7.1.4 – adjacent zones – the RJK submissions
Ground 7.1.5 – “sympathetic” to the Concept Plan – the RJK submissions
Grounds 7.1.6, 7.1.7, 7.1.12, 7.1.13 and 7.1.14 – transition – the RJK submissions
Grounds 7.1.8 and 7.1.11 – amenity of CLZ residents – the RJK submissions
Ground 7.1.15 – traffic movement – the RJK submissions
Grounds 7.2 and 7.3 – asserted desirable features – the RJK submissions
Grounds 7A.1 and 7A.2 – the wrong tests applied – the RJK submissions
Ground 7A.3 – reliance upon uncertain vehicle access rights – the RJK submissions
Ground 8 – Invalidity of the Variance Decision and the Consent Decision due to failure to assess against the DP – the RJK submissions
Ground 8.1 – failure to assess properly against the DP – the RJK submissions
Grounds 8.2 and 8.3 – assessment against an incorrect development plan – the RJK submissions
Ground 9.1 – constructive failure to exercise jurisdiction – the RJK submissions
Grounds 9.2 to 9.5 and ground 10 – constructive failure to exercise jurisdiction and legal unreasonableness or irrationality – the RJK submissions
Submissions of RPA
Ground 7 – failure to take into account relevant considerations – the RPA submissions
Ground 7.1.13 – the RPA submissions
Ground 7.1.14 – the RPA submissions
Ground 7.1.15 – the RPA submissions
Ground 7.2 and 7.3 – the RPA submissions
Grounds 7A.1 and 7A.2 – the RPA submissions
Ground 7A.3 – the RPA submissions
Ground 8 – the RPA submissions
Ground 9 – the RPA submissions
Ground 10 – the RPA submissions
Consideration of grounds 7 to 10 - general principles
Grounds 7.1.1, 7.1.1A and 7.1.2 - consideration
Ground 7.1.3 - consideration
Ground 7.1.4 – consideration
Ground 7.1.5 - consideration
Ground 7.1.6 - consideration
Ground 7.1.7 - consideration
Grounds 7.1.8 and 7.1.11 - consideration
Ground 7.1.10 - consideration
Grounds 7.1.12, 7.1.13 and 7.1.14 – consideration
Grounds 7.1.15, 7A.3 and 9.5.4 – consideration
Ground 7.2 and 7.3 - consideration
Grounds 7A.1 - consideration
Ground 7A.2 – consideration
Ground 8 - consideration
Ground 9 – consideration
Ground 10 – consideration
Conclusion
APPENDIX

Judicial Review

PARKER J: The applicants in these judicial review proceedings challenge a proposal to erect an apartment building at 2-6 Hutt Street, Adelaide and also challenge the decision of the second defendant, the Minister for Planning (the Minister), to approve and bring into immediate effect certain amendments (the 2019 Amendments) to the Adelaide (City) Development Plan (the DP). I have found that the application should be dismissed in all respects.
The first and second respondents, the Minister and the State Planning Commission respectively, have given an undertaking to abide the event. Accordingly, they took no active part in the proceedings.
The first and second applicants, Raymond Joseph Khabbaz and RJK (SA) Pty Ltd (collectively referred to as RJK), respectively occupy and own a house at 83 East Terrace, Adelaide, very close to the proposed development. The third and fourth respondents, respectively Rymill Park Apartments Pty Ltd and the Trustee for the Rymill Park Apartments Unit Trust, are the developers of the proposed apartment building at 2-6 Hutt Street, being the south-eastern corner of the intersection of Hutt Street and East Terrace.
The third and fourth respondents were separately represented by senior counsel. However, senior counsel for the fourth respondent informed the Court that his client agreed with and supported the submissions of the third respondent. On that basis, senior counsel made only fairly brief submissions on matters of general principle on behalf of the fourth respondent. For that reason, I will refer to the third and fourth respondents collectively as RPA but will identify, where relevant, the additional submissions on behalf of the fourth respondent.
The proposed building will comprise 16 levels and, as it will include a two-level basement car park, there will be 14 floors above ground. The height of the building will be 53.9 metres. This greatly exceeds the maximum height for land in that area under the DP. The question of height and the validity of amendments to the DP are the central issues in these proceedings.
The land owned and occupied by RJK is on the eastern side of a private roadway, Cleo Lane. RJK, and also the occupiers of neighbouring properties located on East Terrace, use Cleo Lane for vehicular access to the rear of their land. 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. It has been contended by RJK that this will cause issues with traffic in Cleo Lane, particularly at peak periods.
Relief sought
RPA contend that the application for judicial review was lodged after the period of six months permitted under r 200 of the Supreme Court Civil Rules 2006 (SA) had expired. Thus, they contend that the application cannot proceed unless the Court grants an extension of time. I will return to that issue.
RJK seek an order in the nature of certiorari to quash the finding made by the State Commission Assessment Panel (SCAP) on 23 January 2020 that the proposed development by RPA is not seriously at variance with the DP as it stood at the relevant time (the Variance Decision). They also seek an order in the nature of certiorari to quash the decision made by SCAP on the same occasion to grant development plan consent (DPC) for the proposed development (the Consent Decision).[1]
[1] The Variance and Consent Decisions were made by SCAP in its capacity as the delegate of the second respondent because the proposed development is in the City of Adelaide and exceeds $10 million in value – see s 30(3) of the Planning, Development and Infrastructure Act 2016 (SA) and clause 3 of Schedule 3 to the Planning, Development and Infrastructure (General) Regulations 2017 (SA).
RJK also seek an order in the nature of certiorari to quash the decision made by the Minister on 3 July 2019 to prepare the City of Adelaide Minor Amendments Development Plan Amendment (the Minor Amendments DPA). The Minor Amendments DPA proposed the 2019 Amendments. RJK also seek that the Court make an order in the nature of certiorari to quash the decision of the Minister to bring the 2019 Amendments into interim effect from 25 July 2019 (the Interim Effect decision).
In addition to the making by the Court of orders in the nature of certiorari to quash the decisions identified above, RJK also seeks declarations in respect of the same matters.
The grounds of review
In their Second Statement of Grounds RJK has advanced 11 grounds of review. Each of those grounds is supported by extensive particulars or additional sub-grounds. Thus, for example, ground 7 includes an additional 20 sub-paragraphs.
The grounds of review, excluding the particulars and sub-grounds, are as follows:
7.Each of the Variance Decision and the Consent Decision is invalid or unlawful because in making the decision, the first defendant failed to take into account mandatory relevant considerations.
…
7A. Each of the Variance Decision and the Consent Decision is invalid or unlawful because in making the decision, the first defendant took into account irrelevant considerations and/or assessed the proposal against an incorrect version of the Plan.
…
8. Each of the Variance Decision and the Consent Decision is invalid or unlawful because, in making each decision, the first defendant failed to assess the proposal against the Development Plan as required by section 33 of the Development Act 1993 (‘Development Act’).
…
9. Each of the Variance Decision and the Consent Decision is invalid or unlawful because the first defendant misconstrued the Development Plan and therefore erred in law in a way which affected its exercise of power, and constructively failed to exercise its jurisdiction.
…
10. Each of the Variance Decision and the Consent Decision the decision was legally unreasonable or irrational.
…
11. The 2019 DPA Decision is invalid or unlawful because the second defendant erred in the purported exercise of jurisdiction and acted ultra vires and/or constructively failed to exercise his jurisdiction or to take into account relevant considerations in:
…
12. Further and in the alternative to Ground 11, the 2019 DPA itself is invalid or unlawful or of no effect because the DPA does not contain the matters alleged at 11.6 to 11.9 (inclusive).
13. Further the 2019 DPA decision was legally unreasonable, irrational, or without evident justification.
…
14. Further and in the alternative to Grounds 11, 12, and 13, the 2019 DPA Decision was invalid or unlawful because the Minister took into account irrelevant considerations, which were outside of the scope of the considerations permitted by the amendment power in the circumstances, and the decision made was legally unreasonable.
…
15. The Interim Effect Decision is unlawful or invalid because of jurisdictional error.
…
16. The Interim Effect Decision was unlawful or invalid for jurisdictional error because that decision, or in the alternative that decision in combination with the 2019 DPA Decision, was made in circumstances which required the Minister to accord procedural fairness to the plaintiffs and he did not do so.

The terms of the particulars and sub-grounds will become apparent from the discussion in the judgment.
The relevant provisions of the Development Act
The provisions of the Development Act 1993 (SA)[2] relevant to the making of the 2019 Amendments and the Interim Effect decision are as follows:
[2]    The Development Act 1993 (SA) was repealed in stages by the Planning, Development and Infrastructure Act 2016 (SA) between 1 April 2017 and 19 March 2021. All decisions considered in these proceedings were made under the Development Act although SCAP operated under the Planning, Development and Infrastructure Act.
24—Council or Minister may amend a Development Plan
(1)An amendment to a Development Plan may be prepared—
…
(g)     where the Minister considers that an amendment to a Development Plan is appropriate because of a matter which in the opinion of the Minister is of significant social, economic or environmental importance—by the Minister; or
…
…
26—Amendments by the Minister
(1)If the Minister is considering an amendment to a Development Plan, the Minister must first prepare a proposal, to be called a "Development Plan Amendment" (or DPA), that complies with the following requirements:
(a)     the DPA must be based on investigations initiated by the Minister for the purposes of this section;
(b)     the DPA must include an assessment of the extent to which the proposed amendment—
(i)accords with the Planning Strategy; and
(ii)accords with other parts of the Development Plan; and
(iii)complements the policies in Development Plans for adjoining areas; and
(iv)satisfies the requirements prescribed by the regulations;
(c)     the DPA must include—
(i)an explanation of the proposed amendment and a summary of the major policy changes (if any) that are proposed; and
(ii)a summary of the conclusions drawn from the investigations and assessments referred to above; and
(iii)a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner);
(d)     the DPA must include an assessment of the extent to which the proposed amendment accords with relevant infrastructure planning (with respect to both physical and social infrastructure) identified by the Minister for the purpose of this section;
(e)     the DPA must include any other matter prescribed by the regulations.
(2)The DPA may incorporate any material prepared by a council in relation to an amendment that was proposed under section 25.
(3)A DPA may only be prepared after the Minister has considered the advice of a person with prescribed qualifications.
(4)When the Minister has prepared a DPA in accordance with the preceding subsections, the DPA will be dealt with in accordance with process A, B or C, as described below, depending on the determination of the Minister.
(5)Process A is as follows:
(a)     the Minister will first refer the DPA to any government Department or agency that, in the opinion of the Minister, has a direct interest in the matter (and any other body as the Minister thinks fit) for comment within the period prescribed by the regulations;
(b)     the Minister will then consider the matter and any comment from a government Department, agency or other body to which the DPA has been referred, although if a response is not received by the Minister within the period that applies under paragraph (a), the Minister may assume that the particular Department, agency or other body does not desire to provide any comment;
(c)     the Minister may then determine whether or not to alter the DPA;
(d)     the Minister will then—
(i)refer the DPA to any council that, in the opinion of the Minister, has a direct interest in the matter for comment within a period of 8 weeks; and
(ii)release the DPA for public consultation, in accordance with the regulations, over a period that is at least concurrent with the period that applies under subparagraph (i).
(5a)Process B is as follows:
(a)     the Minister will refer the DPA to any government Department or agency, and any council, that, in the opinion of the Minister, has a direct interest in the matter (and any other body as the Minister thinks fit) for comment within a period of 8 weeks (and if a response is not received by the Minister within this period then the Minister may assume that the particular Department, agency, council or other body does not desire to provide any comment);
(b)     the Minister will release the DPA for public consultation, in accordance with the regulations, over a period that is at least concurrent with the period that applies under paragraph (a).
(5b)Process C is as follows:
(a)     the Minister will refer the DPA to any government Department or agency, and any council, that, in the opinion of the Minister, has a direct interest in the matter (and any other body as the Minister thinks fit) for comment within a period of 4 weeks (and if a response is not received by the Minister within this period then the Minister may assume that the particular Department, agency, council or other body does not desire to provide any comment);
(b)     the Minister will release the DPA for public consultation, in accordance with the regulations, over a period that is at least concurrent with the period that applies under paragraph (a);
(c)     the Minister will, at the time that the DPA is released for public consultation, give—
(i)an owner or occupier of any land that is directly within the ambit of operation of the proposed amendment; and
(ii)an owner or occupier of each piece of adjacent land to land that is directly within the ambit of operation of the proposed amendment,
a written notice in accordance with the regulations.
(5c)In addition to any requirement prescribed by the regulations, the Minister must, for the purposes of undertaking the public consultation required above—
(a)     allow interested persons to make representations in writing to the Minister in relation to the matter over the period that applies for the purposes of public consultation; and
(b)     ensure that at least 1 meeting is held where members of the public may attend and make representations in relation to the matter (although if no written representation under paragraph (a) indicates an interest to be heard, a meeting need not be held); and
(c)     arrange for a committee of the Advisory Committee (which may, but need not, include members of the Advisory Committee) to consider any representations made under paragraph (a) or (b) and to provide advice to the Minister in relation to those representations.
(5d)The Minister may seek the advice of the Advisory Committee—
(a)     on any proposed alterations to the amendment; and
(b)     on any other issue that should, in the opinion of the Minister, be referred to the Advisory Committee.
…
(8)The Minister may then—
(a)     approve the amendment; or
(b)     alter the amendment and approve the amendment as altered; or
(c)     decline to approve the amendment; or
(d)     divide the amendment into separate amendments (with or without alterations) and approve one or more of those amendments and, as to the remaining amendment or amendments, give further consideration to any outstanding issues and then, if or when the Minister thinks fit, reconsider the amendment or amendments (with or without alterations) and exercise, in relation to the amendment or amendments, any power conferred on the Minister under this subsection to approve, or to decline to approve, the amendment or amendments.
(9)The Minister will give an approval under subsection (8) by notice in the Gazette.
(10)A notice under subsection (9) must fix a day on which the amendment will come into operation (and the relevant Development Plan or Plans will then be taken, from that day, to be amended in the manner set out in the amendment).
(11)Despite a preceding subsection (but subject to the operation of subsection (12)), if—
(a)     the Minister is authorised to proceed with the consideration of an amendment because of the operation of section 24(1)(a)(iv), (iva) or (v); and
(b)     a DPA has been prepared by the relevant council under section 25; and
(c)     the Minister is of the opinion that a policy contained in the DPA is of substantial interest to the Government of the State and should be adopted to achieve consistency with the Planning Strategy, or that the DPA remains valid and effective for the purposes of the consideration of the amendment under this Act,
then—
(d)     the Minister may rely on a DPA (or part of a DPA) prepared by the council (with or without modifications made by the Minister); and
(e)     unless substantial modifications have been made under paragraph (d), the Minister is not required to undertake public consultation on a DPA (or part of a DPA) on which the Minister is relying under paragraph (d) if public consultation has already been undertaken on the DPA by a council under this Act; and
(f)     the Minister is not required to seek the advice of the Advisory Committee under this section to the extent that advice has already been obtained under section 25.
(12)The Minister must refer a proposal to act under subsection (11) to the relevant council for comment within a period (of at least six weeks) determined by the Minister and if during that period the council, by notice in writing, objects to the Minister's proposed action then the Minister must seek and consider the advice of the Advisory Committee before acting.
28—Interim development control
(1)Where the Minister is of the opinion that it is necessary in the interests of the orderly and proper development of an area of the State that an amendment to a Development Plan should come into operation without delay, the Minister may, at the same time as, or at any time after, a DPA in relation to the amendment is released for public consultation under this Subdivision, and without the need for prior consultation with any council or other authority, by notice in the Gazette, declare that the amendment will come into operation on an interim basis on a day specified in the notice.
(2)Where a notice has been published under subsection (1), the amendment comes into operation on the day specified in the notice.
(3)The Minister must, as soon as practicable after the publication of a notice under subsection (1), prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament.
(4)An amendment that has come into operation under this section ceases to operate—
(a)     if the Minister, by notice published in the Gazette, terminates the operation of the amendment; or
(b)     if either House of Parliament passes a resolution disallowing the amendment after copies of the amendment have been laid before both Houses of Parliament under section 27(7); or
(c)     if the amendment has not been approved by the Minister under this Subdivision within 12 months from the day on which it came into operation; or
(d)     if the amendment is superseded by another amendment that comes into operation under this Subdivision.
(5)If an amendment ceases to operate by virtue of subsection (4)(b) or (c), notice of that cessation must forthwith be published in the Gazette.
(6)If an amendment ceases to operate by virtue of subsection (4)(a), (b), or (c), the Development Plan will, from the date of cessation, apply as if it had not been amended by that amendment.
If the Minister approves an amendment to a Development Plan, s 27 requires that the Minister, within 28 days, must refer the amendment to the Environment, Resources and Development Committee of the Parliament (the ERD Committee). The amendment must be accompanied by a report from the Minister that refers to a series of matters identified in s 27(2). If the ERD Committee either resolves to suggest amendments or objects to the amendment, the matter must then be dealt with in accordance with an elaborate process set out in s 27. As the ERD Committee did not object or suggest amendments, it is unnecessary to refer to that process.
The relevant provisions of the Adelaide (City) Development Plan
Due to their length, the relevant provisions of the DP have been included in an Appendix to this judgment. Only Principle of Development Control (PDC) 21 of the Capital City Zone (CCZ) within the DP is relevant to the Minor Amendments DPA, the 2019 Amendments Decision and the Interim Effect Decision. The balance of the DP is only relevant to the Variance and Consent Decisions.
Procedural steps
In a minute dated 1 April 2019 the acting Chief Executive of the former Department of Planning, Transport and Infrastructure (DPTI) recommended to the Minister that he initiate investigations for the preparation of the Minor Amendments DPA. It is necessary to refer in some detail to the contents of that minute.
The minute explained that it was proposed to amend the over-height policy, and specifically PDC 21 of the CCZ. The object of the amendment was stated to be “to improve investor certainty in the City of Adelaide and (sic) through improved policy expression”. It was stated that PDC 21 had been introduced following the Capital City Policy Review DPA (the 2017 DPA) that had been approved by a former Minister in 2017. The 2017 DPA had introduced new policy into the CCZ to reinforce design quality for new development, including over-height provisions in the DP. The minute noted that the CCZ was the primary focus of large scale economic and cultural development in the State and includes a range of employment, community and entertainment land uses.
The minute stated that the “legality” of PDC 21 had been questioned in judicial review proceedings. That was apparently a reference to the 2018 Judicial Review. It was suggested that a possible outcome of the judicial review was that PDC 21 as it then stood, and any development plan consent issued under that provision, was open to challenge. It was further suggested that there were “also opportunities to strengthen and clarify existing policy for sustainable design measures, providing greater certainty regarding policy intent”.
The minute contained a recommendation from DPTI that a DPA be prepared to review PDC 21. The justification provided for this recommendation was:
This warrants consideration as a Minister-initiated DPA on the basis that it is of significant economic importance, as it seeks to prevent confusion or ambiguity regarding policy intent for an important development aspect (height) which can have critical implications for both investment and the community.
The initiation of the DPA was said to be supported by the staff of the City of Adelaide. The minute also noted that the DPA would provide the opportunity to determine whether other minor policy amendments were appropriate.
In accordance with s 26(3) of the Development Act, advice was provided to the Minister by a person with prescribed qualifications. That person was Ms Sally Jenkin of DPTI. Her advice was as follows:
Investment in the City of Adelaide is important to the State’s economy, and therefore it is important that investment confidence is maintained. From 2018, the State Commission Assessment Panel (SCAP) approved $705.25 million worth of development in the City of Adelaide alone. This does not include development under $10 million that was assessed by the City of Adelaide.
The pending outcomes of the court appeal means that investors may be concerned about how the court will view review applications that call up the over-height policy in the Development Plan should it determine the section 29 invalid. This results in uncertainty for investors.
The review of this policy is timely, as it has now been tested through the SCAP. DPTI development assessment officers have advised that while over-height applications have been approved with consideration of this policy, the policy is complex, lacks clarity and practicality, which makes it difficult to achieve its intended purpose particularly in regard to the sustainability measures.
The DPA seeks to increase certainty for investors enabling improvements through the clarity of policy and ensuring it is legal and robust.
The DPA will contribute to the 30-year plan for greater Adelaide’s targets and policies by:
·supporting high density infill development in the City of Adelaide and thereby limiting our urban footprint and protecting our resources; and
·strengthening the build form of the city, with greater design expectations for taller buildings including the promotion of green infrastructure and energy efficiency.
The minute recommended that if the Minister decided to proceed with the DPA, the range of investigations recommended in an attached initiation document should be undertaken. The minute also noted that it was expected that the various steps outlined in a timetable should take approximately 31 weeks. That would result in the process being completed in October 2019. The minute noted that interim operation could result in the amendment coming into effect in May 2019. However, the Minister could only make such a decision once the draft DPA had been prepared for his consideration. Consultation was to be undertaken in accordance with process B in s 20(5a). The process B consultation would require a period of eight weeks.
On 4 April 2019, the Minister endorsed the minute to indicate that he had “considered” the advice from the officer with prescribed qualifications. The Minister also noted that he “agreed” with the recommendation that he form the opinion that the matter was of significant social, economic or environmental importance and should initiate investigations with the DPA in accordance with s 24(1)(g) of the Act. The Minister also “agreed” with recommendations that he sign the initiation document and an attached letter to the Lord Mayor advising her that he had initiated the Minor Amendments DPA.
The initiation document signed by the Minister was described as providing the basis for the preparation of the proposed DPA. This document stated that the basis was to:
P13Strengthen the primacy of the Adelaide City centre as the cultural entertainment, tourism and economic focus of Greater Adelaide.
P14Strengthen the overall built from of the city, which is characterised by a grid pattern of streets and squares, contrasting with the open space of the Parklands.
P15Deliver an overall city form that expresses taller buildings within the centre, lower buildings towards the southern residential precincts and some additional height along the terraces and round the four city squares.
P16Reinforce key city boulevards, such as King William, Grote and Wakefield Streets through taller, contemporary buildings that create a sense of entry and frame these important streets.
P17Reinforce the special character of the main streets of Gouger, Hindley, Rundle and Hutt Streets through contextual design responses that increase activity and vibrancy, while also preserving the elements that make these places special.
P19Reinforce the inner and outer built form edge of the Park Land terraces by encouraging quality medium to high-rise mixed use developments that increase the diversity of housing while also contributing to, and activating, the public realm.
P22Sustain the heritage, character and scale of valued residential precincts (including North Adelaide and the south-east and south-west corners) with contextually appropriate development that contributes to the needs of our growing population and provides services to the community.
P24Enhance the city’s street network to support the intensity and complexity of people movement, business and community activity to provide great ‘people place’ befitting Adelaide’s heart.
The Plan states that the Adelaide City centre will become carbon neutral and act as a showcase for the uptake of renewable and clean technologies, building on Adelaide’s reputation as a clean, green and vibrant city. The following policies are relevant in regard to over-height provisions in the Capital City Zone:
P108Promote green infrastructure (including green roofs, vertical gardens and water sensitive design) in higher density and mixed-use development to assist with urban cooling, reduce building energy use and improve biodiversity.
P113Promote energy efficiency, the use of renewable energy sources and neighbourhood level alternative energy supplies and storage in new development to reduce energy costs and carbon footprint.

The initiation document also stated:
The following documents will also be reviewed in relation to the proposed DPA:
·Section 29 – to the Adelaide (City) Development Plan – regarding amendments to Capital City Zone PDC 21.
·Capital City Zone Policy Review Development Plan Amendment – as approved by the former Minister for Planning.
·SCAP Assessment Reports in relation to development applications considering PDC 21 of the Capital City Zone.
·Residential Growth Strategy, City of Adelaide 2012-2016.
·Victorian Better Apartments Initiative, by the Office of the Victorian Government Architect and the Victorian Department of Environment, Land, Water and Planning (2015-2016).
·Smart Move: Transport and Movement Strategy, City of Adelaide 2012-2022.
·Carbon Neutral Strategy 2015-2025 Adelaide South Australia.
The initiation document also noted that advice would be sought from the assessment staff in DPTI and the Office for Design and Architecture SA (ODASA).[3] The document further noted that interim operation may be recommended “to prevent confusion or ambiguity regarding policy intent for an important development aspect (height) that can have critical implications for both investment and the community”.
[3] I understand that the Government Architect is the head of ODASA.
Another minute was sent to the Minister by DPTI on 24 June 2019 concerning the proposed consultation process for the 2019 amendments. This minute recommended that the amendments be brought into interim operation.
By way of background, the DPTI minute of 24 June 2019 noted that in May 2017 the Capital City (Design Quality) Development Plan Amendment had come into operation. Amongst other changes, proposals for over-height buildings were dealt with in PDC 21 of the Capital City Zone. In December 2017, a delegate of the Minister had amended PDC 21 pursuant to s 29 of the Development Act. The minute advised that s 29 authorised the making of amendments to a development plan to “correct an error”.
I note that the latter explanation is a very loose description of the power conferred upon the Minister by s 29 to amend a development plan without engaging in the ordinary consultation processes required under s 26. It was contended in the 2018 Judicial Review that s 26 did not authorise the amendments made in December 2017. The same matter has also been pleaded at Ground 8.3 in the present proceedings but has not been pressed in this action.
The minute of 24 June 2019 further advised the Minister that DPTI had “investigated the strengths and weaknesses of PDC 21 in achieving desired outcomes for the City of Adelaide”. The outcome of these investigations was said to be that it was necessary to proceed with the DPA so as “to improve the quality of outcomes in the City of Adelaide, as well as to provide certainty and investor confidence for applications lodged under the policy regime”. The minute also noted that PDC 21 was the subject of the 2018 Judicial Review and that those proceedings related to the DPC for the site at 2-6 Hutt St. This litigation was said to have “raised a potential uncertainty about the validity of the current PDC 21, further emphasising the need for a Development Plan Amendment which provides certainty and investor confidence”.
The minute also advised the Minister that investigations had been completed in accordance with the Initiation Document. Accordingly, the DPA was provided to the Minister for him to release for consultation and to consider interim operation.
The Minister was further advised in the minute that a key component of the rezoning conducted in 2012 in the City of Adelaide was “to provide greater flexibility around building heights, with the trade-off being the introduction of a statutory referral to the Government Architect and the establishment of the pre-lodgement service”. The rezoning had resulted in a significant increase in the value of development approvals considered by SCAP, the development of 1,517 new dwellings and an increase in population of 549 people. The minute also referred to the economic significance of investment in the City of Adelaide and made mention of strategic investment by the Government in key infrastructure.
The minute of 24 June 2019 also noted that the design policy requirement for over-height buildings had been raised in 2017 by the Minister’s Design Quality Development Plan Amendment which had introduced “a range of additional sustainability measures to be achieved for over-height development. Since the introduction of the provisions there had been contention about their application which resulted in a Section 29 Amendment in late 2017”. Notwithstanding that amendment, DPTI considered that the wording of PDC 21 was still ambiguous and difficult to apply. That resulted in a lack of confidence from investors about whether over-height development would be suitable and/or appropriate.
The effect of the proposed amendments to PDC 21, as explained in the DPTI minute of 24 June 2019, may be summarised as follows:
·Greater emphasis would be given to the provision of affordable housing as an incentive to support over-height development. This was important to meet the City of Adelaide’s objective of increasing its population and the State’s objective of improving housing affordability.
·The adaptation of heritage and character buildings was also proposed as a stand-alone incentive.
·The wording of PDC 21 would be made more specific and some numerical standards included to ensure greater consistency in the interpretation of the policy relating to accessible open space, pedestrian linkages, activated street frontages, green walls, passive energy elements and private open space.
·Additional criteria were also proposed in relation to buildings adjacent to the parklands and the effect on adjoining properties.
DPTI provided the following advice in the minute to the Minister in relation to the bringing of the DPA into immediate operation on an interim basis:
For a DPA to come into an interim operation the Minister must be of the opinion that it is necessary in the interests of the orderly and proper development of an area of the state for the DPA to come into operation without delay. If this threshold is not met, the DPA cannot commence under interim operation.
[material redacted]
This means that in order for interim operation to be used you must first be satisfied, having regard to this minute and to the draft DPA itself, that:
·It is necessary for the DPA to commence without delay.
·The interim operation must [be] necessary for the orderly and proper development of the state.
This means that you must be satisfied that need for interim operation is more than just “desirable” or “convenient” – it must be “necessary”. In this context “necessary” means closer to “required” or “indispensable”. It is imperative that you carefully consider whether you are satisfied, having regard to this minute and to the DPA itself, that the above criteria apply in this matter.
Need for Interim Operation
The following advice has been prepared to assist you in forming a view as to whether interim operation is necessary.
In having regard to the purpose of interim operation, the Department advises that it would be reasonable for you to determine that the DPA is necessary and should commence without delay in order to achieve proper and orderly development of the City of Adelaide, given the current uncertainty around the validity of PDC 21 and the desire for improved development outcomes.
Current uncertainty
This uncertainty has been uncovered in the ongoing matter before the Supreme Court of Khabbaz v State Planning Commission & Ors. This uncertainty extends to the validity of applications that have been assessed against this provision since the Section 29 Amendment.
Although the outcome of Khabbaz v State Planning Commission & Ors is unclear, the Department suggests that it is not palatable to retain the identified uncertainty regarding PDC 21. To continue to assess development against a provision which could ultimately be determined to be invalid, is antithetical to maintaining proper and orderly development of the City of Adelaide. With the development sector already facing challenges in the residential market and banking sectors, this uncertainty could have significant economic impacts.
As such, this amendment is considered to be required in order to commence operation without delay and to maintain confidence in the development industry. This will ensure proper and orderly development of the City of Adelaide by:
·enabling greater certainty and efficiency in development assessment processing.
·ensuring that investment is not at risk due to challengeable decisions.
Improved policy outcomes
It is critical to ensure any approval of over-height development is done on the basis that it achieves a greater good to society, either through retention of heritage items, provision of affordable housing or meeting criteria for excellent design quality outcomes and sustainability measures. Given that applications could be lodged that are contrary to the intent of the policy improvements, there are further benefits to the use of interim operation in this case.
DPTI advised in the minute that it would be reasonable for the Minister to determine that the DPA was necessary and should commence without delay “in order to achieve proper and orderly development of the City of Adelaide, given the current uncertainty around the validity of PDC 21 and the desire for improved development outcomes”. It was further noted that the suggested uncertainty extended to other applications that had been assessed against PDC 21 after the December 2017 amendment. It was further suggested that the alleged uncertainty in the residential market and banking sectors would have significant economic impacts. The amendment would enable greater certainty and efficiency in development assessment processing and ensure that investment was not at risk due to challengeable decisions.
The DPTI minute of 24 June 2019 also suggested that it was critical to ensure that any approval of over-height development was done on a basis that achieved a greater good to society, either through the retention of heritage items, the provisions of affordable housing or meeting criteria for excellent design quality outcomes and sustainability measures. As applications could be lodged that were contrary to the intent of the proposed policy improvements, interim operation would provide a further benefit.
Three recommendations were made to the Minister. Those recommendations may be summarised as follows:
1.The Minister should agree to release the minor amendments DPA with consultation in accordance with s 26(5a) of the Act, i.e. process B.
2.The Minister should consider that he was now of the opinion that it was necessary “in the interests of the orderly and proper development of an area of the State” that the amendments come into operation without delay.
3.The Minister should form the view that the City of Adelaide has a direct interest in the DPA and consult with it by signing an attached letter to the Lord Mayor.
The Minister endorsed the minute to indicate that he agreed with each of those three recommendations. Consistently with that approval, the Minister signed a declaration dated 3 July 2019 recording his opinion that pursuant to s 28(1) of the Development Act he was of the opinion that it is “necessary in the interest of the orderly and proper development of the area” that the DPA should come into operation without delay. The Minister declared that the amendment was to come into operation on an interim basis on the day on which notice was published in the Gazette. The notice was subsequently published in the Gazette on 25 July 2019.[4]
[4] At page 2782.
DPTI subsequently distributed material for consultation purposes that was couched in essentially the same terms as the minutes to which I have referred.
The extension of time
As the application for judicial review was commenced on 24 January 2020, it was subject to the now repealed Supreme Court Civil Rules 2006 (SA). The former r 200 required that an application for judicial review be commenced as soon as practicable after the date that the grounds for review arose and, in any event, within six months.[5]
[5] By way of comparison, I note from that 18 May 2020 under r 256.3 of the Uniform Civil Rules 2020 (SA) the time limit of six months is expressed to run from the date of the decision, act or omission that is the subject of the action.
The date that the grounds for review arose is in dispute. RPA contend that the grounds for review arose on 3 July 2019, when the Minister approved the Minor Amendments DPA and also the Interim Effect decision. The latter decision brought the 2019 Amendments into operation from 25 July 2019. RJK contend that the grounds for review did not arise until notification of the Minister’s decision was published in the Gazette on 25 July 2019. That notice concluded with the following passage:
I declare that the Amendment will come into operation on an interim basis on the day in which this notice is published in the Gazette.
If the grounds for review arose on 3 July 2019, then the application was lodged after the time limit of six months had expired and cannot proceed unless the Court grants an extension of time. However, if the grounds did not arise until 25 July 2019, then the only issue to be decided by the Court is whether the application was commenced as soon as practicable after the grounds for review arose.
The solicitor for RJK, Mr Ashik Ibrahim, filed a lengthy affidavit dated 11 August 2020 in relation to the time point. Mr Ibrahim observed that the present proceedings were commenced on 24 January 2020, being the day following the grant of the DPC that is the ultimate subject of these proceedings. Mr Ibrahim also sought to explain in considerable detail the history of his dealings with the solicitors for the other parties and why the challenge to the Minor Amendments DPA was not lodged earlier. Mr Ibrahim also deposed that at all times he believed that the six-month time limit under the former r 200(1) had commenced on 25 July 2019, being the date of the Gazette notice. He alleges that at no time prior to 22 July 2020 had RPA suggested that the relevant date was anything other than 25 July 2019.
In view of the conclusion that I have reached below as to the application of the former r 200, it is not necessary to refer in greater detail to the contents of Mr Ibrahim’s affidavit.
In an affidavit dated 11 August 2020, the first applicant, Raymond Joseph Khabbaz, set out a history very similar to that contained in the affidavit of Mr Ibrahim. He additionally stated that he waited as long as possible to see if the application that is now subject to review was granted DPC. He adopted that approach as he did not want to commence proceedings unnecessarily.
Section 26(1) of the Development Act empowers the Minister to prepare a proposal for the amendment of a development plan. Somewhat misleadingly, s 26(1) requires the proposal to amend to be called a “development plan amendment”. On one view, the preparation of the Minor Amendments DPA was simply a step in the process leading towards the amendment of the DP. Of itself, the Minor Amendments DPA did not amend the DP. In the ordinary course, that could only occur after the Minister had undertaken the process required by s 26.
The ordinary course that I have referred to in the previous paragraph may be modified under s 28(1). This empowers the Minister to declare, by notice in the Gazette, that an amendment to a development plan will come into operation on an interim basis on a day specified in the notice. Perhaps out of an abundance of caution, the commencement date of an amendment brought into operation on an interim basis is also stated in s 28(2) to be the date specified in the notice.
Consistently with the approach adopted in s 28, under the ordinary course an amendment to a development plan also comes into operation on the date fixed in a notice published in the Gazette (see s 26(9) and (10)).
Of itself, the approval granted by the Minister on 3 July 2019 had no immediate legal effect. That is because s 28(1) and s 28(2) precluded the 2019 Amendments proposed in the Minor Amendments DPA from coming into interim operation prior to the notice being published in the Gazette.
RJK seek an order in the nature of certiorari to quash the decision of the Minister to bring the 2019 Amendments into interim effect. There is a line of authority where it has been held that certiorari is not available to quash a decision where the decision does not directly affect legal rights or interests even though the decision provides a basis for further action by another person or body that may have that effect.[6] The present case does not involve that issue. The effect of s 28(1) and s 28(2) was not to introduce a two-stage decision making process whereby some other person or body other than the Minister had a discretion whether or not to implement his decision to bring the 2019 Amendments into interim effect. To the contrary, the statute simply adopted the commonplace approach that an exercise of quasi-legislative power was not operative until notice was published in the Gazette.
[6] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Wiseman v Borneman [1971] AC 297 Lords Donovan and Wilberforce at 316-317 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. However, see also Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 148 (Gleeson CJ), 178 (Mahoney JA) where an arguably different approach was adopted.
The approval given by the Minister had no force or effect until notice was published in the Gazette. Nevertheless, the error that is said to have occurred was in the decision making by the Minister. The subsequent publication simply brought his decision into operation. While it may be arguable that the grounds for review arose on 3 July 2019 when the Minister decided to bring the 2019 Amendments into interim effect, I consider the correct view to be that the grounds for review did not arise until 25 July 2019 when notice was published in the Gazette.
I hold that view for two reasons. First, and most significantly, the Minister’s decision remained inoperative and inchoate until such time as notice was given in the Gazette. That is because the 2019 Amendments had no legal effect until publication. Secondly, this interpretation avoids the unsatisfactory result that time would have commenced to run against a potential challenger in respect of a decision of which they had no means of knowing and would be entirely unaware until gazettal.
I accept the unchallenged explanation provided by Mr Khabbaz in his affidavit as to the timing of the application. On that basis I am satisfied that RJK did commence the proceedings as soon as practicable. While the Minister’s decisions might have been challenged in judicial review proceedings not long after the publication of the Gazette notice on 25 July 2019, that would have been a pointless exercise if the fresh application lodged by RPA had not been granted DPC by SCAP.
RPA has also contended that the Court should reject the submission that there was no legally effective decision until 25 July 2019 when the Interim Effect decision was gazetted. The basis for that contention is that the 2019 Amendments Decision was effective when the Minister signed the minute on 3 July 2019. The Interim Effect Decision was a separate exercise of statutory power from the Amendments Decision. RPA contended that there is no basis for saying that the 2019 Amendments Decision was not effective until the gazettal of the Interim Effect Decision. That requires a closer examination of the operation of ss 26 and 28.

Section 26 governs the ordinary process for amendment of a development plan by the Minister. Section 26(8) provides that the Minister may approve a development plan amendment after the process in the preceding sub-sections of s 26 has been followed. Approval is given by notice in the Gazette in accordance with s 26(9). Section kctkcc 26(10) specifies that such a notice must fix the commencement date of the amendment. However, the exercise of the power conferred by s 28(1) to bring an amendment into interim effect on a date specified under s 28(2) displaces the ordinary process of approval and commencement pursuant to ss 26(8), 26(9) and 26(10). That power may be exercised when, or at any time after, a DPA is released for public consultation. However, in my view, the clear effect of the words used in s 28(1) is that the Minister makes his decision by publishing the declaratory notice in the Gazette. In other words, the approval given by the Minister on 3 July 2019 was an instruction to proceed with the Interim Effect decision which then came into legal operation upon publication in the Gazette. Prior to gazettal there was no decision capable of being challenged. Moreover, RJK had no means of knowing about that decision prior to gazettal.
I reject the contention advanced by RPA that the 2019 Amendments Decision was legally effective on 3 July 2019 and that time ran from then.
Even if I am wrong in my interpretation of r 200 and of s 26 and s 28 of the Development Act, I would grant an extension of time. My reasons are that the delay beyond the six-month period was quite short; the apparent assumption by both sides until a very late stage that the relevant date was 25 July 2019 (correctly, in my view); and the application was filed the day following the grant of DPC. While RPA has contended that it would suffer prejudice from the grant of an extension of time, I do not consider the arguments to be particularly persuasive. However, because of my ultimate conclusion, it is unnecessary to consider that issue further.
The Interim Effect decision – RJK’s submissions
The Variance Decision and the Consent Decision were made under the DP as amended by the 2019 Amendments Decision. For that reason, I will first consider the challenges by RJK to the Minor Amendments DPA, the 2019 Amendments Decision and the Interim Effect decision.
Before considering those issues, it is necessary to refer to an earlier application for judicial review[7] instituted on 6 September 2018 by the first and second applicants in this matter (the 2018 Judicial Review).
[7] Action Number 1046 of 2018.
In the 2018 Judicial Review, RJK challenged the grant of DPC on 14 June 2018 by SCAP to a development on the subject land that was essentially the same as that now proposed. The decision by SCAP that the development then proposed was not seriously at variance with the DP as it then stood was also challenged in the 2018 Judicial Review. The 2018 Judicial Review has been adjourned pending judgment in the present proceedings.
Ground 11 - Validity of the Minor Amendments DPA – RJK’s submissions
Against that background, I turn to consider the challenge by RJK to the validity of the Minor Amendments DPA.
Grounds 11.1, 11.2, 11.4 and 11.10 have been abandoned by RJK.
Ground 11.3 – jurisdiction under s 24(1)(g) all
RJK submit in support of Ground 11.3 that s 24(1)(g) of the Development Act only empowered the Minister to amend the DP if two requirements were satisfied. The first such requirement is that the Minister had formed the opinion that there exists a matter of significant social, economic or environmental importance (the Matter Opinion). The second requirement is that the Minister considered that an amendment was appropriate because of the matter that is the subject of his or her opinion (the Appropriateness Opinion).
RJK submit that, in essence, the minute forwarded to the Minister showed no more than that DPTI recommended or advised that:
·“a DPA be prepared to review the Capital City Zone over height policy PDC 21 … on the basis that it is of significant economic importance”;
·“investors may be concerned about how the Court [in the earlier proceedings] will view applications that call up the over height policy;
·the over height policy was “complex, lacks clarity and practicality, which makes it difficult to achieve its intended purpose particularly in regard to sustainability measures”;
·the purpose of the proposed DPA was “to increase certainty for investors”.
The Minister endorsed the DPTI minute so as to indicate that he agreed with the recommendation that he was “now of the opinion that it is necessary, in the interests of the orderly and proper development of an area of the state” that the Minor Amendments DPA come into operation without delay. The Minister also signed the Initiation Document relating to the Minor Amendments DPA.
In this light, RJK accept that the Court may infer that the Minister formed the Matter Opinion in which he identified “the matter” as being “investor certainty in the City of Adelaide”. The Minister also identified that this matter was of significant economic importance. Given the acceptance by RJK that the Matter Opinion requirement was satisfied, they focus their contentions on the assertion that the Appropriateness Opinion requirement was not satisfied. They submit that the Court should not infer that the Minister formed the Appropriateness Opinion in the absence of evidence from the Minister himself. Merely because material was put before the Minister does not establish that he took it into account so as to warrant formation of the Appropriateness Opinion.
RJK further submit that the Minister has not asserted that he had formed the Appropriateness Opinion. The absence of such an assertion assists the Court to infer that the Minister did not consider the appropriateness issue nor form the Appropriateness Opinion. RJK also contend that the force of their contention in favour of the Court reaching such a conclusion is reinforced by their submission that the Minister took into account that the 2019 Amendments would increase the likelihood that the respondents would be granted DPC.
Ground 11.5 – investigations under s 26(1)(a)
RJK also contend that the Minor Amendments DPA did not satisfy the requirement in s 26(1)(a) that any DPA prepared by the Minister “must be based on investigations initiated by the Minister for the purposes of this section”. The investigations initiated by the Minister were set out in the Initiation Document where it was identified that certain documents would be reviewed. These documents included:
·SCAP assessment reports in relation to applications considered under PDC 21 of the CCZ;
·the Residential Growth Strategy for the City of Adelaide 2012-2016; and
·the Victorian Better Apartments Initiative.
RJK submit that there is no evidence that any of those documents were reviewed for the purposes of the Minor Amendments DPA. There was also no basis to infer that these documents were reviewed because they were not listed in the bibliography included in the DPA. For that reason, RJK contend that the Court should find that the Minor Amendments DPA was not based on investigations initiated by the Minister.
Ground 11.6 – assessments under s 26(1)(b)
RJK observe that s 26(1)(b) of the Development Act requires that any DPA “must include an assessment of the extent to which” the proposed amendment accords with the Planning Strategy and accords with other parts of the particular development plan. RJK indicate that, at the relevant time, in accordance with s 22, the relevant element of the Planning Strategy was The 30-Year Plan for Greater Adelaide (2017). They submit that although there is a reference to the Planning Strategy in the Minor Amendments DPA, there is no assessment of the extent to which the changes to PDC 21 accorded with the Planning Strategy. In their submission, this is said to be important.
RJK submit that the changes made to PDC 21 conflict with several policies in The 30-Year Plan. Those policies are said to include P15, P17 and P 22. RJK also makes the same submission in relation to the lack of any assessment of the extent to which the changes to PDC 21 accord with other parts of the DP. That is said to be important because PDC 21 is only one of several provisions that are concerned with building height. The changes made to PDC 21 conflict with several provisions that deal with the interface between zones or areas that permit different building heights. They refer to:
·Council wide objectives 47(a) and 47(d):
·Council wide PDCs 173 and 270;
·Capital City Zone PDCs 16, 23 and 25; and
·the provisions that set the maximum building heights in zones adjoining the Capital City Zone.
By way of example, RJK submit that if PDC 21 does permit unlimited additional height on any site within the Capital City Zone subject only to the requirement to provide some “green” design measures (which RJK deny), that would be antithetical to the generally pyramidal city form envisaged by the Concept Plan and also in direct conflict with PDC 23 and PDC 25 in the Capital City Zone which indicate a desire to avoid adverse effect on residential amenity (PDC 23) and the maintenance of the established or desired future character of the area (PDC 25). Furthermore, RJK submit that if PDC 21 does allow unlimited additional height, that would be inconsistent with the expressed character for the City Living Zone (the CLZ) and the Parkland Zone and the goal in the DP of transition and gradation. In support of that contention RJK refer to objects 47(a) and 47(d) in the Council Wide objectives and PDC 173 and PDC 270 in the Council Wide principles and PDC 16, PDC 23 and PDC 25 in the Capital City Zone.
RJK submit that there has been no assessment of whether the Minor Amendments DPA accords with the matters referred to in the previous paragraph. For that reason, they submit that the Minor Amendments DPA was unlawful and invalid. Thus, the Minister did not have power to adopt the Interim Effect decision.
RJK also submit that the purpose of s 26(1)(b)(i) and (ii) is to identify policy conflicts which might arise if particular amendments were to be made. The Minister can then decide whether to proceed with the amendments and also whether to give them interim operation. In the absence of such an assessment, the Minister is deprived of information that is a mandatory requirement.
Ground 11.7 – requirement in s 26(1)(c)(ii) for a summary of conclusions
RJK submit that s 26(1)(c)(ii) requires that a DPA must include a summary of the conclusions drawn from the investigations and assessments conducted under s 26(1)(a) and (b). The purpose of this requirement is said by RJK to be to ensure that the public can consider and comment on the conclusions during the consultation process. It also enables the Minister to consider that material when determining any policy conflicts that might arise from the proposed amendments.
RJK contend that the Minor Amendments DPA did not comply with s 26(1)(c)(ii) in two respects. First, not all of the assessments and investigations referred in to s 26(1)(a) and (b) were undertaken. Secondly, the required summary of conclusions did not appear in the Minor Amendments DPA.
Ground 11.8 and 11.9 - infrastructure planning
RJK also submit that there has been a failure to comply with s 26(1)(d). This requires that any DPA “must include an assessment of the extent to which the proposed amendment accords with relevant infrastructure planning (with respect to both physical and social infrastructure) identified by the Minister for the purposes of this section”. The absence of any reference to infrastructure planning in clause 5 of the DPA strongly suggests, in the submission of RJK, that the issue was not considered.
Multiple failures to comply with s 26(1)
RJK submit that there were multiple failures to comply with s 26(1). The words “must include” in each placitum of s 26(1) make the several requirements mandatory. Due to the failure to satisfy those mandatory requirements, the Minor Amendments DPA was invalid as was the decision to bring it into interim operation.
Ground 11 - Validity of the Minor Amendments DPA
This is a convenient point to note that senior counsel for the fourth respondent contended in his separate submissions that the RJK suggestion that there was no basis upon which the Minister could have concluded that the amendments were of significant social, environmental or economic importance wholly ignores the advice provided to the Minister. The Court is not entitled to “second guess” the Minister on question which the statute leaves to his judgment. This submission related generally to grounds 11 to 15.
Ground 11.3 – the RPA submissions
RPA acknowledge that the minute submitted to the Minister and approved by him on 4 April 2019 did not include the word “appropriate”. However, the Minister was advised in the minute that:
If you are of the view that an amendment to the Adelaide (City) Development Plan is warranted as described above, and you are of the opinion that the matter is of significant social, environmental or economic importance, you can initiate such an amendment pursuant to s 24(1)(g) of the Act.
(Emphasis added)
RPA submit that those words make clear to the Minister that his power to initiate the DPA requires something more than the formation of an opinion that the matter was of significant social, environmental or economic importance. This extra consideration was described to the Minister as him holding the view that an amendment was “warranted”. RPA submit that in this context the word “warranted” was used in the sense of “justified”. They further submit that the word “appropriate” conveys a sense of “suitable of fitting for a particular purpose, person or occasion”.
In view of those definitions, RPA submit that there is no substantive difference between the meaning of the words “warranted” and “appropriate”. In fact, RPA submits that the approach adopted in the minute may have postulated a stricter test, being that of justification, whereas the Act merely requires appropriateness. It is possible that an amendment might be considered to be appropriate even if it is not justified. However, if an amendment is justified, it would also be appropriate.
Quite apart from these matters, RPA submit that for RJK to succeed with their contention that the Minister failed to consider a mandatory relevant consideration, they must demonstrate that the error was material to the decision-making process.[8] RJK would need to demonstrate that if the Minister had been told that he had to decide whether the amendment was “appropriate” rather than “warranted” he would not have initiated the DPA. RPA submit that RJK cannot sensibly demonstrate this. Thus, the ground must fail.
[8] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 at 40.
RPA further submit that this Court has previously held in Mount Barker Properties Ltd v District Council of Mount Barker that the former ss 25(3) and 25(4) of the Development Act (which for present purposes the respondents contend are largely identical to ss 26(3) and 26(4) as they stood at the time of the Minister’s decision)[9] could not “be regarded as an essential prerequisite to the process of public consultation or ministerial assessment”.[10]
[9] In my view, the former s 25(3) equated to s 26(1) and s 25(4) to s 26(3). The former section 25 dealt with amendment to a DP proposed by a council while the former s 26 was concerned with amendments initiated by the Minister.
[10] (2001) 80 SASR 449 at [50].
Furthermore, RPA notes that the Court also observed in the Mount Barker Properties case that Parliament did not intend that non‑compliance with certain steps in relation to the preparation of a development plan should result in invalidity and that Parliament “does not intend that failure to strictly comply with section 25(3) and 25(4) will result in invalidity. All that is required is substantial compliance” (emphasis added).[11]
[11] Ibid at [53].
Alternatively, RPA submit that the Court should refuse to grant relief in the exercise of its discretion. The basis for that submission is that it would be an exercise in futility to quash the decision of the Minister on the basis that there has not been an Appropriateness Decision when there is no reasonable prospect of the Minister considering that the amendments to the DP are not appropriate when he has found that they are warranted.
Grounds 11.5 – 11.9 – general submissions by RPA
In relation to each of the grounds 11.5 to 11.9, the RPA submit that in contrast to s 24 of the Act, s 26 is concerned with matters of process rather than jurisdiction or the existence of power. For that reason, care must be taken before concluding that a failure to comply with any procedural requirements will result in invalidity.[12] RPA submits that it is not a legislative purpose of the Act to invalidate an amendment to a development plan because of a failure to comply with any of the requirements of s 26 that have been relied upon by RJK. However, RPA acknowledge that injunctive relief might possibly be sought on the basis of unlawfulness in the processing of a DPA. However, RJK did not seek injunctive relief during the processing of the DPA.
[12] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
Ground 11.5 – the RPA submissions
RPA submit that the Minister is entitled to rely on departmental staff to prepare the DPA. Section 26(1)(a) requires that the person drafting the DPA is to base the document upon investigations. It is not necessary that the DPA expressly state the full scope of investigations that have been undertaken.
RPA submit that RJK carries the onus of proving that the investigations did not form the basis for the DPA. The evidence before the Court is not capable of satisfying that onus. There is no evidence that the draft version of the DPA did not have regard to the documents itemised by RJK in ground 11.5.1.
RPA further submit that as a matter of construction, s 26 does not require that all of the investigations that have been conducted form the basis of the DPA. That proposition would make it impossible to change planning policy should investigations lead to conflicting objectives. It is the task of the Minister to select an appropriate policy direction from amongst a number of potential, but possibly conflicting, options.
RPA note that RJK bases their case on the fact that of the seven documents that were required to be reviewed, four were not mentioned in the DPA. RPA submits that it was sufficient for the validity of the DPA if it was based on the remaining three documents. For these reasons, they submit that ground 11.5 should be rejected by the Court. There was either compliance with s 26(1)(a), or sufficient compliance.
Ground 11.6 – the RPA submission
RPA note that there is a reference at page 19 of the DPA to relevant policies and targets from the Planning Strategy and a statement that “[i]t is the intent of the DPA to support the achievement of the Planning Strategy policies and targets”. That material appears under the heading “Accords with the Planning Strategy”.
RPA submit that as it was considered that there was no conflict with the Planning Strategy, those observations were a sufficient assessment of the extent to which the proposed amendments accorded with the Planning Strategy. Further to that submission, RPA submit that the reliance placed by RJK on alleged conflict with P15, P17 and P22 in the Planning Strategy is misplaced. The purpose and effect of the 2019 amendments was to cure ambiguity in the previous version of PDC 21. That did not conflict with the identified policies.
RPA further submit that the terms of P15, P17 and P22 of the Planning Strategy were provided to the Minister with accompanying analysis. Thus, they submit that the complaints made by RJK about the alleged failure to comply with the Planning Strategy actually amount to a thinly veiled disagreement with the merits of the decision made by the Minister. For these several reasons, RPA submit that the challenge made by RJK in ground 11.6(a) should fail.

While the balancing of the various competing policy considerations expressed in the DP were matters of planning judgment to be decided by SCAP using its specialist expertise, the contention by RJK that SCAP must have misconstrued the DP fails to recognise the effect of the various provisions to which I have referred and the need to balance carefully the “pros” and “cons”.
For these reasons I do not accept the various contentions in grounds 9.1 to 9.5.2 that SCAP misconstrued the DP and failed to consider its express requirements.
Ground 9.5.3 complains that SCAP incorrectly had regard to what it described as “qualitative design policy” and several other matters that were irrelevant to the height of the building, namely its corner location, activation of the ground level, ESD performance, “the green landscape” and the amenity of residents who would live in the proposed development.[99]
[99] The intended meaning of the terms “activation of the ground level” and “ESD performance” was not explained in written or oral submissions. I infer that the former was intended to refer to the presence of the proposed café/dessert bar and perhaps other commercial premises on the ground floor street frontage of the development and that the latter means Environmentally Sustainable Design.
Although I have read through the Agenda Report many times, I cannot find the phrase “qualitative design policy” in that document. Even if I am mistaken, and the phrase does appear, the words used in the Agenda Report cannot be attributed to SCAP. In any event, the phrase “significantly higher standard of design outcome” in both Council Wide PDC 167 and CCZ PDC 16 seems to be more or less synonymous with the phrase attributed to SCAP by RJK as do the words “high level of design excellence” in Council Wide Objective 48. Moreover, CCZ PDC 21(c)(ii) lists five sustainable design measures, of which three must be satisfied, for an application to come within the ambit of CCZ PDC 21.
Thus, whether the proposed development displayed a “significantly higher standard of design outcome” and incorporated at least three sustainable design measures was directly relevant to the issue of excess height. I also consider that the references in the Agenda Report to the “green wall” and also the amenity of residents e.g. occurred specifically in the context of CCZ PDC 21(c)(ii).
Council Wide PDC 191 states that new development on major corner sites should define and reinforce the townscape importance of such sites with appropriately scaled buildings. It is a question of planning judgement as to what constitutes an “appropriately scaled building” on any particular corner site. In that context the Government Architect stated that she considered “the site to be prominent with landmark characteristics afforded by its parklands setting and elevated position. As such, in principle I support an approach for a building that exceeds the 22-metre height limit”.
Council Wide Objectives 50 and 51 and Council Wide PDC’s 196 and 197 call for “active street frontages”. For that reason, while not directly relevant to the question of excess height, the proposed café/dessert bar was relevant to the general planning merits of the application.
For the preceding reasons, I am not persuaded that the matters referred to in ground 9.5.3 were irrelevant considerations. Moreover, there is no basis for the Court to draw an inference as to how any references in the Agenda Report to these issues were taken into account by SCAP in reaching its decision. I dismiss ground 9.5.3 and the other sub- grounds listed under ground 9 although I have rejected ground 9.5.4 previously at [498].
Ground 10 – consideration
RJK contends in ground 10 that both the Variance Decision and the Consent Decision were legally unreasonable or irrational and relies upon the particulars specified for grounds 7, 7A, 8 and 9.
RJK contends in grounds 10.2 and 10.3 that if SCAP concluded that the proposed building was sympathetic to the anticipated city form expressed in the relevant Concept Plans and that it had regard to the context that forms the positive character of the locality, those decisions lacked an evident justification.
RJK further contend in ground 10.4 that the decision to grant consent for a building of 53.9 metres was unreasonable and/or lacked an evident justification having regard to the provisions of the DP.
Ground 10.5 alleges that SCAP wrongly proceeded on the basis that the proposed development had achieved an orderly transition from the Parklands to the Adelaide CBD core or, alternatively, up to an existing taller building or the prescribed maximum building height in an adjoining zone.
Ground 10.6 is in similar terms as it alleges that construction of the proposed development was contrary to the thrust of the DP and would prevent or frustrate the fulfillment of its objectives for an orderly transition from the adjoining CLZ to the buildings in areas to the west where the permissible maximum building height was 54 metres.
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation Lord Greene MR held that an administrative decision may be invalid if it is “so unreasonable that no reasonable authority could ever have come to it”.[100] The High Court reconsidered the operation of the Wednesbury unreasonableness principle in Minister for Immigration and Citizenship v Li.[101] Hayne, Kiefel and Bell JJ held that “[U]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[102]
[100] [1948] 1KB 223 at [234] (Somervell LJ and Singleton J agree).
[101] [2013] 249 CLR 332.
[102] Ibid [76].
It is of fundamental importance in the present context that the principles expressed by the Court of Appeal in Wednesbury and by the High Court in Li concerning the invalidity of an administrative decision on the grounds of legal unreasonableness must be applied with regard to the well-settled principles that apply to the application and interpretation of development plans. Accordingly, the broad discretion exercisable by a planning authority within the scope of a development plan must be properly recognised when determining whether a decision made by such a body may be invalidated under the Wednesbury and Li unreasonableness principle. I will not repeat what I have already said at [371] to [374] about the broad planning discretion exercisable by SCAP but the nature and extent of that discretion is of fundamental importance when considering the contentions advanced by RJK in support of ground 10.
The earlier discussion in relation to the various contentions advanced in support of grounds 7 and 7A makes clear that it was open to SCAP to decide the application for DPC in the exercise of its planning discretion. In other words, SCAP had to make an evaluative judgment of the planning merits of the application in light of all of the material placed before it, and not merely the Agenda Report, while having careful regard to the relevant provisions of the DP.
It is not necessary to repeat the discussion of the competing considerations, or “pros” and “cons”, that SCAP was required to balance in the exercise of its planning discretion. That discussion makes clear that it was clearly open to SCAP to approve the proposed development.
For that reason, I am satisfied that the decision of SCAP to approve the proposed development did not lack an evident justification and was not unreasonable in the Wednesbury or Li sense. I therefore dismiss ground 10 and each of the sub-grounds or particulars, i.e. grounds 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6.
I find that the proceedings were commenced within the period of six months allowed under r 200 of the Rules and as soon as reasonably practicable. I also find that the Minor Amendments DPA, the 2019 Amendments and the Interim Effect Decision were each validly approved by the Minister. I further find that the Variance Decision and the Consent Decision were each validly made by SCAP.
Conclusion
I find that the proceedings were commenced within the period of six months allowed under r 200 of the Rules and as soon as reasonably practicable. I also find that the Minor Amendments DPA, the 2019 Amendments and the Interim Effect Decision were each validly approved by the Minister. I further find that the Variance Decision and the Consent Decision were each validly made by SCAP.
Accordingly, I order as follows:
1.I dismiss the application by RJK for an order in the nature of certiorari quashing the decision made by the State Commission Assessment Panel as delegate of the State Planning Commission on 23 January 2020 that the development proposed by development application 020/A053/19 is not seriously at variance with the Adelaide (City) Development Plan.
2.I dismiss the application by the first applicant and the second applicant to grant an order in the nature of certiorari quashing the decision of the State Commission Assessment Panel as delegate of the State Planning Commission made on 23 January 2020 to grant development plan consent for the development proposed by development application 020/A053/19.
3.I dismiss the application for a declaration that the development plan consent granted by the State Commission Assessment Panel as delegate of the State Planning Commission on 23 January 2020 for the development proposed by development application 020/A053/19 is unlawful or invalid.
4.I dismiss the application for a declaration that no reasonable relevant authority, acting reasonably, could form an opinion under s 35(2) of the Development Act (1993) (SA) that the development proposed by development application 020/A053/19 is not seriously at variance with the Adelaide (City) Development Plan.
5.I dismiss the application for a declaration that in assessing the development proposed by development application 020/A053/19 against the Adelaide (City) Development Plan the State Commission Assessment Panel as delegate of the State Planning Commission must ignore and disregard the purported amendments of the said Plan by the Minister of Planning effected by the City of Adelaide Minor Amendments Development Plan Amendment as brought into interim effect on 25 July 2019.
APPENDIX
ADELAIDE (CITY) DEVELOPMENT PLAN
CONSOLIDATED AS AT 17 OCTOBER 2019
RELEVANT EXTRACTS
COUNCIL WIDE PROVISIONS
Objectives
Objective 46: Reinforcement of the city’s grid pattern of streets through:
(a) high rise development framing city boulevards, the Squares and Park Lands
(b) vibrant main streets of a more intimate scale that help bring the city to life
(c) unique and interesting laneways that provide a sense of enclosure and intimacy.
Objective 47: Buildings should be designed to:
(a) reinforce the desired character of the area as contemplated by the minimum and maximum building heights in the Zone and Policy Area provisions;
(b) maintain a sense of openness to the sky and daylight to public spaces, open space areas and existing buildings;
(c) contribute to pedestrian safety and comfort; and
(d) provide for a transition of building heights between Zone and Policy Areas where building height guidelines differ.
Objective 48: Development which incorporates a high level of design excellence in terms of scale, bulk, massing, materials, finishes, colours and architectural treatment.
Principles of Development Control
PDC 167     Where development significantly exceeds quantitative policy provisions, it should demonstrate a significantly higher standard of design outcome in relation to qualitative policy provisions including pedestrian and cyclist amenity, activation, sustainability and public realm and streetscape contribution.
169 The height and scale of development and the type of land use should reflect and respond to the role of the street it fronts as illustrated on Map Adel/1 (Overlay 1).
170 The height, scale and massing of buildings should reinforce:
(a) the desired character, built form, public environment and scale of the streetscape as contemplated within the Zone and Policy Area, and have regard to:
(i)      maintaining consistent parapet lines, floor levels, height and massing with existing buildings consistent with the areas desired character;
(ii)     reflecting the prevailing pattern of visual sub-division of neighbouring building frontages where frontages display a character pattern of vertical and horizontal sub-divisions; and
(iii)    avoiding massive unbroken facades.
(b) a comfortable proportion of human scale at street level by:
(i)      building ground level to the street frontage where zero set-backs prevail;
(ii)     breaking up the building facade into distinct elements;
(iii)    incorporating art work and wall and window detailing; and
(iv)    including attractive planting, seating and pedestrian shelter.
PDC 173 Development in a non-residential Zone that abuts land in a City Living Zone, the Adelaide Historic (Conservation) Zone or the North Adelaide Historic (Conservation) Zone, should provide a transition between high intensity development and the lower intensity development in the adjacent Zone by focussing taller elements away from the common Zone boundary.
PDC 191 New development on major corner sites should define and reinforce the townscape importance of these sites with appropriately scaled buildings that: (a) establish an architectural form on the corner; (b) abut the street frontage; and (c) address all street frontages.
PDC 270 Development located either abutting, straddling or within 20 metres of a Zone or Policy Area boundary should provide for a transition and reasonable gradation from the character desired from one to the other.
CITY LIVING ZONE
Introduction
The objective and principles of development control that follow apply in the City Living Zone shown in Maps Adel/20, 23 to 26 and 29 to 33. They are additional to those expressed for the whole of the Council area and in cases of apparent conflict, take precedence over the more general provisions. In the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Zone.
DESIRED CHARACTER
The Zone is spread across the southern half of Adelaide, flanked to the north by the City’s central business area. Mixed use apartment and commercial corridors frame much of the southern and western margins of the Zone which is also bisected by the Hutt Street main street strip, and corridors of core business areas centred on the Squares and the City’s main north-south axis roads, Morphett, King William and Pulteney Streets.
The Zone comprises Adelaide’s main residential living districts which have developed with a range of stand-alone and paired cottages, terrace or row housing, and low to medium scale contemporary apartment buildings, and with remnant workshops, service trades, offices and mixed uses, particularly west of Hutt Street.
The City Living Zone will provide high amenity residential living environments along with related nonresidential uses compatible with residential amenity, as articulated in the Policy Areas. Carefully executed high quality residential infill is envisaged and opportunities are presented for comprehensive redevelopment on larger, particularly non-residential sites, and also on catalyst sites fronting South Terrace and East Terrace. The desired increase in the City’s resident population relies, in part, on realising infill housing opportunities with high regard to their context and achieving overall, higher dwelling densities in this Zone.
OBJECTIVES
Objective 1:     A Zone comprising a range of dwelling types and tenures, including affordable housing.
Objective 2:     Increased dwelling densities in appropriate locations.
Objective 3:     Non-residential activities that support city living and amenity with minimal impact on the environmental quality or amenity of living conditions.
Objective 4:     Development having regard to the potential impacts of building height and activities from land in the adjoining zones
East Terrace Policy Area 29
Introduction
The desired character, objectives and principles of development control that follow apply to the Policy Area as shown on Maps Adel/51, 57 and 63. They are additional to those expressed for the Zone and in cases of apparent conflict, take precedence over the Zone provisions. In the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Policy Area.
DESIRED CHARACTER
The Policy Area will be developed in a manner which reinforces the existing character of grand buildings set on attractive, landscaped grounds in a Park Lands edge setting. Development will continue to provide a high level of amenity and with a mix of residential dwelling types and styles, including the continued development of residential flat buildings which are complementary in design to the many State and Local Heritage Places. Wakefield Street will continue to provide a mix of uses, either wholly residential or non-residential land uses on lower levels with residential at upper levels.
Development will continue to provide for substantial, high quality landscaped open spaces in order to frame East Terrace and provide a distinct edge to the City. Private properties will be defined by formal fencing which allows for views to, and an appreciation of, the distinctive garden setting and spacious character at-ground underpinned by the rhythm of front and side boundary setbacks.
Buildings will be massed vertically or comprise narrow frontage elements with generous front and side setbacks with building façades that are well articulated with finer details that contribute positively to the public realm and residential character.
Vehicle movement will be primarily for local and visitor traffic, although East Terrace will continue to act as a strong pedestrian and cyclist link between the City and the Park Lands.
Catalyst sites provide opportunities for integrated developments on large sites that respond to the development’s context and provide opportunities to increase the residential population of the City. Such sites will generally be developed for housing, but may include a small amount of non-residential development such as cafés, restaurants or small-scale shops that create a greater level of activity fronting the Park Lands. Non-residential developments that provide additional community services and facilities may also occur.
Developments on catalyst sites will exemplify quality contemporary design that is generally of greater intensity than their surroundings. However, development will be designed to carefully manage the interface with any residential development, particularly with regard to massing; proportions; overshadowing; and traffic and noise-related impacts.
PRINCIPLES OF DEVELOPMENT CONTROL
Catalyst Sites
PDC 10     Development on catalyst sites (sites greater than 1500 square metres, which may include one or more allotment) should include medium to high scale residential development.
PDC 11     Small-scale shops, cafés or restaurants on catalyst sites should generally be integrated with residential development and located at ground or first floor level to increase street level activity facing the Park Lands.
PDC 12     Catalyst sites should be developed to manage the interface with residential development with regard to intensity of use, overshadowing, massing, building proportions and traffic to minimise impacts on residential amenity.
PDC 13     Parts of a development on a catalyst site that exceed the prescribed maximum building height that applies to non-catalyst sites in the Policy Area, and that are directly adjacent to the Adelaide Historic (Conservation) Zone boundary 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.
PDC 14     The scale of development on a catalyst site should respond to its context, particularly the nature of the adjacent land uses and the interface treatments required to address impacts on sensitive uses.
PDC 15     Where there is an apparent conflict between the catalyst site principles and Zone, Policy Area or Council Wide objectives and principles (including the quantitative provisions) the catalyst site principles will take precedence.
CAPITAL CITY ZONE
Introduction
The Desired Character, Objectives and Principles of Development Control that follow apply in the whole of the Capital City Zone shown on Maps Adel/17 to 20, 23 to 26 and 29 to 31. They are additional to those expressed for the whole of the Council area and in cases of apparent conflict, take precedence over the more general provisions. In the assessment of development, the greatest weight is to be applied to satisfying the Desired Character for the Zone.
DESIRED CHARACTER
This Zone is the economic and cultural focus of the State and includes a range of employment, community, educational, tourism and entertainment facilities. It is anticipated that an increased population within the Zone will complement the range of opportunities and experiences provided in the City and increase its vibrancy.
The Zone will be active during the day, evening and late night. Licensed entertainment premises, nightclubs and bars are encouraged throughout the Zone, particularly where they are located above or below ground floor level to maintain street level activation during the day and evening.
High-scale development is envisaged in the Zone with high street walls that frame the streets. However an interesting pedestrian environment and human scale will be created at ground floor levels through careful building articulation and fenestration, frequent openings in building façades, verandahs, balconies, awnings and other features that provide weather protection.
In important pedestrian areas, buildings will be set back at higher levels above the street wall to provide views to the sky and create a comfortable pedestrian environment. In narrow streets and laneways the street setback above the street wall may be relatively shallow or non-existent to create intimate spaces through a greater sense of enclosure. In the Central Business Policy Areas, upper level setbacks are not envisaged.
Non-residential land uses at ground floor level that generate high levels of pedestrian activity such as shops, cafés and restaurants will occur throughout the Zone. Within the Central Business Policy Area, residential land uses at ground level are discouraged. At ground level, development will continue to provide visual interest after hours by being well lit and having no external shutters. Non-residential and / or residential land uses will face the street at the first floor level to contribute to street vibrancy.
New development will 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.
(b) Durable – by being fit for purpose, adaptable and long lasting, and carefully considers the existing development around it.
(c) Inclusive – by integrating landscape design to optimize pedestrian and cyclist usability, privacy, and equitable access, and also promote the provision of quality spaces integrated with the public realm that can be used for access and recreation and help optimize security and safety both internally and into the public realm, for occupants and visitors alike.
(d) Sustainable – by integrating sustainable systems into new buildings and the surrounding landscape design to improve environmental performance and minimise energy consumption.
(e) Amenable – by providing natural light and ventilation to habitable spaces.
Contemporary juxtapositions will provide new settings for heritage places. Innovative design is expected in areas of identified street character with an emphasis on contemporary architecture that responds to site context and broader streetscape, while supporting optimal site development. The addition of height, bulk and massing of new form should be given due consideration in the wider context of the proposed development
There will also be a rich display of art that is accessible to the public and contextually relevant.
Adelaide’s pattern of streets and squares
[Omitted]
OBJECTIVES
General
Objective 1:   The principal focus for the economic, social and political life of metropolitan Adelaide and the State.
Objective 2:   A vibrant mix of commercial, retail, professional services, hospitality, entertainment, educational facilities, and medium and high density living.
Objective 3:   Design and management of City living to ensure the compatibility of residential amenity with the essential commercial and leisure functions of the Zone.
Objective 4:   City streets that provide a comfortable pedestrian environment.
Objective 5:   Innovative design approaches and contemporary architecture that respond to a building’s context.
Objective 6:   Buildings that reinforce the gridded layout of Adelaide’s streets and respond to the underlying built-form framework of the City.
Objective 7:   Large sites developed to their full potential while ensuring a cohesive scale of development and responding to a building’s context.
Objective 8:   Development that contributes to the Desired Character of the Zone
PDC 16     Development 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.
PDC 21     Development 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.
PDC 22     Development 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.
PDC 23     Development 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.
PDC 25     Parts 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.

[2022] SASC 11

17 FEBRUARY 2022