Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor
[2010] SASCFC 15
•30 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LAKSHMANAN & ANOR v CITY OF NORWOOD, PAYNEHAM AND ST PETERS & ANOR
[2010] SASCFC 15
Judgment of The Full Court
(The Honourable Justice White, The Honourable Justice Layton and The Honourable Justice Kourakis)
30 July 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - FAILURE TO CONSIDER RELEVANT MATTERS
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL - ON APPLICATIONS FOR DEMOLITIONS
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - PROCEDURE
Appellants’ local heritage listed residence significantly damaged by flood – residence remains structurally sound – residence remains vulnerable to flooding events with predicted frequency of once in every 50 years – appellants do not wish to repair residence for fear of future flooding – PDC 172 of relevant development plan provides that Local Heritage Places not to be demolished unless portion to be demolished does not contribute to place’s heritage value, or place’s structural condition seriously unsound, and heritage impact statement prepared by expert – development plan establishes planning standard for acceptable flooding risk for new developments, which existing residence does not meet – first respondent refused appellants’ application for demolition approval – Environment, Resources and Development Court (ERD Court) upheld refusal without considering risk of future flooding to, or relative heritage value of the residence – whether risk of future flooding to residence a relevant consideration – whether relative heritage value of residence a relevant consideration – whether PDC 223 of development plan does not allow approval of demolition of Local Heritage Place without concurrent approval of construction of replacement development – whether appeal to ERD Court should have been dismissed for that reason – whether, if appeal allowed, application to be determined in this Court or remitted to ERD Court.
Held (by Kourakis J, White J agreeing): Appeal allowed – risk of future flooding to residence and relative value of residence as Local Heritage Place both relevant considerations – ERD Court erred in failing to have regard to those relevant considerations – apparent requirement of PDC 223 that demolition approval conditional on approval first being obtained for replacement development is, in substance, no approval at all – it would be unreasonable and ineffectual to impose such a condition – however, ERD Court had before it evidence of proposed replacement development – powers of ERD Court therefore allowed it to consider appeal against refusal of demolition approval – weight to be given relevant considerations not to be decided on appeal – matter remitted to ERD Court.
(by Layton J): Appeal allowed – although the dwelling is not presently ‘seriously unsound’ as described in PDC 172(b), there is a risk of future flooding – the application raises concern as to whether future risk of flooding is such that there is a significant risk of the dwelling becoming ‘seriously unsound’ – it is appropriate to consider the extent of that risk and whether good reason exists to depart from a literalist approach to PDC 172(b) – ERD Court therefore erred in excluding relevance of engineering evidence that was before it – issue of the relative heritage value of the dwelling only to be reviewed after condition in PDC 172(a) or (b) is fulfilled – matter remitted to ERD Court.
Development Act 1993 s 4, s 23(4), s 35, s 42, s 88; Environment, Resources and Development Court Act 1993 s 8, s 9, s 10, s 21, s 27, s 28, s 28C, s 30; Supreme Court Civil Rules 2006 r 286, referred to.
Ikkaj Pty Ltd v District Council of the Copper Coast (2010) 106 SASR 131; City of Mitcham v Freckmann (1999) 74 SASR 56; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329, applied.
Wakefield Regional Council v Evans [2010] SASC 68, not followed.
Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Evans v Wakefield Regional Council [2009] SASC 238, discussed.
Town of Gawler v Impact Investment Corporation (2007) 99 SASR 115, considered.
LAKSHMANAN & ANOR v CITY OF NORWOOD, PAYNEHAM AND ST PETERS & ANOR
[2010] SASCFC 15Full Court: White, Layton and Kourakis JJ
WHITE J: I agree with the orders proposed by Kourakis J and with his reasons.
LAYTON J: I have had the opportunity of reading the reasons for decision given by Kourakis J. I agree with the result that the appeal should be allowed and the matter remitted to the Environment, Resources and Development Court (“the Environment Court”) for determination of the demolition application on its merits. However, my reasons for so concluding differ from those given by Kourakis J.
I respectfully adopt the factual matters set forth in the judgment of Kourakis J as well as the description of the issues raised in paras [25] to [43] and also paras [59] to [69] in relation to the alternative contention. I also agree that the Environment Court erred in its approach as set out in paras [50] and [53] of its reasons for decision.[1] I view the error differently from that expressed by Kourakis J.
[1] Lakshmanan v City of Norwood, Payneham & St Peters [2009] SAERDC 22.
I consider that the Court erred in taking a literalist approach to the provisions of Principle of Development Control (PDC) 172 of the Development Plan, in particular 172(b), when concluding that the Court should not take into account the engineering evidence regarding the risk of flooding and its amelioration when assessing the application for demolition in the context of PDC 172. It was common ground that the house is presently not “seriously unsound and cannot be rehabilitated”. However, a prime question raised by the application was the extent of the risk of the dwelling becoming so unsound, because of its present state and future flooding. In my view the engineering evidence was relevant to the issue of whether the risk of flooding was sufficient to give rise to a departure from the strict wording and application of PDC 172(b).
This Court has reinforced on many occasions that the provisions of a Development Plan are not to be construed like a statute. It is a planning document couched in the language of planning objectives and principles, rather than that of a legal obligation. As Debelle J indicated in Telstra Corporation Ltd v City of Mitcham,[2] the plan uses language appropriate to the expression of goals and guiding principles rather than the expression of legal mandates. The authorities have also endorsed the observation of King CJ in the case of Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd,[3] when he stated:[4]
The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.
(Emphasis added.)
[2] Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509, 515-6 (Debelle J (Prior, Nyland, Williams and Martin JJ agreeing)).
[3] (1985) 38 SASR 161.
[4] (1985) 38 SASR 161, 187 (King CJ (O'Loughlin J agreeing)).
A starting point is a consideration of the goals and principles of the Development Plan in the context of the planning objectives in the Development Act 1993 (SA) (“the Development Act”).
In this case there are a number of aspects to be considered. Section 4 of the Development Act includes a definition of “local heritage place” stating that:
local heritage place means a place that is designated as a place of local heritage value by a Development Plan
Section 23(4) of the Development Act provides the criteria for designating a place as one of local heritage value in the relevant Development Plan. The section states:
(4)A Development Plan may designate a place as a place of local heritage value if—
(a) it displays historical, economic or social themes that are of importance to the local area; or
(b) it represents customs or ways of life that are characteristic of the local area; or
(c) it has played an important part in the lives of local residents; or
(d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or
(e) it is associated with a notable local personality or event; or
(f) it is a notable landmark in the area; or
(g) in the case of a tree (without limiting a preceding paragraph)—it is of special historical or social significance or importance within the local area.
In this case the dwelling was located within the Residential Zone as shown on map NPSP/10 of the Norwood, Payneham & St Peters (City) Development Plan. Further, the dwelling is listed in the Development Plan in table NPSP/6 where it is specifically described as a “Victorian stone dwelling” and it was listed as a “local heritage place of value” by reference to the criteria in s 23(4)(a), (b) and (d) of the Development Act.
In short, the designation of the dwelling as being a place of local heritage value was according to the Development Plan itself.
PDC 172 provides as follows:
172A Local Heritage Place should not be demolished or removed, in whole or in part, unless:
(a) that portion of the place to be demolished or removed does not contribute to the heritage value of the place; or
(b) it can be demonstrated that the structural condition of the place is seriously unsound and cannot be rehabilitated, which is verified by appropriate independent, qualified expert advice; and
(c) in either of the circumstances described above, a heritage impact statement has been prepared by an independent qualified heritage expert, reviewing the heritage values of the place and including an assessment of the proposed demolition or removal on the heritage value of the place.
PDC 172 is expressed in strong language. It uses the wording “should not be demolished or removed…”. Similarly, in 172(a) it requires satisfaction that the portion of the place to be demolished or removed, “does not contribute to the heritage value of the place”. Also, the expression “seriously unsound” in 172(b) indicates a high degree of unsoundness is required to be demonstrated.
By way of illustration, the wording of PDC 172 is more exacting in its requirement than a similar PDC considered recently by this Court in Ikkaj Pty Ltd v District Council of the Copper Coast.[5] PDC 4 of another development plan in that case stated:[6]
Demolition of buildings which contribute to the heritage character of the Policy Area should not be undertaken unless the item is proven to be structurally unsound and cannot be economically renovated.
[5] (2010) 106 SASR 131.
[6] (2010) 106 SASR 131, 141 [42] (White J (Layton J agreeing)).
By contrast, PDC 4 required proven “structural unsoundness” as distinct from demonstration that it is “seriously unsound”. Further, PDC 4 required it to be proven that it cannot be “economically renovated”, in comparison with “cannot be rehabilitated”, which makes no reference to the cost of rehabilitation. Therefore, the emphasis placed on preservation of a local heritage place in PDC 172 is of high order within the Development Plan.
Further PDCs of relevance in the Development Plan are PDCs 101 to 104, conveniently set out in the reasons of Kourakis J. Those PDCs identify “Indicative Floodplains” and refer to properties likely to be affected in a 20 and 50 year Average Recurrence Interval Flood for the First and Second Creeks. This dwelling is in an area located and marked “50 Year Average Recurrence Interval Flood Plain”. This characterisation and assessment of flood interval exposure of certain areas, is also contained within the Development Plan itself.
In respect of PDCs 101 to 104 the Environment Court correctly noted that these PDCs relate to new structures or extensions. However, I agree with the reasoning of Kourakis J that merely because they refer to compulsory requirements for new structures or extensions, this does not exclude that they have relevance and importance to existing dwellings in those areas.
The standards which are set for minimum height above sea level and the freeboard required for new developments, and the underlying research underpinning those minimum levels, have relevance to assessing the vulnerability of earlier built dwellings to risk of flooding if they are below those minimum standards.
One of the key concerns raised by this application for demolition is whether there is such a risk of future flooding of the dwelling that, notwithstanding the fact that it is not presently “seriously unsound”, there is a significant risk of it reaching that stage. It is already starting from a flood-damaged and uninhabited state.
In my view, in interpreting PDC 172 it is appropriate to consider the extent of that particular risk in this case and whether there is good reason to depart from a strict reading of PDC 172(b) on the basis of its prospective state. This, of course, is a matter of “planning judgment” as indicated by Bleby J in Town of Gawler v Impact Investment Corporation Pty Ltd,[7] recognising that this is not to be interpreted as a general gateway for other demolition applications either in that area or otherwise.
[7] (2007) 99 SASR 115, 132-133 [79]-[80].
For the above reasons, I consider that it was inappropriate for the Environment Court to have excluded the relevance of engineering evidence to the application before it. Such evidence is relevant to ascertaining whether a special reason did or did not exist to depart from a strict reading of PDC 172(b) in relation to the demolition of this dwelling.
With regard to the issue of heritage value, I take a different approach from that set forward in the reasons of Kourakis J.
In my view PDC 172 indicates a staged approach. First, the fulfilment of either 172(a) or 172(b), modified if necessary on the basis of special reason as discussed above. Then, consideration is required to be given to 172(c). Therefore, at the point when a decision is being made as to whether or not a building the subject of an application for demolition has reached the stage discussed in 172(b), the issue of its relative heritage value is not a relevant consideration. The local heritage value is a given situation.
PDC 172(c) only applies after 172(a) or (b) is fulfilled. It is at the point that the heritage value of the dwelling is reviewed.
For these reasons, I consider that the matter should be remitted to the Environment Court for the purpose of assessing, first, the issue of the extent of prospective unsoundness and whether or not it can be rehabilitated for the purpose of considering whether special reason exists to depart from the strict application of PDC 172(b). Thereafter, depending on the outcome of that assessment, the Environment Court is to consider the issue of its relative heritage listing as set out in PDC 172(c).
KOURAKIS J: The appellants are the proprietors of land at Osmond Terrace, Norwood. The land is situated close to the culverts which allow a small stream, known as First Creek, to run under Brown Street and Osmond Terrace as it flows from east to west. On the land is a Victorian stone house built in about 1882 (the residence). The house was built by a prominent Adelaide builder who was an early settler and was active in the church and community life of the Norwood area. The house is designated a Local Heritage Place in the Norwood, Payneham and St Peters Development Plan (the Development Plan).
The appellants purchased the land in 1989 and lived there until close to midnight on 7 November 2005 when heavy rains caused First Creek to flood. Floodwaters flowed into the appellants’ home. The residence suffered significant water and silt damage. The Metropolitan Fire Service was called out; holes were cut in the floorboards of the house in order to pump sludge from the under floor void. The cost of restoring the residence to the condition it was in before the flood is estimated to be $241,340. The appellants were insured. Their insurer has accepted liability under the policy and has indemnified them in accordance with the terms of that policy.
The appellants have not returned to the residence. In August 2006 they applied to the City of Norwood, Payneham and St Peters (the Council) for planning approval to demolish the residence (the demolition application). The Development Assessment Panel established by the Council (the Panel) declined to consider the application because it had sought approval only for the demolition of the residence without proposing a replacement dwelling. The Panel asked the appellants to apply for development approval for the construction of a replacement dwelling. On 20 December 2007 the appellants submitted a second application for development approval (the building application) which sought approval both for the demolition of the residence and for the construction of new dwellings; a home on the Osmond Terrace frontage of the land and two units on the Brown Street frontage.
On 18 June 2008 the Council refused the building application on the grounds that it was contrary to those provisions of the plan which encouraged the retention of Local Heritage Places. On the same day the appellants appealed against that decision to the Environment, Resources and Development Court (the Environment Court). That appeal has not yet been determined and has been adjourned pending the outcome of these proceedings. On 23 July 2008 the Council refused the demolition application. The Council refused approval for the same reasons as its refusal of the building application. On 4 August 2008 the appellants appealed against the refusal of their demolition application to the Environment Court. The Environment Court dismissed their appeal on 30 April 2009. It is that decision which the appellant now appeals to this Court.
The primary provision of the Development Plan on which the Council relies is City Wide Principle of Development Control 172 (Principle 172), which provides that Local Heritage Places should not be demolished unless they are structurally unsound. It is common ground that the residence is structurally sound. However, the appellants do not wish to repair and refurbish the existing dwelling because they are concerned about the risk of future flooding. It is also common ground that the floor level of the existing residence leaves it vulnerable to flooding events with a predicted frequency of once in every 50 years and perhaps more frequently due to local topographical features.
The Council accepts that Principle 172 is not mandatory; approval may be given for demolition of a Local Heritage Place which is structurally sound if there is good reason to do so. The primary issues on this appeal are whether the risk of future flooding and the relative value of the dwelling as a Local Heritage Place are relevant considerations and, if so, whether the Environment Court failed to have regard to them. In my view, the appellants’ contention that those two considerations are relevant should be accepted.
The Council puts the alternative contention that the appeal to the Environment Court against the refusal of the demolition application should have been dismissed in any event because of the failure to seek approval for a replacement dwelling. I accept that approval for demolition should not be given in the circumstances of this case unless an approval for a replacement dwelling has been obtained. However, the proper course for the Environment Court to adopt, if it were to find sufficient reason to depart from Principle 172 of the Development Plan, would be to invite an amendment of the application or to move to a consideration of the appeal against refusal of the building application. I would not uphold the alternative contention.
The matter should be remitted to the Environment Court for a determination of the demolition application on its merits conformably with these reasons.
My reasons for reaching these conclusions appear below.
Risk of flooding evidence
At a conference of experts, the following levels for the specified flood events and the consequences on the residence and a neighbouring property were included in an agreed memorandum which was later admitted into evidence:
·Under current conditions (i.e. with the new culvert works in place) the flood level at [the residence] and [the neighbouring property] is as follows for the various flood events listed:
1 in 20yr : 58.8 mAHD[8]
1 in 50 yr : 59.1 mAHD
1 in 100 yr : 59.3 mAHD
·By interpolating between these levels it was agreed that the current level of flood protection offered to [the residence] was just in excess of a 50 year ARI[9] event with no freeboard. (Floor level 59.12 mAHD)
·It was agreed that works could be carried out to provide a 100 year level of protection with 300 mm freeboard to the residence.[10] … These works to involve construction of solid masonary [sic] (or similar) fencing along the rear property boundary and the southern boundary to link with the existing retaining wall on this boundary. The experts could not agree on the cost of these works or whether they would be practical to implement.
·It was agreed that the floor levels proposed by GHD[11] for the new development at [the residence] would provide 300 mm freeboard to a 100 year ARI flood and that the development would not adversely affect flood levels on adjacent properties.
·The matters agreed between the hydrological experts mean that in a flood of slightly greater than 1 in 50 year recurrence, [the residence] will be inundated. Depending upon the circumstances, flood damage could also be sustained on [the residence] in an event of less than 1 in 50 year recurrence.
[8] The levels for the specified flood events are expressed by reference to AHD, which is the acronym for Australian Height Datum. Australian Height Datum is a system for expressing measurements of physical height in which the mean seal level around the coast of Australia in 1966-1968 was assigned the value of zero. A measurement of, for example, 59.12 mAHD means 59.12 metres above notional sea level.
[9] The acronym ARI stands for Average Recurrence Interval.
[10] Freeboard is a margin of safety added to the base flood elevation to account for uncertainties which may be occasioned by, for example, waves, debris, lack of data and miscalculation.
[11] GHD is the designer of the replacement dwellings.
Mr Schalk, a consulting engineer, gave the following evidence on the appropriate engineering response to the flooding risk agreed by the hydrologists:
Q.On engineering grounds, leaving aside heritage completely, what is the preferable engineering solution on those properties. Is it to demolish and rebuild at a higher level and leave the creek line as it is or is it to keep the buildings and bund the creek.
A.No, it would be the former.
On the other hand, a different response was urged by the planner who was called by the Council, Mr Burman. Mr Burman took the position that, on a proper application of the objects and principles of the Development Plan, approval to demolish the residence should not be given unless the predicted frequency of flooding was such as to leave the house unsound or uninhabitable.
Mr Burman expressed the view that a flooding risk frequency of one in 50 years was probably a reasonable occurrence with which people could live and continued:
One in 100 is an acceptable standard which is encouraged by the Development Plan for new development and I suppose that’s something that we should be striving for in the longer term with all our development. There is my understanding of flood mitigation studies that have been done across metropolitan Adelaide there are thousands of properties that would be affected by a 1 in 50 year flood or less and so that is an issue that because we live on the plains that’s a problem with the way we’ve treated our creek system over many, many years. There’s a lot of work being done to mitigate those problems and I think that to get it to a 1 in 50 year stage is a reasonable approach again balancing the issue of heritage with frequency of flooding.
Mr Burman expressed the opinion that the residence was “of a high local significance not of the lower end of local significance”.
On the demolition and replacement of the residence Mr Burman gave the following evidence:
Q.If that is the case, assume that that’s the case and it’s around the 50 ARI, in that case do you lean towards demolition being orderly and economic or not or towards the retention of the dwellings.
A.Absolutely towards the retention of buildings in that instance.
Relevant Principles of Development Control
Before turning to reasons of the Environment Court, it is convenient to set out the objectives and principles of the Development Plan which spoke most directly to the development proposed by the appellants. I first set out City Wide Principles of Development Control 101 to 104 (Principles 101 to 104), which are designed to ensure that development is undertaken with adequate flood protection:
101Development and associated works within the Kensington and Norwood Area shown on Map NPSP/1 (Overlay 1) adjacent First and Second Creeks should not adversely affect the level of flood waters on adjoining properties.
102No new structures or extensions to existing structures or portions thereof within the Kensington and Norwood Area shown on Map NPSP/1 (Overlay 1) should be constructed within any area along First Creek or Second Creek which is at or below the likely 1-in-20-year average recurrence interval floodplain shown on NPSP/1 (Overlay 5).
103The lowest floor level of all habitable spaces of development within the Kensington and Norwood Area shown on Map NPSP/1 (Overlay 1) should not be less than 300 millimetres higher than the likely 1-in-50-year average recurrence interval floodplain shown on Map NPSP/1 (Overlay 5).
104Development should not take place where:
(a)It is likely to be adversely affected by flooding or inundation;
(b) There is significant risk of the development causing flooding or aggravation of flooding of other land; or
(c) Within the St Peters and Payneham Areas shown on Map NPSP/1 (Overlay 1) information is available that a significant risk to life or property could result from flooding by a 100 year return period flood.
I next set out City Wide Objectives 83 to 85, which relate to heritage places:
Objective 83 Development that retains the heritage value of State and Local Heritage Places such that the heritage value of the place, locality and the Council area is reinforced through:
(a)the conservation and compatible development of such places; and
(b)the complementary development of land and sites adjacent to such places.
Objective 84 Development which conserves and reinforces the historic integrity of the Council area and is compatible with the desired character of the appropriate zone and policy area.
Objective 85 The continued use, or adaptive reuse, of State and Local Heritage Places that supports their ongoing retention and conservation.
Principle 172 protects Local Heritage Places from demolition in the following terms:
172A Local Heritage Place should not be demolished or removed, in whole or in part, unless:
(a) that portion of the place to be demolished or removed does not contribute to the heritage value of the place; or
(b) it can be demonstrated that the structural condition of the place is seriously unsound and cannot be rehabilitated, which is verified by appropriate independent, qualified expert advice; and
(c) in either of the circumstances described above, a heritage impact statement has been prepared by an independent qualified heritage expert, reviewing the heritage values of the place and including an assessment of the proposed demolition or removal on the heritage value of the place.
Reasons of the Environment Court
The Environment Court’s reasons for dismissing the appellants’ appeal appear in the following paragraphs:
[25]It is clear from the evidence of the hydrological experts that, purely from a risk management point of view, the demolition of the improvements on [the residence] and the redevelopment of the land with a dwelling or dwellings with a higher floor level would be the preferable option.
…
[50]PDC 172 clearly states that a local heritage place should not be demolished unless the matters in PDC (a) or (b) can be demonstrated, and they cannot. PDC 172 speaks clearly and directly against the approval of this application to demolish. It does so in the context of the other heritage provisions, which seek the retention of local heritage places. Those provisions of the Development Plan which set standards for buildings for flood protection apply only to new buildings. There are no provisions of the Development Plan applicable to this application which enable us to take into account:
• the engineering evidence regarding the risk of flooding of the dwelling in the future, or
• the engineering evidence regarding whether practical measures can be taken to ameliorate the risk of flooding to the dwelling, or
• the extent of the value of the dwelling as a heritage place.
[51]Given those parameters for assessment, we determine that the proposed development is contrary to the relevant provisions of the Development Plan to the extent that refusal of the application is warranted.
…
[53]Given the local heritage listing of the dwelling, we consider that refusal is warranted chiefly because of PDC 172 and the other provisions of the Development Plan which seek the retention of heritage places. We do not consider that there is any warrant in the Development Plan for bringing into the assessment of this application the engineering evidence about the extent to which the dwelling will be flood prone in future, the issues which arise if flood amelioration works are proposed, or the extent of the heritage value of the dwelling.[12]
[12] Lakshmanan v City of Norwood, Payneham & St Peters & Anor [2009] SAERDC 22 at [25], [50]-[51], [53].
The proposition in [50] of the reasons, that “there are no provisions of the Development Plan which allow us to take into account” the flooding risk and relative heritage importance of the residence, plainly implies that those considerations must therefore be ignored. That proposition, in my view, mistakenly limits the relevant considerations to which the Environment Court may have regard. A planning authority may, on occasion, have regard to planning considerations which are not stated in a Development Plan. In any event, in this case, certain implications which I would draw from the principles of the Development Plan required the Environment Court to give consideration to the flooding risk to, and the relative heritage value of, the residence in assessing the proposal to demolish it against Principle 172. I explain my reasons for the conclusions I have just expressed in the next section of these reasons.
Failure to take into account relevant considerations
It is well accepted that principles of development control are guidelines. An application for development must be assessed against those principles. On occasions, perhaps even commonly, developments will advance the objects of some parts of a development plan but be inconsistent with others. In that case, a planning judgment must be made as to the merits of the proposed development. Only if the development is seriously at variance with the Development Plan in the opinion of the planning authority is it necessary to refuse approval.[13]
[13] Development Act 1993 s 35(2).
In City of Mitcham v Freckmann,[14] Debelle J explained:
Once the relevant provisions of the Plan have been identified and the purpose and intent and desired character of the zone have been ascertained, the planning authority must proceed to assess the proposal by reference to those factors. The Development Act, like its predecessors the Planning & Development Act 1966-1967 and the Planning Act 1982, is a practical code calling for practical application. I respectfully adopt the remarks of Jacobs J in District Council of Munno Para v Remove-All Rubbish Co Pty Ltd (1985) 41 SASR 188 at 201:
… where the Development Plan neither permits nor prohibits a particular development, the task of the planning authority is to weigh up the ‘pros’ and ‘cons’ with due regard to the guidance afforded by such of the general planning precepts and policies in the Plan as may be relevant. But to suppose that the ‘pros’ and ‘cons’ are in watertight compartments, or that they do not overlap, is to ignore the complexity of the subject matter and the competing elements which have to be weighed in deciding where the planning balance lies.
In cases such as this, where the proposed development is neither a complying nor a non-complying development, that is to say, where the Plan neither permits nor prohibits the proposed development, the task of the planning authority is to weigh the benefits and detriments, in other words, to weigh ‘the pros and the cons’ of the proposed development by reference to the Plan. Ultimately, the planning authority must make a judgment whether the proposal will be permitted. If it is to grant the application, it must be satisfied that there are sufficient reasons for that decision, reasons which are based on acceptable principles of planning and the relevant provisions of the Plan. That judgment will have regard to the factors mentioned above. Thus, a proposed development might be approved if it is conducive to the objectives and desired character of the zone in which it is to be sited. It will be relatively easy in some cases to decide that the proposal is quite compatible with the amenity of the locality. In other cases, that test will be more difficult. It will be a question of fact and degree in every case, after weighing all relevant considerations, whether the proposed development should be approved.[15] (all emphasis added)
[14] (1999) 74 SASR 56.
[15] City of Mitcham v Freckmann (1999) 74 SASR 56 at 63 [19].
The emphasised parts of the above passage show that the assessment of the planning merits of a development is assessed “by reference to the Plan” and not by a mechanical application of its express provisions. It cannot be expected that the express provisions will speak directly to every conceivable development. A development may merit approval on balance even if it is not expressly supported by a particular provision, whilst another, perhaps more exceptionally, may not warrant approval even if it is not inconsistent with any of the Development Plan’s express provisions.
In Town of Gawler v Impact Investment Corporation Pty Ltd,[16] Bleby J explained that as a matter of “planning judgment” there may be good reason to approve a development notwithstanding some variance from the Development Plan.[17]
[16] (2007) 99 SASR 115.
[17] Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at 132-3 [79]-[80].
In my view, in the following passage from his judgment in Telstra Corporation Ltd v Corporation of the City of Mitcham,[18] Debelle J correctly identified that this approach is a necessary consequence of the text and structure of Development Plans:
A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates … [T]he Plan does not always use expressions in a consistent manner. Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan.[19] (citations omitted)
[18] (2001) 79 SASR 509.
[19] Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509 at 515-6 [25] per Debelle J, with whom Prior, Nyland, Williams and Martin JJ agreed.
There is no indication in the above passages that the “good reason” to depart from an express prohibition of a Development Plan is limited to a consideration arising from another competing provision of the Development Plan.
Even though Development Plans are generally comprehensive, they cannot be expected to expressly deal with all possible circumstances. There may be reasons arising from sound planning policy considerations or the general principle that development should not needlessly be curtailed which speak for or against approval but which are not expressly dealt with by the terms of a Development Plan.
In my view, there may be good reason not to apply a particular provision of a Development Plan if the departure from it is minor or if the departure will not materially compromise the planning objective which the provision is calculated to achieve. In either of those circumstances, there may be good reason not to burden the occupier of land with a restriction on his or her enjoyment of the land by a strict insistence on the provision. Moreover, an express prohibition on developments may, on occasion, so severely limit the use to which land can be put, through circumstances which were not foreseen at the time the provision was adopted, that good reason to depart from it may be found.
Be that as it may, the provisions of the Development Plan applicable here by implication suggest considerations which may amount to good reason to depart from Principle 172.
I accept that Principles 102 to 104 do not on their terms apply to an existing dwelling with the effect that, if it is renovated or extended, the whole of the dwelling must comply with their terms. However, those principles by implication establish a planning standard for what is an acceptable flooding risk for residential accommodation. On an application to demolish a Local Heritage Place, which in effect seeks a dispensation from Principle 172, that implied residential flooding standard is a relevant consideration. Moreover, the weight that consideration carries is greater in the circumstances which have occurred here. The planning choice presented by the appellants’ application is between expending resources on repairing a flood-damaged dwelling which will remain exposed to a greater risk of flooding than that which is considered acceptable by contemporary standards, or committing those resources to a dwelling or dwellings which meet those standards.
Once it is accepted that the flooding risk is a material consideration, it necessarily follows that the relative significance of the residence as a Local Heritage Place becomes relevant. Even though the flooding risk and the local heritage value are hardly commensurable, a planning judgment is called for as to which consideration should, as a matter of planning judgment, predominate. The degree of flooding risk which will constitute good reason to approve demolition will necessarily be higher the greater the heritage value of the place which is the subject of the development application.
An inquiry into the heritage value of a Local Heritage Place is not conducted by way of collateral challenge to the designation of the place by the Development Plan. To the contrary, the inquiry is undertaken for the purpose of determining the weight to be given to that listing. The inquiry is not much different to the assessment of the weight to be given to other competing principles of a Development Plan. In the case of a Local Heritage Place, an assessment of its relative heritage importance is necessary to determine whether to depart from the principles which protect it. The selection of a Local Heritage Place is necessarily a process of fact and degree. The listing itself is not challenged by inquiring where a particular place falls in the range of all Local Heritage Places which have qualified for listing.
The sentence which commences “Given those parameters” in [50] of the reasons of the Environment Court makes it plain that the Environment Court did in fact ignore the flooding risk to, and relative heritage value of, the residence.
It follows that the Environment Court has erred in law by failing to take into account relevant considerations.
Demolition without replacement
It will be remembered that this is an appeal from the decision of the Environment Court confirming the Council’s refusal of the appellants’ application for approval to demolish the residence. The application which sought approval for both demolition and the construction of a replacement dwelling was also appealed by the appellants, but that appeal is still pending before the Environment Court. The Council puts the alternative contention before this Court that this appeal should be dismissed because the Development Plan does not allow the approval of the demolition of a Local Heritage Place without a concurrent approval of the construction of its replacement.
The respondent relies on City Wide Objective 90 and City Wide Principle of Development Control 223 (Principle 223) of the Development Plan, both of which relate to demolition. City Wide Objective 90 states:
Objective 90: Where demolition of an existing dwelling is proposed, the replacement dwelling development designed and sited to achieve the objectives of the zone and to provide for a good quality of urban design.
Principle 223 then states:
223Except for documented reasons of public health or safety agreed by the appropriate authority, or alternatively required by statutory order, the demolition of any dwelling should not occur unless development approval for replacement development has been granted. Should the replacement development not be commenced within 12 months of the granting of the development approval, then landscaping of the site should be undertaken.
In construing the above objective and principle, it must be remembered that only Local Heritage Places require demolition approval. In my view, City Wide Objective 90 prescribes a planning policy applicable to a proposed replacement dwelling but does not directly touch on the question here in issue; that is, an application for demolition approval of a local heritage listed dwelling.
The second sentence of Principle 223 more naturally applies to cases in which construction of an approved replacement dwelling is delayed. It supports the imposition of a condition on the approval of the construction of a replacement dwelling on a site on which demolition is proposed or has already occurred. Such a condition could properly be imposed whether or not approval of the demolition of the existing building was required.
The first sentence of Principle 223, however, would not appear to have any application except when approval for demolition of a Local Heritage Place is sought because any other structure can be demolished without approval. There is therefore no mechanism by which the first sentence of Principle 223 can be enforced where approval for demolition is not required. It can be accepted that Principle 223 on its terms requires approval of a replacement development for a Local Heritage Place to be given only before actual demolition and not before the approval of that demolition. However, once demolition is approved it can be undertaken immediately unless restrained by a condition which requires the prior approval of the replacement development. It follows that in order to ensure that the purpose of Principle 223 is achieved, it would be necessary to make the approval to demolish a Local Heritage Place given in advance of the approval to construct a replacement dwelling, subject to the latter approval being given.
The Council contends that such a conditional approval is repugnant to the very nature of a development approval: an approval to demolish on condition that approval be obtained to construct a replacement is not an approval at all. The Council relies on an observation made by Wells J in The City of Unley v Claude Neon Ltd[20] concerning a condition which provided: “That no signs be erected or displayed without prior consent of the Council”. Wells J said:
A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the Authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.
The condition impugned by the respondents, however, is not of that description. It lacks finality; it is wanting in particularity; it does not define or limit in any way the acts of land use that are permitted. It, in effect, purports to reserve the right to pronounce on these matters when the question of erecting a sign is later raised. When it will be raised is unknown-speculative. It was, in 1978, impracticable to apply criteria that bore on the acceptability of any future sign at the time when the application was being considered. In short, to determine the question of granting or withholding consent by purporting to grant it subject to such a condition is not to reach a decision on the application at all. In my opinion, the condition is not one which it was within the power of the Council to impose; it was not imposed in furtherance of the objects of the Act, and does not lie naturally within the structure of its administrative or curial procedures. It is, in my opinion, null and void.[21]
[20] (1983) 32 SASR 329.
[21] Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332.
In the circumstances of this case, to approve demolition of the residence on the condition that approval first be obtained for the replacement dwelling is, in substance, no approval at all.[22] Notwithstanding the wide terms of s 42 of the Development Act 1993, it would be an unreasonable and ineffectual exercise of the power it confers to impose such a condition.
[22] Indeed in some cases it may be inappropriate to approve a demolition before approving a replacement development because the nature of the proposed replacement dwelling may, in itself, be relevant to the merits of the demolition proposal.
However, it does not follow that the appeal to the Environment Court should have been dismissed for this reason. The appeal to the Environment Court should not have been dismissed because that Court had before it evidence of the proposed replacement development. The Environment Court must act according to equity, good conscience and the substantial merits of the case, without regard to legal technicalities and forms,[23] and may make binding declarations of right.[24] The Environment Court may make alternative orders to the one sought by an applicant.[25] Pursuant to s 88 of the Development Act 1993, the Environment Court may confirm, vary or reverse any decision to which the proceedings before it relate. On an appeal against refusal of a development authorisation, the Environment Court may proceed to hear the application for development authorisation de novo.[26]
[23] Environment Resources and Development Court Act 1993 s 21(1).
[24] Environment Resources and Development Court Act 1993 s 28.
[25] Environment Resources and Development Court Act 1993 s 28C.
[26] Development Act 1993 s 88.
In my view, these powers are ample to allow the Environment Court either to deal with the approval of the replacement dwellings on the appeal against the demolition application or to amalgamate that appeal within the appellants’ appeal against the refusal of the building application.
Accordingly, I reject the Council’s alternative contention.
Appropriate orders
The failure of the Environment Court to have regard to the flooding risk to, and the relative heritage value of, the residence are errors of law which necessarily vitiate its decision. This Court may, pursuant to Rule 286[27] of the Supreme Court Rules 2006, amend or set aside the judgment the subject of the appeal and give any judgment that the justice of the case requires, or remit the case for rehearing or reconsideration conformably with the law.
[27] Before 1 January 2010 Rule 286 was numbered Rule 292.
There are many factors which may influence the discretion of this Court to select between these alternative remedies. However, relevantly to this appeal, the very subject matter of the appeal and the nature of the Court from which it is brought are considerations of great weight. The grant of development approval is essentially an administrative act depending largely on the application of planning policy. The Environment Court, in hearing merits appeals, exercises judicial power, but its constituting statute equips it with powers,[28] and officers,[29] well fitted to the special jurisdiction it exercises. The Environment Court over many years has developed a special expertise in the assessment of development applications against the applicable Development Plans. Factual errors made in that assessment can only be appealed with permission.[30]
[28] See [67] above and Environment Resources and Development Court Act 1993 s 27.
[29] Environment Resources and Development Court Act 1993 ss 8-10.
[30] Environment Resources and Development Court Act 1993 s 30(2).
The abovementioned considerations necessarily call for an approach to Rule 286(3) of the Supreme Court Rules 2006 on appeals from the Environment Court which differs from the approach of this Court to civil and criminal appeals generally. Those considerations explain the observations made by White J in Wakefield Regional Council v Evans[31] concerning the general rule of this Court to remit matters to the Environment Court after the correction of errors of principle.[32] In that case, which was an appeal against my decision in Evans v Wakefield Shire Council,[33] Gray and Sulan JJ took issue with my use of the phrase “the usual practice” in the following passage:
It will be apparent from my reasons that in my opinion there are strong grounds for approving [the development] application. It is nonetheless appropriate to adopt the usual practice and to allow the final planning judgment to be made by the Environment Court. I allow the appeal and remit the matter to the Environment Court for consideration conformably with these reasons.[34]
[31] [2010] SASC 68.
[32] Wakefield Regional Council v Evans [2010] SASC 68 at [96]-[97].
[33] [2009] SASC 238.
[34] Evans v Wakefield Regional Council [2009] SASC 238 at [45].
What I meant by that paragraph was no more than what White J said on appeal; that the general practice of this Court is to refrain from determining any views about the merits of a development application if the approval or refusal of that application involves issues of fact and degree because those are matters which are properly determined by the Environment Court in its specialist planning jurisdiction.[35]
[35] Wakefield Regional Council v Evans [2010] SASC 68 at [95].
Of course, there may be cases in which the decision of this Court on the matter of principle so obviously determines the way in which the controversy over the planning merits must be decided that this Court can and should finally dispose of the matter. There may also be other reasons associated with the history of the litigation which require that course to be taken.[36] However, I would respectfully disagree with the implication in the reasons of Gray and Sulan JJ in Wakefield Regional Council v Evans at [37] that there are no special considerations in planning appeals which militate in favour of remittal.
[36] Wakefield Regional Council v Evans [2010] SASC 68 at [98].
Conclusion
It is not obvious to me how the planning merits of the appellants’ application should be judged. The weight to be given to the relevant considerations of the risk of future flooding and the relative value of the dwelling as a Local Heritage Place should not be decided by this Court on an appeal on a question of law only. These are planning matters about which there are reasonable arguments on both sides and which the Environment Court is in the best position to determine. I would therefore remit the matter to the Environment Court.
If the Environment Court were to decide that demolition of the residence should be approved so as to allow the construction of the replacement dwellings, it can proceed as it sees fit to ensure compliance with Principle 223.
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