Lester Land Holdings Pty Ltd v The Development Assessment Commission

[2020] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

LESTER LAND HOLDINGS PTY LTD & ORS v THE DEVELOPMENT ASSESSMENT COMMISSION & ANOR

[2020] SASC 170

Judgment of The Honourable Justice Parker

15 September 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

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

This is an application for judicial review of a decision made by the first defendant on 21 January 2016 to grant development plan consent under s 33(2) of the Development Act 1993 (SA) in favour of the second defendant for the proposed development of land located at the south-east corner of the junction of North Terrace and West Terrace. The first and second plaintiffs are respectively the owners of land located on West Terrace and North Terrace immediately adjacent to the site of the proposed development.

The site of the proposed development is occupied by the Newmarket Hotel (Hotel), a heritage listed place pursuant to the Heritage Places Act 1993 (SA). The Hotel consists of a three-storey stone structure and a number of outbuildings associated with that structure. The proposed development relates to the demolition of the outbuildings associated with the three-storey structure, conservation of the Hotel and construction of two towers comprising a ground floor and 24 upper floors consisting of retail, consulting rooms and residential apartments, supported by basement car parking.

The plaintiffs submit that in reaching its decision to grant development plan consent, the first defendant incorrectly classified the development as a Category 1 development for the purposes of s 38 of the Development Act. The plaintiffs submit that the proposed development is non-complying and a Category 3 development, therefore, the first defendant failed to comply with the mandatory notification provisions in s 38(5) of the Development Act.

The plaintiffs submit that upon receipt of additional information and plans from the second defendant which were not before the first defendant at its initial meeting considering the development application on 17 December 2015, the first defendant failed to comply with its statutory duty to refer the matter back to the delegate of the Minister contrary to reg 27(1) of the Development Regulations 2008 (SA).

The plaintiffs submit that certain conditions attached to the first defendant’s decision to grant development plan consent are impermissible and have the effect of invalidating the development plan consent.

The plaintiffs submit that the first defendant failed to exercise jurisdiction, failed to take into account a relevant mandatory matter or acted unreasonably by failing to assess the development plan application against Principle of Development Control 67 of the Council Wide provisions in the Adelaide (City) Development Plan (Development Plan) as required by s 33(1)(a) of the Development Act.

The plaintiffs contend that the first defendant exceeded its jurisdiction and acted unlawfully by failing to determine that the proposed development is hypothetical.

The plaintiffs allege on the following grounds that the first defendant’s decision to grant development plan consent was legally unreasonable by:

1.  assessing the proposed development as being compliant with the set-back provisions of the Development Plan;

2.  imposing conditions attached to the development plan consent;

3.  failing to obtain certain information in relation to specific conditions imposed before determining whether to grant planning consent;

4.  unreasonably assessing the impact of the colours and materials of the proposed building on the remaining heritage listed part of the Hotel;

5.  approving the development and/or failing to assess the proposed development as involving a serious or substantial variance from certain provisions of the Development Plan;

6.  failing to take into account the effect of the proposed development on an approved hotel building on adjoining land;

7.  failing to comply with its statutory referral obligations relating to the receipt of additional material from the second defendant;

8.  taking into account an irrelevant consideration; and

9.  failing to take into account relevant considerations.

Held, per Parker J, allowing the application:

1.  The development application was correctly categorised as a Category 1 development.

2.  The first defendant failed to discharge its statutory duty to refer the matter back to the delegate of the Minister contrary to reg 27(1) of the Development Regulations and failed to provide the Minister with all necessary information prior to the initial meeting held by the first defendant. However, the Court’s discretion to refuse relief is exercised in relation to this ground on the basis that the first defendant’s failure to discharge its statutory duty would not have altered the outcome of the decision.

3.  The conditions attached to the first defendant’s decision to grant development plan consent are valid.

4.  The proposed development is not hypothetical.

5. The decision made by the first defendant was not legally unreasonable in the sense of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 or Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

6.  The first defendant did not fail to apply the relevant principles of the Development Plan in considering the height of the proposed development.

7. Contrary to s 33(1)(a) of the Development Act, the first defendant failed to have regard to the set-back requirement in Principle of Development Control 67 of the Council Wide provisions of the Development Plan.

8.  An order in the nature of certiorari is to be made quashing the development plan consent granted on 21 January 2016.

Airports (Protection of Airspace) Regulations 1996 (Cth) reg 14; Airports Act 1996 (Cth) ss 7, 181, 182 and 183; Development Act 1993 (SA) ss 4, 10, 20, 33, 35 37, 38, 44 and 57; Development Regulations 2008 (SA) regs 24(1), 27, 107, sch 5, sch 8, sch 10; Heritage Places Act 1993 (SA) s 3, sch 1; South Australian Heritage Act 1978 (SA), referred to.
Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446; Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LEGERA 190; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Stead v State Government Insurance Commission (2000) 204 CLR 82; Zweck v Town of Gawler (2015) 124 SASR 319, applied.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Hackney Hotel Pty Ltd v Town of St Peters (1984) 36 SASR 265; Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, distinguished.
City of Mitcham v Freckman (1999) 74 SASRR 65; City of Unley v Claude Neon Ltd (1983) 32 SASR 329; Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7; Ilic v City of Adelaide (2010) 107 SASR 139; Independent Holdings Limited v City of Adelaide Planning Commission [1994] SASC 5061; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Rhylyn v District Council of Willunga [1994] SASC 4919; Scott v Wollongong City Council (1992) 75 LGRA 112; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, discussed.
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; City of Mitcham v Heathhill Nominees Pty Ltd (2006) 76 SASR 133; Farah v Warringah Council [2006] NSWLEC 191; Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; Lakshmanan v City of Norwood, Payneham and St Peters [2010] SASCFC 15; McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539; Opal Inn Pty Ltd v District Council of Coober Pedy (2001) 115 LGERA 40; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557; Walsh v Parramatta City Council (2007) 161 LGERA 118, considered.

LESTER LAND HOLDINGS PTY LTD & ORS v THE DEVELOPMENT ASSESSMENT COMMISSION & ANOR
[2020] SASC 170

Civil:  Application for Judicial Review

1. PARKER J:         This is an application for judicial review in which the plaintiffs seeks orders in the nature of certiorari and prohibition relating to the grant of development plan consent by the first defendant in favour of the second defendant.  The plaintiffs also seek a declaration in respect of the same issue. 

2. For the reasons that follow, I will make an order in the nature of certiorari quashing the development plan consent granted by the Development Assessment Commission (DAC) on 21 January 2016. I do so on the basis that I am satisfied on the balance of probabilities that DAC failed to consider the set‑back requirement in Principle of Development Control (PDC) 67 of the Council Wide provisions in the Adelaide (City) Development Plan (the DP) (as consolidated on 24 September 2015) as required by s 33(1)(a) of the Development Act 1993.

   Relief sought

3. The plaintiffs contend that the grant of planning consent by DAC was invalid and of no force and effect on several grounds.  Those grounds are:

   ·DAC failed to take into account a relevant matter and misconceived the nature of the proposed development;

   ·The proposed development is non-complying and a Category 3 development that was incorrectly treated by DAC as a Category 2 development, so that there was a failure to comply with the mandatory notification provisions in s 38(5) of the Development Act;[1]

   ·DAC failed to comply with the referral obligations under s 37 of the Development Act;

   ·Several of the conditions imposed upon the planning consent by DAC have the effect of invalidating its decision. Additionally, the purported reservation of a matter for further assessment under s 33(3) of the Development Act was beyond the power held by DAC; and

   ·The decision of DAC to grant planning consent was legally unreasonable and in excess of its power by reason of any of, or a combination of, several matters.

   [1]    While the plaintiffs referred to a Category 2 development in both versions of their statement of grounds, their written submissions referred to Category 1. The departmental report to DAC referred to Category 1, as did the oral submissions of the second defendant. I proceed on the basis that it was classified as a Category 1 development.

4. On these grounds, the plaintiffs seek the following remedies:

   ·A declaration that:

   o   the planning consent is invalid and of no effect;

   o   the proposed development is for a non-complying form of development;

   o   the proposed development is a Category 3 form of development; and

   o   the proposed development is hypothetical;

   ·An order in the nature of certiorari quashing the planning consent;

   ·An order in the nature of prohibition preventing DAC from granting to the second defendant development approval for the proposed development pursuant to s 33(4) of the Development Act in reliance upon the planning consent; and

   ·Costs.

   Delay in delivering judgment

5. The trial of this matter was conducted over five days in August and September 2017.  After judgment was reserved, the parties requested that the Court not proceed to deliver judgment because they were negotiating and were confident that the matter could be settled.  Thereafter, over the next two years, the Court was informed that the parties remained confident of settlement.  Ultimately, at a directions hearing in August 2019 the parties confirmed that they were unable to reach a settlement and requested that the Court proceed to deliver judgment. 

6. In preparing this judgment I am very conscious of the time elapsed since the trial.  During the course of the trial, I made detailed annotations upon the plans in accordance with the oral evidence and submissions. I have refreshed my memory by referring to those annotations, my notes and also the notes taken by my associate. I have also read the transcript comprising almost 500 pages, the numerous documents received into evidence and the written submissions of the parties. I have also frequently re-read key passages in the transcript and documents. The need to undertake this substantial body of work after a long interval has unavoidably further delayed the delivery of judgment. 

   The decision maker

7. The first defendant to these proceedings is the Development Assessment Commission (DAC).  However, the actual decision maker was the Inner Metropolitan Development Assessment Commission (IMDAC). For the reasons that follow, the delegation of power by DAC to IMDAC is required by the Development Act and by the Development Regulations 2008 (SA). 

8. Section 16(1)(a) of the Development Act requires that a statutory body must establish such committees as the regulations may require.  The term “statutory body”, inter alia, includes DAC. Section 20(2)(b) requires that a delegation must be made in prescribed circumstances to a committee or sub-committee of DAC, established by the regulations. Regulation 107(2) requires that DAC must establish IMDAC to act as its delegate to determine applications for which DAC is the relevant authority under cl 4B or 4C of Schedule 10 of the Regulations.

9. Clause 4B of Schedule 10 to the Regulations requires that developments of a total value exceeding $10 million in the area of the City of Adelaide must be referred to IMDAC. For that reason, IMDAC acted as the delegate of DAC to decide the subject application.

10. Because IMDAC decided the matter as a delegate of DAC, and thus the first defendant has been correctly identified as DAC, I have generally referred in these reasons to DAC, rather than IMDAC, as the decision maker. That is consistent with the approach generally adopted by counsel for the parties and also in the correspondence received into evidence.  However, at some points, it has been necessary to distinguish between DAC and IMDAC.

11. Regulation 107(2a) provides for the membership of IMDAC. Each relevant local council must nominate a list of three members from their Development Assessment Panel and one person from each list is appointed to IMDAC by the Minister. In practice, only a member nominated by the relevant local council, in this case the City of Adelaide, will sit with other IMDAC members to determine an application. The Court was informed that the City of Adelaide nominee is very experienced in planning and development matters and had been for many years a Commissioner of the Environment Resources and Development Court (ERD Court). Each of the other members appointed to IMDAC by the Minister is also a member of DAC. Given the criteria for appointment to DAC set out in s 10(3) of the Development Act, counsel for the second defendant submitted that the Court should accept that each of the members of IMDAC was competent to read and understand site plans, floor plans and the like. That submission was not controverted by the other parties.

    Background

12. On 21 January 2016, the first defendant, the Development Assessment Commission (DAC) granted development plan consent under s 33(2) of the Development Act 1993 (SA) to the second defendant (One North Terrace) for the proposed development of land located at the south-east corner of the junction of North Terrace and West Terrace. The land is variously described as being located at 1 North Terrace or 1 - 9 West Terrace. This site has been occupied by the Newmarket Hotel (the Hotel) since the mid-19^th Century.[2] There is a heritage listing in force under s 18 of the Heritage Places Act 1993 (SA). The owner of the subject land is Azure Realty Pty Ltd. That company is not a party to these proceedings.

    [2]    The present building erected in 1883 replaced a structure dating from early colonial times.

13. The Hotel includes a three-storey stone building with substantial frontages to North Terrace and West Terrace.  This three-storey structure was erected in 1883. Certain outbuildings have long been closely associated with the three‑storey structure.  The proposed demolition of those structures is an important issue in these proceedings.

14. On both the North Terrace and West Terrace sides of the three-storey building there are structures apparently erected in the 1970s or 1980s that the defendants propose to demolish.[3] These relatively recent structures are clearly distinct from the outbuildings referred to in the preceding paragraph. It is arguable that all structures affixed to the subject land prior to provisional heritage listing in 1981, or final listing in 1982, are covered by the listing as it does not exclude any structures.[4] However, there has been no suggestion by any of the parties, or in the evidence of Mr Jason Schulz, a specialist in heritage matters who provided advice to the second defendant in support of its development application, that the relatively recent additions have any heritage value even if it were established that one or both pre-dated heritage listing. The observations I made at the view left me with no doubt about the lack of heritage significance of these relatively recent additions.

    [3]    On the southern side of the land facing West Terrace is a building that formerly contained a nightclub while on the eastern side facing North Terrace is an extension to the main Hotel. 

    [4]    This is in contrast to some other listings recorded in Table Adel/1 in the DP.

15. The proposed development has been described by the DAC as the “partial demolition of a State Heritage Place and conversion to a hotel; construction of a mixed used development comprising retail, consulting rooms and residential apartments, supported by basement car parking”. 

16. In the proposed development the heritage listed Hotel building will be retained at the junction of North Terrace and West Terrace. The parts of the Hotel that are not to be demolished are to be restored in accordance with heritage principles and integrated into the new structure. The restored Hotel will comprise a bar and café lounge on the ground floor with eight function rooms on the upper two floors. 

17. The proposed new building will consist of two towers comprising a ground floor and 24 upper floors to a height of 81.1 m above ground level. That height equates to 116.6 AHD.[5]  The ground floor will include what is described as a “market place” facing West Terrace and a convenience store facing North Terrace together with various service facilities such as a large transformer, waste disposal areas and so forth. The first floor will comprise what are described as “consulting offices”. Levels 2 to 23, and also the Loft level, will comprise apartments of various sizes and layouts ranging from studio style to three-bedroom apartments. Each apartment will include a balcony.

    [5]    Australian Height Datum.  According to information published on the website of Geoscience Australia (a Commonwealth agency) at the AHD was adopted in 1971 and means “the datum to which all vertical control for mapping was to be referred”. The base level represents the approximate mean sea level around Australia as measured at tide stations between 1966 and 1968.

1. The new building will include a podium adjacent to the Hotel building.  From level 5 upwards the building will comprise two separate towers although they will be linked by a bridge at levels 19 to 22. A roof terrace with a swimming pool, sauna and barbecue area will be located on level 3 for the use of all residents.

2. The first and second plaintiffs are respectively the owners of land located on West Terrace and North Terrace immediately adjacent to the site of the proposed development.  The third plaintiff is a director of the first and second plaintiffs. The first plaintiff received development consent on 28 May 2015 to construct a 15-storey hotel with a café and conference facilities on its West Terrace land immediately to the south of the subject land.

   The Development Plan

3. The following provisions of the DP, as consolidated on 24 September 2015, are relevant to the parties’ submissions.  Before referring to those provisions, I note that the proposed development is in the Capital City Zone.

4. The Preface to the DP includes the following statement under the heading “City Form”:

   This Development Plan reinforces the City’s structure:

   ·    The Capital City Zone will be the focus of high-rise development in the City and includes significant employment, cultural, education, entertainment and retail land uses, supported by an increase in City residents. Development will be predominantly mixed use, well-designed and contemporary. Adaptive reuse of heritage buildings and contextually responsive contemporary buildings will complement each other and provide new settings for a vibrant and dynamic street life.

5. Objective 22 appears under the heading “Medium to High Scale Residential/Serviced Apartment” in the Council Wide provisions.  Objective 22 provides as follows:

   Objective 22:    Medium to high scale residential (including student accommodation) or serviced apartment development that:

   (a) has a high standard of amenity and environmental performance;

   (b) comprises functional internal layouts;

   (c) is adaptable to meet a variety of accommodation and living needs; and

   (d) includes well-designed and functional recreation and storage areas.

6. PDC 66 and 67 appear in the Council Wide provisions under the heading “Visual Privacy”.  PDC 66 and 67 provide as follows:

   66.Medium to high-scale residential or serviced apartment developments should be designed and sited to minimise the potential overlooking of habitable rooms such as bedrooms and living areas of adjacent development. 

   67.A habitable room window, balcony, roof garden, terrace or deck should be set-back from boundaries with adjacent sites at least three metres to provide an adequate level of amenity and privacy and to not restrict the reasonable development of adjacent sites.

7. The following objectives appear under the heading “Heritage and Conservation” in the Council Wide provisions:

   Objective 42: Acknowledge the diversity of Adelaide’s cultural heritage from pre‑European occupation to current time through the conservation of heritage places and retention of their heritage value.

   Objective 43: Development that retains the heritage value and setting of a heritage place and its built form contribution to the locality.

   Objective 44: Continued use or adaptive reuse of the land, buildings and structures comprising a heritage place.

   Objective 45: Recognition of Aboriginal sites, items and areas which are of social, archaeological, cultural, mythological or anthropological significance.

8. The following PDC’s in the Council Wide provisions have been identified by counsel as relevant to the heritage aspects of the proposed development:

   137 Development affecting a State heritage place (Table Adel/1), Local heritage place (Table Adel/2), Local heritage place (Townscape) (Table Adel/3) or Local heritage place (City Significance) (Table Adel/4), including:

   (a)     adaptation to a new use;

   (b)     additional construction;

   (c)     part demolition;

   (d)     alterations; or

   (e)     conservation works;

   should facilitate its continued or adaptive use, and utilise materials, finishes, setbacks, scale and other built form qualities that are complementary to the heritage place.

   …

   140Development on land adjacent to a heritage place in non-residential Zones or Policy Areas should incorporate design elements, including where it comprises an innovative contemporary design, that:

   (a)     utilise materials, finishes, and other built form qualities that complement the adjacent heritage place; and

   (b)     is located no closer to the primary street frontage than the adjacent heritage place.

   141Development in the City Living Zone or the Adelaide Historic (Conservation) Zone on land adjacent to a heritage place should incorporate design elements that complement the heritage place with regard to the following:

   (a)     the wall height and silhouette of the heritage place as well as the scale of elements comprising the principal facades;

   (b)     the frontage of land containing the heritage place, boundary setbacks to the sides and street face(s) of the place and the nature of vehicular and pedestrian egress;

   (c)     the nature of fencing, walling and gates to boundaries;

   (d)     the materials and finishes; and

   (e)     location of alterations (other than the conservation of heritage fabric) and additional construction behind the street face(s) of the heritage place, without necessarily replicating historical detailing.

9. The introduction to the Capital City Zone states as follows:

   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.

10. Under the heading “Desired Character” of the Capital City Zone the following observations are included:

    …

    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.

    …

    Exemplary and outstanding building design is desired in recognition of the location as South Australia’s capital.  Contemporary juxtapositions will provide new settings for heritage places.  Innovative forms are expected in areas of identified street character, referencing the past, but with emphasis on modern design-based responses that support optimal site development.

11. The following PDC’s have been adopted for the Capital City Zone under the heading of “Building Height”:

    19Development should generally be compatible with the overall desired city form and not exceed the maximum building height shown in Concept Plan Figures CC/1 and 2; unless it meets one or more of the following:

    (a)     the proposed building is located in one of the following areas:

    (i)fronting North Terrace, West Terrace or East Terrace and/or at the junction of two City boulevards shown in Concept Plan Figures CC/1 and 2;

    (ii)on an allotment with frontage to Light Square;

    (iii)within 200 metres of a high concentration public transport route identified on Map Adel/1 (Overlay 4);

    (b)     the site area is greater than 1500 square metres and has side or rear vehicle access;

    (c)     the development provides an orderly transition up to an existing taller building or prescribed maximum building height in an adjoining Zone or Policy Area;

    (d)     the proposal incorporates the retention and conservation of a character building.

    20Development 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 Areas, 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.

    The maximum building height shown in Concept Plan Figure CC/1 for the area of the Adelaide City Zone in which the proposed development is located is 43 m.

12. PDC 36 for the Adelaide City Zone specifies that the total demolition of a State Heritage Place (as identified in table Adel/1) is a non-complying development.  The latter table includes an entry for the Newmarket Hotel. 

    Legal principles applicable to development plans

13. Against that background it is necessary to refer to the legal principles governing the interpretation and application of development plans. It is clear that a development plan does not operate in the same way as a statute. In City of Mitcham v Freckman, Debelle J described the role of a planning authority as exercising an unfettered discretion within the ambit, scope and purpose of the Development Act, the Development Regulations and the Development Plan.[6]  That observation was referred to with approval by Doyle CJ in Town of Gawler v Impact Investment Corporation Pty Ltd.[7] 

    [6] (1999) 74 SASR 56 at [21].

    [7] (2007) 99 SASR 115 at [27].

14. In Freckman, Debelle J made the following further observations:[8]

    [18]Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan. That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provision in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely that it might merit planning approval. In addition, as was noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may be occasions when the planning authority must resolve inconsistencies within the Development Plan. Those inconsistencies will often be resolved by considering the desired character and amenity of the zone.

    [8] (1999) 74 SASR 56 at [18].

15. In similar vein, in Alexandrina Council v Strath Hub Pty Ltd, Bleby J observed that:[9]

    Considering a development plan as a flexible, advisory planning policy document and as a practical guide for practical application, and not as a mandatory legal statute, is an acceptable and sensible way of approaching a development plan.  However, it does not enable the objective and the essential principles of development control to be ignored simply because the view is taken that the objective of the plan is unlikely to be achieved for various reasons. 

    [9] (2003) 129 LGERA 389 at [35].

16. That observation was also referred to with approval by Doyle CJ in Impact Investment.[10]  The principles enunciated by Doyle CJ and by Debelle and Bleby JJ must be applied in this case.

    [10] (2007) 99 SASR 115 at [30].

    Decision making by a committee

17. There is no document recording the basis upon which DAC reached its decision on 21 January 2016 or the matters that it took into account.  The minutes of the DAC meeting simply record the formal decision made by DAC. The decision notification form (DNF) sent to the second defendant is to the same effect. The question therefore is whether it is permissible to draw inferences as to the basis for the DAC decision. 

    The plaintiffs’ submissions

18. In their written submission, the plaintiffs contend that, in the absence of evidence to the contrary, it may be inferred that DAC proceeded on the basis identified in the agenda item report prepared by staff of the Department for Planning, Transport and Infrastructure (DPTI). That submission relied upon the judgments of Wootten J in Dunlop v Woollahra Municipal Council[11] and Pearlman CJ in Hospital Action Group Association Inc v Hastings Municipal Council.[12]However, in oral submissions, counsel for the plaintiffs contended that it is necessary for the Court to consider all evidence before drawing an inference as to what was the intention and basis for the DAC decision.  The plaintiffs further submit that, after consideration of the evidence, the Court should conclude that DAC failed to understand and apply the provisions of the DP concerning the maximum building height. 

    [11] [1975] 2 NSWLR 446.

    [12] (1993) 80 LGERA 190.

19. The plaintiffs also contend that acceptance of the submissions made by the first defendant would effectively make decisions of DAC almost unreviewable. 

    The second defendant’s submissions

20. Counsel for the second defendant largely deferred to the submissions advanced by the first defendant concerning the review of decisions made by a collective body, such as DAC.  The primary point advanced by the second defendant is that the Court should not lightly infer that DAC failed to have regard to material put before it.  The fact that some of the departmental advice was not correct should not lead to a conclusion that DAC accepted and applied that incorrect advice.  The second defendant further submitted that even if DAC had made a factual error, of itself, that did not indicate jurisdictional error.  The second defendant supported the latter submission by reference to the judgment of Preston J of the NSW Land and Environment Court in Walsh v Parramatta City Council.[13]

    [13] (2007) 161 LGERA 118 at [54]-[56], [62]-[63].

    The first defendant’s submissions

21. The first defendant submitted that it is not sufficient for the plaintiffs to point to an error in the DPTI advice and then submit that this error must have informed the decision of DAC.  The first defendant also submitted that the decisions in Dunlop and Hospital Action Group do not support the contention advanced by the plaintiffs in their written submission that, in the absence of contrary evidence, an inference may be drawn that DAC acted on the basis of the DPTI report.

22. The first defendant submitted that it cannot be assumed that even a Minister will merely adopt advice without considering the matter personally.[14]  The first defendant also submitted that the position of a council, being an elected and non‑specialist body, is quite different to that of DAC.  Counsel submitted that the observation made by Wootten J in Dunlop that

    reports of council officers, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis of council resolutions, and, therefore, supply a basis for attributing to the council the intentions, purposes, motives, beliefs and state of mind revealed therein must be considered in the context of the particular facts.[15] 

    [14] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [66] (McHugh J).

    [15] [1975] 2 NSWLR 446 at 485.

23. In Dunlop the deputy town clerk and the chief planning officer had submitted reports to the council’s town planning committee. Subject to a minor variation, the committee adopted the recommendations of the planning officer, which had been provided as draft resolutions.  Later that evening, the council adopted the committee’s resolution.  Neither the committee nor the council were composed of experts.  The inferences drawn by Wootten J were made as a matter of fact rather than law. 

24. Pearlman CJ in Hospital Action Group commented on the observation made by Wootten J as follows:[16]

    If this passage is intended to be authority for a proposition that inferences can be made as to the council’s state of mind from material which was actually before the council, in the absence of contrary evidence, then it is an unexceptional statement. …

    But if this passage is intended to establish that the onus of proof which lies on the challenger is far from difficult, then it runs counter to the authorities I have earlier mentioned.  The challenger is required to establish the state of mind of a body of persons.  Whilst the court should not shirk from its duty to draw inferences as to that state of mind, it can only do so from objective evidence, which makes the task of the challenger a difficult one.

    [16] (1993) 80 LGERA 190 at 195.

25. The first defendant submits that DAC is in quite a different position to the local councils that were the subject of the proceedings in Dunlop and Hospital Action Group.  Because of the significant differences between DAC and those councils, it is not appropriate for the Court to infer that DAC had adopted the reasoning expressed in the DPTI report.  The basis for that submission has several limbs, which are as follows. 

26. First, DAC (and IMDAC) is an expert body whose members have wide expertise.  DAC has a statutory responsibility to make planning decisions in respect of those matters assigned to it under the Development Act. When exercising that power, DAC is not subject to ministerial direction (see s 11(2)).  DAC may make use of public service staff (s 17(3)).  However, DAC is required to make the planning decision itself unless it has delegated that function under s 20.  Thus, the members of DAC will apply their own expertise and judgment in reaching the decision.  The reasons for making a particular decision will inevitably differ amongst DAC members but the majority view will prevail.

27. Secondly, the first defendant submits that it cannot be assumed that a reasoning process employed by a departmental advisor will necessarily have been applied by DAC simply because DAC comes to the same conclusion.  Development plans establish guiding principles.  A planning judgment must be made in light of all relevant provisions in a development plan.[17]  While the assessment process conducted by DAC requires the application of expertise, rather than the exercise of an unfettered discretion, reasonable minds may differ as to the appropriate outcome.  In that light, the view expressed in the DPTI report would have been understood by DAC members to be simply the expression of an opinion.  Thus, DAC frequently decides matters contrary to DPTI recommendations.

    [17] City of Mitcham v Freckman (1999) 74 SASR 56 at [18]-[21] (Debelle J).

1. Even if DAC reaches the same conclusion as the recommendation in a DPTI report, that does not mean that DAC necessarily adopted the reasoning in the report.  In fact, individual DAC members may disagree with the reasoning contained in a report, and disagree with other members, but may agree in the final decision for a variety of reasons.

2. The third contention advanced by the first defendant is that the report provided by DPTI has no particular status or function under the Development Act.  Of itself, the report does not affect rights nor is it a necessary precondition to the making of a decision.  DAC could have lawfully made the decision without receiving such a report. 

3. The fourth proposition advanced by the first defendant is that DAC had before it the reports and submissions supplied by the applicant and also other material.  Mr Hegarty has stated that he was questioned by DAC members about aspects of the proposal.  Thus, DAC was actively involved in the assessment of the proposal. 

4. Fifthly, the first defendant submits that the passages in the DPTI report concerning the proposed height of the development, which have been criticised by the plaintiffs, are mainly a summary of the contentions advanced by the applicant.  DPTI was not entitled to omit key submissions made by the applicant.  In fact, the first defendant submits that the report is largely explanatory as it summarised the key features of the proposal and the submissions and comments that had been made.  It was quite clear in the report where an opinion was being expressed by the author.

5. The sixth proposition advanced by the first defendant is that the fact that a party cannot identify the reasoning process applied by DAC cannot mean in law that its reasoning must be inferred by default from a particular report.  That would clearly be a non sequitur.  Thus, for example, the DAC members may not have adopted a common reasoning process.  The onus lies on the plaintiffs to establish that an irrelevant consideration was taken into account by DAC.  As Pearlman CJ observed in the Hospital Action Group case, that burden is difficult to discharge.

   Consideration

6. In several cases Debelle J found that an inference could be drawn that a planning authority had failed to consider a particular matter.  In Mar Mina (SA) Pty Ltd v City of Marion the issue was whether the development assessment panel had considered if a proposed development was seriously at variance with the development plan as required by s 35(2) of the Development Act.[18]  The council planning officer had submitted a report to the panel.  Debelle J noted that in Upham v The Grand Hotel (SA) Pty Ltd the Full Court had observed that because a planning authority does not give detailed reasons for its decision, the Court “must decide an attack on validity on the grounds of relevance by considering the material before the relevant authority, and the decision made”.[19]  Debelle J found in Mar Mina that the planner’s report had failed to direct the attention of the panel to the question whether the application was seriously at variance with the development plan.  His Honour therefore held that it was reasonable to infer that the panel had failed to consider this issue.[20]

   [18] (2008) 163 LGERA 24.

   [19] Ibid at [45], quoting Upham v The Grand Hotel (SA)Pty Ltd (1999) 74 SASR 557 at [157] (Doyle CJ and Bleby J with Wicks J agreeing).

   [20] Ibid at [45].

7. The issue in Rhylyn v District Council of Willunga was also whether the council had considered the seriously at variance question.[21]  A planning officer had provided a brief report recommending that the application be approved.  The “seriously at variance” issue was not mentioned in the report.  The application was first considered by a committee of the council.  The committee proceed on the basis that all proposals would be approved as recommended by the planning officer unless a member required that a particular application be discussed.  If so, that application would be separately considered and resolved.  The committee adopted the recommendation of the planner and referred the matter to the council.  Later that evening the council adopted the recommendation of the committee.

   [21] [1994] SASC 4919.

8. Debelle J held that it was reasonable to infer, in the absence of any evidence as to what had occurred at the meetings, that the application had not been discussed by the council other than to adopt the recommendation of the planning officer and the committee.  Debelle J noted that the plaintiff carried the burden of proof and had discharged that burden.  In view of his Honour, there was an irresistible inference that neither the committee nor the council had addressed their minds to the question of whether the proposal was seriously at variance with the development plan.  However, while the council had failed to discharge its duty under the Development Act, Debelle J declined to grant relief on discretionary grounds as the departure from the development plan was minimal.

9. The question of “seriously at variance” was also in issue in Hayes v Development Assessment Commission (No 4).[22]DAC had instructed a planner to prepare a planning report.  His Honour observed “it would be unrealistic to suppose that the commission failed to have regard to the report which it had itself commissioned”.[23]  As the report did not refer to the “seriously at variance” issue, Debelle J found that DAC had failed to have regard to that matter.

   [22] (1997) 95 LGERA 7.

   [23] Ibid at 30.

10. The issue before the High Court in Kentucky Fried Chicken Pty Ltd v Gantidis was that a tribunal had stated its conclusions and not its reasons.[24]  The High Court held that the failure of the tribunal to mention the matters that had been raised before it did not justify an inference that it had failed to have regard to those matters.  For the reasons stated at [345] to [352] below, I regard the present case as being distinguishable from Gantidis.

    [24] (1979) 140 CLR 675.

11. I respectfully agree with the observations made by Pearlman CJ in Hospital Action Group concerning the view expressed by Wootten J in Dunlop and also more generally.  I accept that the plaintiffs face a difficult task in establishing the collective state of mind of a body of persons such as DAC.  While the Court is entitled to draw inferences as to the reasoning of DAC, those inferences must be based upon the objective evidence.  I accept the submission by the first defendant that DAC (and also IMDAC) is an expert body whose members have wide and relevant expertise that was not necessarily present amongst the council members who were the decision makers in many of the authorities dealing with collective decisions on planning issues. That provides a basis to distinguish Mar Mina.

12. I also accept the submission of the first defendant that it cannot be assumed that a reasoning process contained in a departmental report will necessarily have been adopted by DAC, even where it comes to the same conclusion.  I also accept that a report provided by DPTI to DAC has no statutory status or function.  In fact, DAC would be perfectly entitled to make a decision without having been provided with a report by DPTI, although the provision of a competent report should greatly assist DAC and enable it to more efficiently use members’ time.

13. While Mr Hegarty has stated that he was questioned by DAC members about aspects of the proposed development, his evidence indicates that the questioning did not deal with either the height issue or the setback issue. The handwritten notes of two public servants, Mr Peter Wells and Mr Jason Bailey, who were present at the DAC meeting on 17 December 2015, make no mention of any questioning about the height or set-back issues.  However, for the reasons given at [347] I do not rely on their failure to mention this issue.

14. I also accept the correctness of the sixth proposition advanced by the first defendant that merely because a party cannot identify the precise reasoning process followed by an expert body, such as DAC, does not mean that its reasoning must be inferred from the DPTI report.  Having said that, I also consider that the totality of the evidence may enable an inference to be drawn as to whether or not a particular matter was taken into account by DAC.  That is apparent from the three decisions made by Debelle J to which I have referred. The evidence will include the report provided by DPTI and also the information supplied by the party seeking development plan consent.  While it is not an easy task for a plaintiff to persuade a court that a collective decision making body has erred in circumstances where it was not required to provide reasons for its decision, the task is by no means impossible.

    The evidence of Mr Schulz

15. Mr Jason Schulz, of DASH Architects, was called by the second defendant. Mr Schulz is an architect with particular expertise concerning heritage buildings and issues. He had prepared what he described as a Heritage Impact Assessment in support of the defendant’s application to DAC. He also prepared an expert witness report for use in these proceedings.

16. Although the plaintiffs elected not to call an expert witness on heritage issues, the expert report prepared by Mr Schulz was, to a large extent, compiled in response to an expert report that had been prepared by Mr Sam Hosking on instructions from the plaintiffs. While Mr Hosking’s report was not tendered as evidence, the response to that report by Mr Schulz was an important part of the latter’s evidence.

17. Mr Schulz stated in his Heritage Impact Assessment that the project architects had indicated that they had designed the proposed new building to complement rather than compete with the heritage building.  In support of that contention, Mr Schulz pointed to several features that were intended to “establish a design and contextual relationship with the heritage place”.  Mr Schulz also noted that the precinct in the vicinity of the Hotel was undergoing extensive redevelopment with high-rise buildings that included the new Royal Adelaide Hospital, the South Australian Health and Medical Research Institute and other health and university buildings. Mr Schulz suggested that the proposed development needed to be considered in that context. 

18. The focus of submissions concerning the heritage issue was the proposed demolition of certain structures located at the rear of the three-storey building.  These structures comprise a two-storey wing that adjoins the southern wall of the three‑storey building, another structure that was originally the hotel stables and a single yard wall that was the continuation of one of the walls of the stable. 

19. Mr Schulz noted that in the absence of any definitive plans or photographs showing the rear of the Hotel prior to 1900, he could not be certain as to the date of construction of the two-storey southern wing.  However, based on his inspection, he considered that the wing most likely dated from the time of construction of the main building.  He considered that the two-storey wing could not be described as a standalone building in its own right.  He also considered that the stables had been most likely built when the main Hotel was constructed.  He also considered that the wall of the stable or yard had been constructed at the same time as the stable and Hotel and had originally connected the two buildings.  Mr Schulz based his opinion on photographs dating from, and plans taken or prepared from, 1928 onwards and his inspection of the premises.  He also had regard to information contained in an objection to heritage registration lodged by the owner of the Hotel in 1982 and the evaluation conducted by a historian prior to the grant of heritage status.

20. In answer to the question whether the stables, the yard and the side wing were standalone buildings at the time of the provisional heritage listing in May 1981, Mr Schulz stated that these structures were interconnected at that time.

21. Mr Schulz agreed with an observation by Mr Hosking that a structure that connected the stables to the side wing was of no heritage value. Its removal would increase understanding and presentation of both the stables and the side wing. 

22. Mr Schulz also agreed with the suggestion by Mr Hosking that the stable yard had been modified to create a connecting upper level space between the upper level of the side wing and the upper level of the stables.  Mr Schulz noted that this modification was apparent in plans prepared in 1928 and 1939.  While Mr Schulz disagreed with the approach adopted by Mr Hosking to the use of certain extrinsic material, he agreed with his conclusion that the second floor addition was of no heritage value. 

23. Mr Schulz stated in his Heritage Impact Assessment that, in his opinion, the side wing, stables and yard wall were covered by the heritage listing.  He noted that the only significance of these structures from a heritage perspective was that they were part of an outstanding representation of a hotel dating from 1883 in the City of Adelaide.  On the other hand, he noted that these heritage values were not particularly uncommon and there were many hotels in the City of Adelaide dating from the 1880s on the Heritage Register. 

24. Mr Schulz concluded that while the three “out-structures” were of some heritage value they were of medium to low significance and integrity.  These structures were representative of only one aspect of the multi-faceted significance of the site and were not, in themselves, rare or uncommon.  Although the removal of the three out-structures would have a negative impact on the heritage values of the Hotel, other aspects of the proposed development would have a positive impact.  These included the proposed internal conservation and restoration works, in particular the central spiral staircase and skylight; the removal of the “later unsympathetic fit-out”; and repair and conservation of the building facades, including reconstruction of facades previously removed. 

25. Mr Schulz also observed that the proposed development would see a reinvestment in the historical Hotel, not only financially but also socially and culturally.  The proposed redevelopment would substantially redress the decline in economic activity in this corner of the city over the past 100 years.  Mr Schulz also made several recommendations concerning conditions that might be attached to the grant of development consent.

    Destruction or partial destruction of a heritage place

26. The Hotel was listed on an interim basis as a heritage place on 14 May 1981 under the former South Australian Heritage Act 1978. The interim entry was confirmed on 6 May 1982. That entry remains in force by virtue of the transitional provisions contained in Schedule 1 to the Heritage Places Act 1993 (SA).

27. The registered place has been described in the Heritage Register as the “Newmarket Hotel” and further identified by reference to the Certificate of Title for the subject land.  The entry in the Heritage Register does not make any specific reference to the buildings on the site. That minimalist approach to the description of the registered place assumed significance in these proceedings because of the scope of the proposed demolition work. 

    The plaintiffs’ submissions

28. The plaintiffs submit that DAC incorrectly failed to classify the development as non-complying. If that had occurred, it would have been assigned to Category 3. The consequence of that alleged failure is said to be that the approval given by DAC must be quashed in accordance with the decision of the High Court in City of Enfield v Development Assessment Commission.[25]

    [25] (2000) 199 CLR 135.

29. The plaintiffs rely on the PDC 36 in the Capital City Zone of the DP as consolidated on 24 September 2015.  As previously noted, PDC 36 states that the “total demolition of a State Heritage Place (as identified in table Adel/1)” is a non-complying development.  The relevant entry in Table Adel/1 simply states that the Newmarket Hotel is a State Heritage Place.

30. The plaintiffs further observe that the term “place” is defined in s 3 of the Heritage Places Act to mean, amongst other things “any building, structure or other work” and to include any part of a place.

31. The plaintiffs contend that the development proposal is for the total demolition of the several distinct structures comprising the two-storey wing, the stables and the wall that are themselves heritage places as defined.  Thus, the plaintiffs submit that the proper construction of PDC 36 is that it applies to the proposed demolition. 

32. In the plaintiffs’ submission, the application of PDC 36 is not avoided merely because only some of the structures within the Heritage Place are to be totally demolished.  While there is currently some degree of physical connection between the structures in question, they are each separately identifiable and therefore each is a structure which is a “Heritage Place”.  That fact was said by the plaintiffs to have been recognised by Mr Peter Wells, the Principal Conservation Architect with the State Government, and the delegate of the Minister for Sustainability, Environment and Conservation (the Minister), in his report to DAC dated 1 December 2015.

33. The plaintiffs further submit that the effect of the approach propounded by the second defendant is that even if the main hotel building were to be totally demolished, this would not be a non-complying development if some structure was to remain on the land.  The plaintiffs urge the Court to reject such an interpretation on the basis that the mere fact that some structures may remain on the land does not avoid classification as a non-complying development where other heritage listed structures on the land are to be totally demolished.

34. The plaintiffs contend that, because the development involves the total demolition of a heritage place, it is non-complying and should have been treated as a Category 3 development for the purposes of s 38 of the Development Act. In accordance with s 38(3), the incorrect assignment to Category 1 had the result that DAC, as the relevant authority, was prohibited from seeking, on its own initiative, the views of the owners or occupiers of adjacent land concerning the grant or refusal of development planning consent. In addition, adjacent land owners, such as the first and second plaintiffs, were denied any appeal right as a result of the assignment to Category 1.

    The defendants’ submissions

35. The defendants submit that the words “total demolition” in PDC 36 mean precisely that.  It is not permissible to introduce into the concept of a “State Heritage Place” within the meaning of PDC 36, part of a State Heritage Place.  The effect of the submission advanced by the plaintiffs is that the total demolition of a State Heritage Place also incorporates the total demolition of part of a State Heritage Place.

36. The defendants submit that Table Adel/1 identifies the listed place as the Newmarket Hotel.  Thus, PDC 36 is concerned with the Newmarket Hotel rather than various “bits and pieces”.

37. The defendants submit that what they propose is a partial demolition or modification of the Heritage Place, not its total demolition.  The purpose of the extension of the definition of “place” in the Heritage Places Act to any part of a place is to ensure that part of a place may be registered under the Act.  That is because there will be many places that are partly of heritage significance and partly not.  Thus, the definition of a “place” has been drafted so as to permit the registration of only that part of the place that is of heritage significance. 

38. In the submission of the defendants the preceding drafting issue has nothing to do with the proper construction of PDC 36.  It was a matter for the Council to identify in its development plan what it wanted to make non-complying.  Even if the listing under the Heritage Places Act is regarded as being relevant, the listing under that Act simply refers to the “Newmarket Hotel”. Thus, there is no support for the contention by the plaintiffs that there are a number of separate items covered by the heritage listing and that demolition of any one of them would trigger the application of PDC 36.

1. The second defendant also submits that it is not necessary to distort the language and statement of principle in PDC 36 in order to protect heritage buildings.  The second defendant referred to the judgment of Bleby J in City of Mitcham v Heathhill Nominees Pty Ltd.[26]Bleby J observed that the effect of classifying a development as non-complying is that a dissatisfied developer loses the right of appeal that would otherwise be available.  His Honour expressed the view that the Court should be slow to construe the principles of development control in a development plan as removing the right of appeal where the principles permit an interpretation which preserves that right.  While Bleby J was in the minority in the Full Court, the second defendant submitted that his observations on this point were very helpful. 

   [26] (2006) 76 SASR 133 at [47].

2. The second defendant submits that, consistently with the observation made by Bleby J, the language of PDC 36 should not be distorted so as to make partial demolition of a single State Heritage Place a non-complying development where the language used in PDC 36 is clearly addressing total demolition. The defendants also submit that demolition has always been subject to a merit assessment. Additionally, the proposed demolition will be referred to the Minister as occurred in this case. The Minister would be entitled to advise the planning authority that the development should not be approved. If the authority proposed to ignore that advice, then Schedule 8 of the Development Regulations would require concurrence.

3. The defendants also submit that the listing of the Newmarket Hotel as a single entity for the purposes of PDC 36 and also its listing as a State Heritage Place was entirely rational.  Well before heritage listing and the introduction of the Development Plan by the City of Adelaide, the Hotel had become a single complex made up of multiple parts.  That fact was established by the evidence of Mr Schulz.  The southern two-storey wing was an integral part of the original Hotel building.  While the stables and courtyard wall were originally separate buildings well before registration of the site as a heritage place and the introduction of the Development Plan, these structures had been integrated into the one complex of buildings as a result of the erection of various additional structures that appeared in the plans prepared in 1928 and 1939.  For these reasons, the defendants submit that the listing of the Hotel as a State Heritage Place and its inclusion in table Adel/1 applied to a whole complex of buildings that existed when those events occurred.  Thus, any development that fell short of total demolition would be assessed as a merit application with the proponent being required to persuade DAC and the Heritage Branch that the development was appropriate.  Accordingly, the defendants submit that because the project was not non-complying it was correctly classified as a Category 1 development.

   Consideration

4. The definition of a “place” contained in s 3(1) of the Heritage Places Act is expressed in very wide terms.[27]  The definition provides that a “place” means:

   [27] The private heritage architect called by the second defendant, Mr Schulz, stated in evidence that the more recent practice is to identify heritage places with greater precision. If that approach is applied carefully, it would hopefully avoid the issue that arose in this case concerning the extent of the structures covered by heritage protection.

   (a)     any site or area, with or without improvements;

   (b)     any land;

   (c)     any building, structure or other work, whether temporary or permanent or moveable or immovable (including an item or thing that is permanently fixed or moored);

   (d)     any other location, item or thing that constitutes a place within the State,

   and includes—

   (e)     any fixtures or fittings;

   (f)      any land where a place is situated;

   (g)     any subsurface area;

   (h)     any part of a place;

5. The term “State Heritage Place” is also defined in s 3(1) to mean:

   (a)     a place entered, either as a provisional or confirmed entry, in the Register under Part 4; or

   (b)     a place within an area established as a State Heritage Area; or

   (c) a place taken to be entered in the Register under Schedule 1 (as enacted on the commencement of this Act);

6. It is quite clear from the use of the words “a State Heritage Place (as identified in table Adel/1)” that PDC 36 operates by reference to the list of places included in the Table Adel/1 rather than on the basis of status under the Heritage Places Act, even though each of the places listed is a State Heritage Place.  I therefore consider that PDC 36 must be interpreted on its own terms rather than by reference to the definitions contained in the Heritage Places Act. For that reason, I do not consider that the fact that the term “place” is defined in s 3(1) of the Act to include part of a place has the result contended for by the plaintiffs.

7. Even if I am wrong in reaching that conclusion, I accept the correctness of the submission by the defendants that the definition of “place” in the Heritage Places Act has been drafted to include part of a place to enable the Act to be applied appropriately where only part of a site has heritage significance.  Thus, to take one example amongst many, perusal of the list of State Heritage Places in the Table Adel/1 reveals that, in the case of the Gilles Street Primary School, only the 1899 building has been registered. The specific reference to that building makes clear that there are other non-heritage buildings on the same site.

8. The reference to part of a place in the definition has also enabled discrete elements of a site to be registered separately. Thus, for example, the first and second entries in the table Adel/1 respectively refer to the Convent of Mercy at 34 Angas Street, Adelaide and the Cunningham Memorial Chapel at the rear of 34 Angas Street. Those two entries share the same Certificates of Title but have been separately registered as State Heritage Places.  While a similar approach might have been adopted in registering the Hotel, the failure to do so supports the view that there is only one heritage place, that being the complex of structures comprising the Hotel. 

9. Mr Schulz considered that the stables and the yard wall would have been erected at about the same time as the main three-storey building and two-storey wing.  His evidence was also that the two-storey wing is not a standalone structure but is structurally integrated into the three-storey Hotel building.  It is also apparent from his evidence that the stable building and the former yard are effectively the one structure as the yard wall is simply an extension of one of the stable walls.  Furthermore, as a result of the infill building and modifications that are identifiable in the 1928 and 1939 plans, and which remain in situ, the stables and the yard wall have long been effectively integrated into the other elements of the Hotel building. 

10. In light of the evidence of Mr Schulz, and also the historic photographs and plans incorporated into his report, I am satisfied that the three-storey hotel building, the two‑storey wing, the stables and the yard wall effectively comprised one integrated complex long before the site was listed as a State Heritage Place and also long before inclusion in the Table Adel/1. 

11. I reject the contention by the plaintiffs that Mr Wells had stated in his letter of 1 December 2015 addressed to DAC that the two-storey wing, the stables and yard wall are discrete heritage places in their own right.  In fact, Mr Wells stated, “they are undeniably significant original fabric (where without having to agree on an exact level of relative significance) and part of the heritage listed fabric of the place”.  There is nothing whatsoever in the document authored by Mr Wells to suggest that he regarded the structures in question as several separate heritage places.  To the contrary, the use by Mr Wells of the words “… part of the heritage listed fabric of the place” suggests that he considered there to be only one heritage place.  Even if he had expressed in his letter the view suggested by the plaintiffs (which I do not accept), such a view must carry far less weight than the report of Mr Schulz which was based on a detailed assessment of the structures. Neither the affidavit nor the oral evidence of Mr Wells touched upon this point. The plaintiffs could have pursued the issue with Mr Wells in cross‑examination but did not do so.

12. I consider that the reference to the Newmarket Hotel in the Table Adel/1 applies to the complex comprising the three-storey building, the two-storey wing, the former stables and the yard wall.  In other words, these structures comprise a single State Heritage Place, being the Newmarket Hotel. The unqualified identification in the Gazette notice of the relevant Place as the Newmarket Hotel is entirely consistent with that conclusion.

13. For these reasons, I reject the contention by the plaintiffs that the development will involve the total demolition of three separate heritage places, being the two‑storey wing, the stables and the yard wall. What has been approved for demolition is only part of the Heritage Place. Thus, PDC 36 does not apply and the development was appropriately assigned to Category 1. Accordingly, I reject the plaintiffs’ contention that the approval by DAC was invalid because of a failure to comply with the notice obligations under s 38 of the Development Act.

    Agency referral

14. The plaintiffs allege that following the initial consideration of the development application by DAC on 17 December 2015, and the subsequent receipt from the applicant of additional information and plans, DAC failed to comply with its statutory duty to refer the matter back to Mr Wells, the Principal Conservation Architect in his capacity as the delegate of the Minister.  Before considering that issue, it is necessary to refer to the legislative scheme and the relevant facts. 

    The legislative scheme

15. Section 37(1)(a) of the Development Act provides that the regulations may require that where an application for approval of a prescribed development of a prescribed class is to be assessed by a relevant authority, that authority must refer the application, together with a copy of any relevant information provided by the applicant, to a body prescribed by the regulations. Section 37(1)(b) provides that in these circumstances the relevant authority must not make its decision until it has received a response from the prescribed body in relation to the matters for which the referral was made. It is unnecessary to refer to further provisions that only apply where the relevant authority does not respond within the time prescribed.

16. Regulation 24(1)(a) of the Development Regulations provides that where an application for approval relates to a development that falls within a class prescribed under Schedule 8, the relevant authority must refer the application, and any relevant information provided by the applicant, to the relevant body prescribed under Schedule 8. Regulation 24(1)(b) directs that the relevant authority must not make a decision until it has received a response in relation to the matters for which the referral was made. Once again, it is not necessary to refer to the special provisions that operate where the agency does not respond within the prescribed time.

17. Clause 2 of Schedule 8 of the Development Regulations comprises a table that gives effect to reg 24.  Item 5 in that table deals with State Heritage Places.  Subject to an exception that is not relevant, item 5(1) requires that a development which directly affects a State Heritage Place, or a development which in the opinion of the relevant authority materially affects the context within which the State Heritage Place is situated, must be referred to the Minister.  The planning authority, in this case DAC, is required to have regard to matters raised by the Minister pursuant to such a referral.

18. If an application has been referred to a prescribed body under Part 5 (which includes reg 24) and the relevant authority subsequently receives additional information, or an amended plan, drawing or specification, which is materially relevant to the referral, or to any report obtained as part of the referral process, reg 27 provides that the authority may repeat the referral process and must do so if it appears that the additional information or amendment is significant. 

19. Put simply, the requirement is that if DAC received additional information from the proponents of the development after it had made a referral to the Minister it may provide that information to the agency.  More importantly, DAC must refer the matter back to the agency if the additional information appears to be significant. There is a question as to whether the threshold requirement that the additional information appears to be significant gives rise to a subjective test or an objective test.  I will return to that issue.

    The Heritage Impact Assessment of DASH Architects

20. Mr Jason Schulz, a director of DASH Architects, prepared a Heritage Impact Assessment dated 4 November 2015 in support of the second defendant’s application for development plan consent.  Mr Schulz noted that in 1999 his firm had prepared, under its former name of Danvers Architects, a Conservation Management Plan (CMP) for the Hotel.  Mr Schulz was not the author of that report.  While noting that the 1999 CMP was largely out-of-date and did not reflect current trends and cultural attitudes concerning heritage management, Mr Schulz did refer extensively to the background information provided in the 1999 document.

21. Mr Schulz assessed the integrity of the three-story main building, the two‑storey side wing, the yard and the stables from a heritage perspective.  He found that the heritage integrity of the exterior of the main building was high, but the interior was only rated at the medium level.  That was because many of the building interiors had been modified with a later fit-out, including removal of original walls.  However, the central staircase and the stair lobby/hall remain of high integrity.  He reported that the exterior of the side wing was of medium to low integrity as its legibility had been substantially diminished due to surrounding development and enclosure.  He rated the interior of the side wing as of low integrity due to refurbishment, including the installation of a commercial kitchen on the ground floor.  The heritage value of the yard was low as it had been built-in for later development and it had limited legibility.  Its southern wall appeared to have been removed.  The exterior of the stables was rated at medium to low level, while the interior of that building was rated at medium level as the ground floor spaces had been modified by later fit-out but the first floor remained of high integrity. 

22. Mr Schulz supported this aspect of his report with 33 photographs.  Mr Schulz noted that the main Hotel building was considered by the author of the 1999 report to be of heritage significance on five grounds but only one of those grounds was relevant to the side wing, stables and yard wall.  That was because the latter structures formed part of an outstanding representation of a hotel dating from 1883.  He observed that the outbuildings were of heritage value and included in the heritage listing.  For that reason, their retention was generally desirable.  On balance, Mr Schulz concluded that “the demolition of the noted outbuildings to be a supportable negative impact to the heritage values of the place”.  In arriving at that conclusion Mr Schulz noted that: the out-structures were of medium to low overall significance and integrity; they were representative of only one element of the overall significance of the place; 1880s hotels were one of the most represented building types on the South Australian Heritage Register; similar out-structures were represented in numerous State and local heritage listed places and retention of the out-structures would appear to significantly inhibit the current redevelopment proposal.  He also noted that the Hotel and its surrounding land had remained substantially underutilised for a long period.  The proposed works “will provide a generational renewal of the heritage asset, reinforcing and strengthening its historic, cultural and social associations and values”.

23. Mr Schulz recommended that if demolition of the out-structures was approved, conditions should be attached to the approval requiring a detailed photographic record of the buildings to be prepared and for the stone work to be salvaged for re-use in the conservation of the main hotel building.

24. Mr Schulz also considered the proposed internal refurbishment of the main Hotel building for use as a hotel and function centre.  Mr Schulz provided a summary of the proposed works after noting that detailed design of that aspect of the proposal was still to be undertaken.  He noted that the proposed works would provide the Hotel with a generational renewal by conserving key features, removing later unsympathetic fit-out and providing a new contemporary interior design informed by the historic features and finishes of the building.  He considered that the proposed internal refurbishment works would be of notable benefit to the heritage values of the place.  He made particular reference to the spiral staircase, the skylight and stair lobby.  He recommended the attachment of a condition to any approval that required the detail of the internal refurbishment works be to the satisfaction of DAC in consultation with the Department of Environment, Water and Natural Resources (DEWNR) prior to final development approval being granted.  The work should be informed by a suitably qualified heritage architect.

25. Mr Schulz observed that the northern and western facades of the Hotel remained in good condition and high integrity, but the eastern facade had been heavily altered for access to later additions.  The proposed works would remove those additions and reinstate the stone facade and windows.  These works would have a positive impact on the legibility and interpretation of the heritage significance of the Hotel.  Mr Schulz also considered that the proposed design for linking the new works with the Hotel had considerable merit.  However, he recommended attachment of conditions that should be met to the satisfaction of DAC in consultation with DEWNR prior to the grant of final development approval.  The conditions related to restoration of stone work, the proposed colour scheme and details concerning the linkage of the new and old buildings.

26. Mr Schulz noted that the proposal had been reviewed on several occasions as part of the process of the Office of Design and Architecture SA (ODASA) design review panel process.  This had resulted in several notable changes to the design.  The design had also been heavily influenced by the pre-lodgement process conducted with the State Heritage Unit in DEWNR and by advice provided by Mr Schulz in his capacity as heritage consultant to the design team.  Concerns about the overall visual bulk and scale of the proposed buildings had been mitigated in a variety of ways.  Of those matters, the provision of a podium assumed particular importance in these proceedings.

27. Mr Schulz advised that the podium was intended to establish a design and contextual relationship with the heritage place.  This would be achieved through use of complementary materials (which were still to be determined at the time of his report) and “a comparable scale and rhythm”.  In addition to the role of the podium in relation to the heritage building, it would serve as an entrance to the two towers.  This would provide a transition to the setting and scale of the heritage place “while establishing a built form rhythm and finer-grained streetscape for the proposed development which is more consistent with that of the broader cityscape”.  As detailed design of the podium had not been resolved, Mr Schulz recommended that a condition should be imposed requiring that design details for the proposed podium and entry link should be documented to the satisfaction of DAC in consultation with DEWNR prior to the grant of final development approval.  He recommended that particular consideration should be given to the material palette and the key alignment of horizontal features.

    The report of the Associate Government Architect

1. Lord Greene MR held in Wednesbury that an administrative decision may be invalid if it is “so unreasonable that no reasonable authority could ever have come to it”.[88]

   [88] [1948] 1 KB 223 at 234 (Somervell LJ and Singleton J agreeing).

2. In 2013 the High Court examined the unreasonableness principle in Li.  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.”[89]  To like effect, French CJ held that “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves”.[90]  Gageler J held that “[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment”.[91] 

   [89] Ibid at [76].

   [90] Ibid at [30].

   [91] Ibid at [124].

3. The principles expressed in Wednesbury and Li concerning legal unreasonableness must be applied in light of the approach to the interpretation and application of development plans referred to at [29] to [32] above. In other words, the broad discretion of a planning authority must be recognised when assessing whether a decision is legally unreasonable.

4. I have already concluded that DAC failed to take into account a relevant consideration by not recognising that the development did not comply with PDC 67. It thereby failed to comply with its duty under s 33(1)(a) of the Development Act to assess the application against the DP.  However, I do not consider that this error also gives rise to unreasonableness in the exercise of a statutory discretion in the sense identified in Wednesbury and Li. That is because DAC did not reach the point of considering whether it should exercise its planning discretion in favour of the application notwithstanding the failure to comply with PDC 67. If it had reached that point, it might well have exercised its discretion to grant consent.  In that light, it cannot be said that the decision was one that “lacks an evident and intelligible justification” or was “so unreasonable that no reasonable authority could ever have come to it”.

5. I reject the plaintiffs’ contention that DAC acted unreasonably by imposing the conditions discussed at [267] to [291].  Given my finding that DAC imposed these conditions in the valid exercise of its statutory powers and did so for the legitimate planning purpose of resolving the finer details of the development, there is no merit in the assertion that the conditions were legally unreasonable.

6. That conclusion is equally applicable to the plaintiffs’ contention that DAC acted unreasonably by failing to obtain the information that is the subject of the conditions 2, 3, 11, 12 and 13 before deciding whether to grant development plan consent. Each of the topics referred to in those conditions was a matter of detail that could be determined by DAC at a later stage without affecting the substance of the development proposal that it had approved. I do not accept that the decision by DAC to leave these matters of detail for later determination was, in the words of Hayne, Kiefel and Bell JJ, “a decision which lacks an evident and intelligible justification”.

7. I also reject the plaintiffs’ contention that DAC unreasonably assessed the effect of the colours and materials of the proposed building on the heritage listed Hotel by reference to oral presentations which were not the subject of the planning consent. This contention is not concerned with the painting of the exterior or interior of the Hotel but instead the effect that the choice of colours and materials adopted for the new building would have upon the Hotel. 

8. The proposed colour scheme for the exterior of the new building is depicted (in colour) in drawing A911 dated 4 January 2016. The development plan consent granted by DAC on 21 January 2016 specifically identified that consent as being subject to compliance with, inter alia, the drawing A911. That drawing has also been stamped as being a component of the development plan consent.[92] Thus, DAC was clearly aware of, and endorsed, the colour scheme for the proposed building. The colour scheme for the exterior of the Hotel was to be determined later by DAC in consultation with DEWNR (i.e. effectively Mr Wells, the Principal Conservation Architect) in accordance with condition 12. In making that decision, DAC could consider the compatibility between the approved colour scheme depicted in drawing A911 and the heritage considerations relevant to the Hotel colour scheme. Accordingly, I am not persuaded that this aspect of the decision made by DAC lacked “an evident and intelligible justification”.

   [92] This plan, and all other plans and drawings annexed to the DNF dated 21 January 2016, has actually been endorsed with a DAC stamp dated 21 February 2016. However, as it was annexed to the DNF issued on behalf of DAC on 21 January 2016 and incorporated by reference into that approval, and noting that 21 February 2016 was a Sunday, I am satisfied that the date stamp was incorrectly set to show February rather than January.

9. The plaintiffs assert that DAC acted unreasonably by approving the development without assessing whether it involved a serious or substantial variance from the DP having regard to the whole of the DP and, in particular, Council Wide PDC’s 67, 137 and 140.

10. I have already dealt with PDC 67 and found in favour of the plaintiffs.  It is unnecessary to further consider that issue.

11. PDC 137 provides that a development affecting a state heritage place including, amongst other things, adaptation to a new use, additional construction, part demolition, alterations or conservation works, should facilitate the continued or adaptive use of the heritage place.  Additionally, development should utilise materials, finishes, setbacks, scale and other built form qualities that are complimentary to the heritage place.  PDC 137 was clearly relevant to the development.

12. PDC 140 provides that development on land adjacent to a heritage place in non‑residential zones or policy areas should incorporate design elements, including where it comprises innovative contemporary design, that utilises materials, finishes and other built form qualities that complement the adjacent heritage place.  On a very strict interpretation, PDC 140 would not be applicable to the proposed development as it is on land comprised in the heritage place rather than on land adjacent to it. However, I accept that the proposed development clearly falls within the spirit and intendment of PDC 140. 

13. It is apparent that PDC 137 contains two limbs that are intended to advance discrete but related policy considerations.  The first limb requires that development affecting a state heritage place should facilitate the continued or adaptive use of that place.  The policy requirement evident in the second limb is that materials, finishes, setbacks, scale and other built form qualities used in the development should be complementary to the heritage place.

14. The applicant intends that the Hotel will continue to be used as licensed premises providing alcohol, meals and related services to the public, and as a function centre, albeit that the internal layout will be substantially changed.  Clearly, there was a proper basis for DAC to be satisfied that the development will facilitate the continued and adaptive use of the Hotel. Accordingly, I am not persuaded that the decision by DAC to grant development plan consent lacked “an evident and intelligible justification” in relation to the first limb of PDC 137.

15. The further question is whether the decision by DAC to grant consent was legally unreasonable in relation to the second limb of PDC 137.  The report prepared by Mr Schulz of DASH Architects considered in very substantial detail the issues presented by the second limb of PDC 137.  In particular, it provided a detailed analysis concerning the design techniques that were to be applied to mitigate the overall visual bulk and scale of the proposed development.  He also explained the measures that were proposed to “establish a design and contextual relationship with the heritage place”.  The analysis by Mr Schulz was incorporated into the report provided by DPTI for the DAC meeting on 17 December 2015.  The DPTI report also observed that details of the finishes and texture of materials needed to be the subject of a condition recommended by Mr Wells.

16. While reasonable minds might differ as to the extent to which the proposed development would be complementary to the heritage place, the material provided to DAC addressed these issues at length.  Once again, I am not persuaded that the decision made by DAC was legally unreasonable in relation to the second limb of PDC 137. For the same reasons, I do not consider that the DAC decision was legally unreasonable in light of PDC 140. 

17. For these reasons, I reject the several contentions advanced by the plaintiffs to the effect that the decision of DAC was unreasonable in the sense referred to in Wednesbury and Li.

    Height of development

18. In addition to the multiple grounds upon which the plaintiffs allege that the DAC decision was legally unreasonable, they amended their statement of grounds with permission of the Court to add two further contentions related to the height of the proposed building. The additional grounds assert that, for the reasons stated below, the DAC decision was legally unreasonable, an irrelevant consideration was taken into account and a relevant consideration was not taken into account.

19. The first contention is that DAC must have failed to consider certain provisions of the DP that address the height of buildings near heritage places. That failure is said to have resulted from the view that the detrimental effect of the proposed development on the heritage place was to be assessed on the basis that the DP allowed a new building to be at least 43 m high but a building of that height would have a detrimental impact regardless of its precise height.  The basis for the irrelevant consideration argument is that DAC erred by reasoning that, when assessing matters of “context” and “cohesiveness”, it was permissible to take into account potential, but as yet unapproved, developments.

20. Because DAC did not, and nor was it required to, provide reasons for its decision, the preceding contentions necessarily rely on the plaintiffs’ earlier submission that the reasoning of DAC can be inferred from the material placed before it.  While the latter information will often not support an inference, I have held at [55] that while a plaintiff will generally have a difficult task, where the evidence and circumstances are sufficient, an inference may be drawn as to what considerations a multi-member decision making body took into account. 

21. PDC 19 for the Capital City Zone provides that the maximum building height is 43 m unless one of four exceptions applies.  The proposed building will be slightly in excess of 80 m and thereby clearly exceed the maximum height suggested in PDC 19 by a large margin.  The DPTI report prepared for the DAC meeting on 17 December 2015 states that the development will satisfy three of the exceptions included in PDC 19.  They are, first, that the building is to front North Terrace and West Terrace, secondly, it will be within 200 m of a high concentration public transport route and, thirdly, the site area is greater than 1500 m² and has side or rear vehicle access. The DPTI report suggested that, because the exceptions in PDC 19 were satisfied, the DP contemplated that the height limit would be exceeded.

22. The DPTI report also assessed the application against certain other provisions in the DP. The report noted that the desired character statement for the Capital City Zone intended that development on West Terrace would reinforce that thoroughfare as the western gateway to the city centre and form an imposing frontage.  Corner sites at the junctions of West Terrace and major east/west streets[93] will be developed as strongly defined visual gateways to the city and will provide an imposing frontage.

    [93] I note this would apparently include the proposed development at the junction of West Terrace and North Terrace.

23. The DPTI report also noted that Objective 7 of the Capital City Zone expresses an intention that large sites would be developed to their full potential while ensuring a cohesive scale of development and a response to the context of the buildings.  PDC 17 of the Capital City Zone states that development along North, East and West Terraces should contribute to a continuous built form to frame the city edge. PDC 18 indicates that development on North Terrace should reinforce the predominant scale and “city wall” character of the North Terrace frontage. 

24. The report also referred to the fact that Council Wide Objective 46 contemplated reinforcement of the city’s grid pattern of streets through high‑rise development framing city boulevards, the squares and parklands.  In light of this objective, and also PDC 167, the report suggested that the Capital City Zone envisaged high-rise development along North Terrace and West Terrace, but subject to a “cohesive scale of development” and a design which responds to a building’s context. 

25. The DPTI report noted that in response to these DP provisions the applicant had provided drawings that illustrated the future development anticipated in the area.  The drawings predicted that although there was a 43 m height limit, future development may take advantage of the “over height” principles by building up to, or close to, the limits imposed by Adelaide Airport requirements.  The plaintiffs contend that the predictions about possible future development are irrelevant considerations that DAC was not entitled to take into account.

26. The DPTI report also noted that the Associate Government Architect had stated that, while he supported the proposed height, it would be critical “to deliver a high quality contribution to the streetscape and good residential and pedestrian amenity” in order to justify development on this scale. 

27. The report quoted the Principal Conservation Architect, Mr Wells, as having made the following comments in relation to the height of the proposed building:

    In comparison with the known parameters of the hospital under construction and the approved hotel, (Enigma 8), the subject proposal is of a significantly greater order of height.  In its immediately juxtaposition with the approved hotel development, the subject proposal presents a considerably greater bulk and silhouette.

    Its impact on the visual presence of the Newmarket Hotel is exaggerated by the extent to which it exceeds the zone height limit, compared for example with the hotel, which exceeds it only to a modest degree.

    I consider that the height of the subject development, in pursing the concession offered by the various over height provisions in the Development Plan, has resulted in built form inconsistent with the scale of neighbouring development, with a consequently greater adverse impact on the setting of the Newmarket Hotel.

28. The author of the DPTI report responded to those comments with the following observations:

    Firstly, in relation to the heritage related comments, whether a building height is set at 43 metres or more, there will be a level of impact on the setting of the State heritage place.  The context, currently characterised by recent development to the northern side of North Terrace, will continue to evolve as economic activity increases in the locality, potentially resulting in substantial development that, in turn, will transform the setting of the Newmarket Hotel.

    In considering the future context and the comments from the relevant agencies referenced above, it is considered that the height of the proposal is supported and will move towards creating the ‘city wall’ character envisaged along North Terrace.  The proposed development has also been positioned to reinforce the established and notable city grid pattern, through the rectilinear form of the two tower elements.

29. The DPTI report did not advert to PDC 20 for the Capital City Zone. PDC 20 states that development should have optimum height yields to take advantage of the premium city location.  Buildings should be not less than half the maximum permissible height unless one of four exceptions is applicable.  The third exception operates where the site is adjacent to, or includes, a heritage place.

30. The clear policy of PDC 20 is that, unless one of the exceptions applies, optimum use should be made of land in the Capital City Zone and that it is not to be used for low rise buildings. The only relevance of PDC 20 is that the third exception removes the minimum height requirement. Thus, in making a planning judgment about the height of the proposed development, the fact that the DP makes an exception to the minimum height requirement due to the site being a heritage place was a relevant consideration.

31. While the DPTI report did not mention PDC 20, I do not regard this omission, of itself, as a sufficient basis to infer that DAC did not take this matter into account. The circumstances are distinguishable from those that led me to infer that DAC failed to take into account the three-metre set-back requirement in PDC 67.  My conclusion concerning PDC 67 was based upon a number of matters in addition to the mere failure to mention the boundary issue in the DPTI report.  The mere failure to mention an issue in a report, does not, of itself, necessarily lead to a conclusion that the point was not taken into account.

32. The plaintiffs contend that the advice provided to DAC, and in their submission acted upon by DAC, displayed a complete failure to understand and apply the provisions of the DP concerning the height of a development adjacent to a heritage place in the Capital City Zone. The DPTI advice reflected a mistaken view that the starting point in considering height was the limit of 43 m rather than that the height of a development should be complementary to the heritage place. Another suggested error is that the impact of the development on the heritage place has been judged by considering the difference between a 43 m building and a tower of over 80 m.  The plaintiffs submit that the proper approach is to consider whether an 80 m tower is acceptable in light of the provisions of the DP dealing with heritage places.

33. The second defendant submits that it is not clear whether PDC 137 is referring to development near to a heritage place or changes to the fabric of a heritage place.  I consider that whether a proposed development will affect a heritage place is a matter of fact that must be determined having regard to the particular features of both the heritage place and the proposed development. Thus, PDC 137 can apply to development near a heritage place or changes to the fabric of such a place.  Nevertheless, I consider that the primary focus of PDC 137 is upon development at the place rather than adjacent developments.  Each of the subparagraphs (a) to (e) is more apt to refer to the development of the place rather than an adjacent development.  I hold the same view in relation to the requirement that a development should facilitate continued or adaptive use of a heritage place.  Furthermore, PDC 140 deals specifically with development on land adjacent to a heritage place and largely replicates the requirement to utilise materials, finishes and other built form qualities that complement the adjacent heritage place. 

34. PDC 137, unlike PDC 140, requires the scale of the development to be complementary to the heritage place.  The plaintiffs contend that DAC has failed to consider this requirement as it was not mentioned in the DPTI report.

35. I will put aside for the moment the contention that DAC was not entitled to consider future high-rise development. The DPTI report, and also the reports provided by the Associate Government Architect and, more particularly, by the Principal Conservation Architect, Mr Wells, placed considerable emphasis on the height of the proposed development relative to the heritage place.  The DPTI report repeated the concerns expressed by Mr Wells about the height of the development.  In effect, those comments by Mr Wells were directed at the requirement in PDC 137 that the scale of the development be complementary to the heritage place.  DAC could have been left in no doubt that Mr Wells had real concerns about that issue. It cannot be assumed that DAC members were unaware of PDC 137 simply because the DPTI report did not specifically refer to it. 

1. The drawings and 3D renders lodged in support of the application made absolutely clear the relative height and scale of the proposed development as compared to the Hotel.  Armed with that information, and also aware of the adverse comments made by Mr Wells, it was a matter of planning judgment for DAC to decide whether it should grant development plan consent. I am not persuaded that DAC failed to consider a relevant consideration and nor am I persuaded that the decision was legally unreasonable in the Wednesbury and Li sense.

2. I turn to the suggestion by the plaintiffs that DAC was not entitled to take into account potential high-rise developments in the vicinity of the Hotel.  Material provided by GHD Woodhead, and incorporated into the DPTI report, depicted numerous high-rise developments, some of which were apparently still hypothetical. However, not all developments were hypothetical. DAC had previously granted the first plaintiff approval to develop a multi-story hotel, albeit at a lesser height, on the adjacent site on West Terrace.  DPTI also referred to recent development on the other side of North Terrace. I understand that to be a reference to the new Royal Adelaide Hospital, which was then under construction, and perhaps also other medical and university facilities. Mr Wells also referred in his assessment of visual context to developments that were being built or were proposed for the locality.

3. The DPTI report stated that multiple provisions in the DP were relevant when considering the context of the proposed development. Reference was made to the desired character statement for the Capital City Zone and Objective 7 and PDC 17 and PDC 18 for that Zone.  The report also noted Objective 46 and PDC 167 in the Council Wide Provisions.  The essential point made by DPTI was that the Capital City Zone provisions of the DP envisaged high‑rise development along North Terrace and West Terrace but subject to a “cohesive scale of development” and a design which responds to a building’s context.

4. I consider that DAC was entitled to have regard to the proposed adjacent hotel and the hospital and other health and university buildings that were then under construction on North Terrace, or the subject of planning approval, when it considered issues of context.  The actual, imminent or possible presence of such structures was of fundamental relevance to the matter of context.

5. I further consider that the provisions of the DP referred to in the DPTI report, and noted at [408] above, entitled DAC to take into account possible future high‑rise development in the vicinity of the Hotel. The extent to which potential developments could or should be taken into account when assessing the context of the proposed development was a matter of planning judgment. DAC members could use their professional skills and judgment to assess the likelihood of the forecast future developments and their contextual significance when considering the proposed development against the provisions of the DP.

6. I do not accept the plaintiffs’ contention that possible future developments were an irrelevant consideration and nor do I accept that if those matters were taken into account the decision was legally unreasonable.  While minds might differ, perhaps greatly, in relation to the height issue, this was a planning judgment for DAC. In making that decision, DAC was required to take account of the relevant provisions of the DP but was not bound by them.

   Conclusion

7. My conclusions may be summarised as follows:

   ·I reject the contention that the development application was wrongly classified as Category 1 rather than Category 3.

   ·While I have found that DAC failed to discharge its statutory duty to refer the additional information provided after its first meeting to the delegate of the Minister, I have exercised the discretion to refuse relief on the basis that I am satisfied that this would not have changed the outcome.

   ·I have reached the same conclusion in relation to the failure to provide all necessary information to the delegate of the Minister prior to the first DAC meeting.

   ·I find the impugned conditions to be valid.

   ·I reject the contention that the development is hypothetical. 

   ·I reject the contention that the decision made by DAC was legally unreasonable in the Wednesbury or Li sense.

   ·I reject the contention that DAC failed to apply the principles of the Development Plan in considering the height of the proposed development.

   ·I find that DAC failed to have regard to the setback requirement in PDC 67 as it was misled as to the position of the eastern boundary of the subject land above 46 AHD.

8. In view of the latter finding, I will make an order in the nature of certiorari quashing the development plan consent granted by DAC on 21 January 2016 on the basis that DAC failed to consider the set-back requirement in PDC 67 of the Council Wide provisions in the Adelaide (City) Development Plan (as consolidated on 24 September 2015) as required by s 33(1)(a) of the Development Act.

9. As I will make an order in the nature of certiorari, I do not consider that it also necessary to make a declaration in similar terms. I also do not consider it necessary to make an order in the nature of prohibition preventing DAC from granting development approval to the second defendant for the proposed development pursuant to s 33(4) of the Development Act.

10. I will hear the parties as to costs.