Mar Mina (SA) Pty Ltd v City of Marion - [2008] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
MAR MINA (SA) PTY LTD v CITY OF MARION & ANOR
[2008] SASC 120
Judgment of The Honourable Justice Debelle
2 May 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - VALIDITY
Development consent – categorisation of development – whether development correctly categorised as Category 2 development – whether Development Regulations assigning forms of development to categories are valid – whether development is seriously at variance with Development Plan – relevant and irrelevant considerations – whether Development Assessment Panel had properly reserved an issue affecting development consent – whether Council should have referred amendment to plans to Commissioner of Highways – whether further notice of amendments to proposed development required – appeal allowed – development consent set aside.
Development Act 1993 s 4, s 33, s 35, s 37, s 38, s 39, s 43; Development Regulations 1993 Reg 25, Reg 27, Sch 8, Sch 9 clause 6, 16 and 16A, referred to.
Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; Buck v Bavone (1976) 135 CLR 110; Courtney Hill Pty Ltd v Planning Commission (SA) (1990) 59 SASR 259 at 261-262; Hassen v Murray Bridge District Council (1984) 35 SASR 448; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641; Twenty Seven Properties Pty Ltd v District Council of Noarlunga (1975) 11 SASR 188; R v Connell; ex parte Hetton Bellbird Collieries Ltd (No 2) (1994) 69 CLR 407; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557, applied.
City of Port Adelaide Enfield v Moseley [2008] SASC 88; Coles Foodmarket Pty Ltd v Boucher (1971) 2 SASR 323; Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; O’Sullivan v Hannagan [1960] SASR 266; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, considered.

MAR MINA (SA) PTY LTD v CITY OF MARION & ANOR
[2008] SASC 120
Land and Valuation Division

DEBELLE J. This is an application by way of judicial review for an order to quash the grant of a development consent.
The plaintiff, Mar Mina (SA) Pty Ltd, is the registered proprietor of land at 1150-1154 South Road, Clovelly Park. The land is on the western side of South Road. A building containing two retail shops is erected on the land. One shop is vacant. The other is used as a pharmacy. The pharmacy business is conducted by a company called St Mary’s (SA) Pty Ltd.
Immediately to the south of the land owned by the plaintiff is a large parcel of land. The registered proprietor is Fabritex (SA) Pty Ltd. A building erected on the land was formerly used as a supermarket. It has not been used for that purpose for about three years. The current tenant of the building is Jaycar Electronics, an electronics retailer. To the south and west of the supermarket building is car parking. This land is subject to a contract for sale to the second defendant, MPS (Adelaide Campus) Pty Ltd (“MPS”).
Adjoining the plaintiff’s land to the south and west is a detached dwelling. The land on which the dwelling is erected is also subject to a contract for sale to MPS.
MPS is a company controlled by members of the religious sect called the Exclusive Brethren. MPS seeks to establish a small primary school on this land. It is intended that the school will initially have 30 students and that that number will grow to 100 students.
On 18 October 2007, MPS lodged an application to develop the subject land as a school. MPS had retained Mr Jeff Smith, a town planner, to lodge the application on its behalf. Throughout this planning application, Mr Smith has acted as the agent for MPS. The application sought provisional development plan consent to use the land for a primary school with associated administration, car parks, and outdoor play areas.
All of the land is within the area of the first defendant, the City of Marion (“the Council”). It is part of a Neighbourhood Centre Zone as prescribed by the Council’s Development Plan. The Neighbourhood Centre Zone is a relatively small area bounded by South Road on the east, Norrie Avenue on the south, Wingfield Street on the west, and Newton Avenue on the north.
On or about 25 October 2007, the plaintiff received notice from the Council of the development application lodged by MPS. The Council had treated the development application as an application for a Category 2 development. It gave notice to the plaintiff among others. The plaintiff lodged a representation opposing the proposed development. On 5 December the Council resolved to grant development consent to MPS. The development consent was subject to 15 conditions. On 6 December 2007, the plaintiff received a notice from the Council informing it of its decision.
On 20 December 2007 the solicitors for the plaintiff wrote to Mr Smith asserting that the development consent was invalid on the ground the Council had not processed it correctly. They asserted that the Council should have classified the proposed development as a Category 3 development. The solicitors also asserted that the development consent was invalid because the proposed development was seriously at variance with the Council’s Development Plan. The letter invited MPS to apply pursuant to s 43 of the Development Act 1993 (“the Act”) to cancel its development consent and thereby avoid the necessity for the plaintiff to institute legal proceedings to quash the consent. Neither Mr Smith nor MPS replied. The plaintiff’s solicitors also invited MPS to participate in without prejudice negotiations to try to overcome the concerns held by the plaintiff in relation to the application. Over the following months, the plaintiff’s solicitors endeavoured to get a reply from Mr Smith and MPS. On 6 March 2008 Mr Smith informed the plaintiff’s solicitors that MPS was not prepared to participate in any negotiations in relation to its application.
On 23 March 2008 the plaintiff lodged this application for judicial review. The application seeks an order in the nature of certiorari quashing the grant of development consent. It also seeks declarations that the grant of development consent is invalid, a declaration that the proposed development is a Category 3 development for the purpose of s 38 of the Development Act and a declaration that the proposed development is seriously at variance with the Council’s Development Plan. The application also seeks ancillary orders. The parties have filed all necessary affidavits and have been ready for trial with commendable promptness.
The application is made on a number of grounds. I will deal with each of those grounds in turn.
Category 2 or Category 3?
The plaintiff first contends that the Council has incorrectly assigned the development proposed by MPS as a Category 2 development. The plaintiff contends that the development is a Category 3 development. The difference in categories is important. If the development is a Category 3 development, the plaintiff has a right of appeal against the Council’s decision to the Environment, Resources and Development Court. If the development is either a Category 1 or a Category 2 development, the plaintiff has no such right of appeal: see s 38 of the Development Act.
The classification of a building into Categories 1, 2 and 3 depends on the terms of the Development Plan and the Development Regulations 1993. The Council’s Development Plan does not classify the proposed development. The classification, therefore, turns on the terms of Schedule 9 of the Development Regulations. Schedule 9 lists kinds of developments and assigns them either to Category 1 or Category 2. Part 1 of Schedule 9 assigns the forms of development there listed to Category 1. Part 2 of Schedule 9 assigns the forms of development there listed to Category 2. If the proposed development is neither a Category 1 nor a Category 2 development, it is a Category 3 development: s 38(2)(b) of the Development Act.
For the purposes of this application, it is necessary to consider clause 6 of Part 1 as well as clauses 16 and 16A of Part 2 of Schedule 9.
Clause 6 lists a number of forms of Category 1 developments. The forms of development are listed by reference to developments in named development zones or in particular geographical areas. Clause 6(1) opens with these words:
Any development which consists of any of the following, other than where the site of the development is adjacent land to land in a zone under the relevant Development Plan which is different to the zone that applies to the site of the development or where the development is classified as non-complying under the relevant Development Plan.
Thus, the forms of development in the zones listed in clause 6 are forms of Category 1 development except where the development is on land adjacent to land in a different zone or where the development is a non-complying development. An illustration of the operation of clause 6 can be provided by having regard to the terms of clause 6(1)(i). Clause 6(1)(i) deals with development in shopping and centre zones. It provides:
6(1) (i) any kind of development within a Local Shopping, District Shopping, Specialty Goods Centre, Local Centre, Town Centre, City Centre, Neighbourhood Centre, District Centre, Regional Centre, Regional Town Centre or District Business zone as delineated in the relevant Development Plan.
The effect of that provision is that any kind of development within those nominated zones is a Category 1 development provided that the development is not on land adjacent to land in a different zone or that the development is not a non-complying development.
Clauses 16 and 16A provide:
16Except where the development falls within Part 1 of this Schedule, is within the City of Adelaide, or is classified as non-complying development under the relevant Development Plan, any development which consists of the construction of the following, or a change of land use consequent on the construction of the following:
(a)a building of two storeys comprising dwellings; or
(ab) two or more dwellings on the same site where at least one of those dwellings is two storeys high, but no residential building is to be more than two storeys high; or
(b) a building in a situation referred to in clause 6 of this Schedule where the site of the proposed development is adjacent land to land in a zone under the relevant Development Plan which is different to the zone that applies to the site of the development.
16AExcept where the development falls within Part 1 of this Schedule, is within the City of Adelaide, or is classified as non-complying development under the relevant Development Plan, a change of use of land in a situation referred to in clause 6 of this Schedule where the site is adjacent to land in a zone under the relevant Development Plan which is different to the zone that applies to the site of the development.
It is common ground that the opening words of clauses 16 and 16A do not apply to the development proposed by MPS. It is not a non-complying development and clearly is not within the City of Adelaide.
Both clauses 16 and 16A contain the expression “in a situation referred to in clause 6 of this Schedule”. A comparison of clause 6 with clauses 16 and 16A shows that they are complementary in operation. Clause 6 deals, among other things, with new development or a change of use of land where the land on which the development is to occur (“the subject land”) is situate on land that is not adjacent to land in a different zone. Clauses 16 and 16A deal with new developments or a change of use of land where the subject land is adjacent to land in a different zone. In the former case the development is a Category 1 development and in the latter it is a Category 2 development.
The effect of clause 6 is that a development on land that is entirely within a zone and is not on land adjacent to land in a different zone will be a Category 1 development. However, by reason of clauses 16 and 16A, if the development is on land adjacent to land in a different zone, it will be a Category 2 development. Again, the terms of clause 6(1)(i) illustrate the position. If the developments there listed are carried out on land that does not adjoin land in a zone different from the zones there listed, the development is a Category 1 development. However, if the land is on land that adjoins land in a different zone, the development will be a Category 2 development.
In this context, adjacent land includes land that abuts the site of the proposed development as well as land that would abut the site but is separated by a lane, street or road. As most zone boundaries are long streets and roads, that must be the intended meaning of “adjacent” in this context. The intent of clause 6 is that all development will be a Category 1 development except where it might conflict with the use of land in an adjoining zone.
The land the subject of this application is in a Neighbourhood Centre Zone. To the west and adjoining the land on the other side of Wingfield Street is a Residential Zone. Clause 6, therefore, does not apply. The question is whether the development does or does not fall within either clause 16 or 16A.
Mr Roder, who appeared for the plaintiff, submitted that the proposed development did not fall within either clause 16 or 16A and was, therefore, a Category 3 development. I do not accept that submission. For the reasons that follow, the proposed development is a Category 2 development.
The terms “development” includes both the construction of a new development as well as a change of use of land: s 4 of the Development Act. MPS proposes to make some alterations to the existing building in which the supermarket business had been conducted. It is not possible to gauge the nature and extent of the alterations as no details have been provided. If the supermarket building has been constructed like most, the building is a large vacant area divided by rows of shelves with storerooms, offices and lavatories at the rear or sides of the building. The plan of the proposal suggests the construction of internal walls or partitions to divide the areas into classrooms and other rooms as well as storerooms and lavatories. Three windows will be constructed on the eastern side of the building, that is to say, on that side of the building which has the frontage to South Road. The existing car park area is to be used in part for play areas and in part for car parking. The dwelling is to be used for administrative purposes and will include the principal’s office. Little will be done to that building. The land at the rear of the dwelling is to be used as a play area. It appears, therefore, that no substantial building work will be required. Essentially, while some alterations will be effected to it, an existing building is being converted to school rooms with associated facilities and part of a car park is being converted to a play area while the balance will continue to be used as a car park, albeit with an amended layout. Shortly put, the proposed development constitutes a change of use of land, that is to say, the use of the land and buildings for retail purposes is being changed to enable the use of the land and buildings as a small primary school. The development, therefore, falls within clause 16A.
There is a nice question whether the proposed development also falls within clause 16(b). The word “construct” is defined by the s 4 of the Development Act so as to include alterations to a building. The Council and MPS rely on s 4 and contend that the word “construction” when used in clause 16 includes alterations. The definition of the term “construct” in s 4 does not necessarily govern the meaning of or give a meaning to the word “construction” other than its usual meaning when used in the Development Regulations: Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641 at 664-667 per Stephen J. The Development Regulations frequently distinguish between construction of a building and alterations to an existing building, and especially in Schedule 9. That is one reason why the word “construction” when used in clause 16 may apply only to the construction of a new building. A contrary argument is that it is not uncommon for substantial alterations to be made to a building to enable that building to be used for another purpose. Clause 16 refers to a change of use consequent on the construction of the buildings listed in paragraphs (a), (b) and (c). It is, therefore, reasonably arguable that, when used in the expression “a change of land use consequent on the construction of the following”, the intention is to refer both to alterations to an existing building as well as to the construction of a new building of the kind listed in clause 16. It could also refer to those occasions where the development involves both an alteration to an existing building and the construction of a new building. However, given the conclusion that the proposed development in this case falls within clause 16A it is not necessary to determine that question.
Mr Roder contended that as some alterations were necessary to enable the change of use, clause 16A did not apply in the particular circumstances of this development. I do not agree. There is nothing in clause 16A which limits the operation of that clause to a change of use where no alterations had been made to an existing building. Clause 16A operates, in my view, both in the case of a change of use of land where no building work (as defined by the Act) is required and where minor building work is required. To restrict the operation of clause 16A in the way for which Mr Roder contends is to introduce words into clause 16A in an impermissible way.
Mr Roder also contented that the Council was aware that MPS might seek to erect signs on the intended school property. As the question of whether development consent was required for the signs depended on the kind of sign proposed, he submitted that the Council ought to have inquired whether MPS intended to erect signs and, if so, the nature of the signs. The nature of the signs might result in the development being a Category 3 development. I reject the submission. Any signs that MPS might seek to erect are very incidental to the use of the land. The question whether development consent should be granted will not turn on signs. The question of the signs is an issue which can be addressed at a later stage depending on what signs are intended. It is not a factor that affected the category of the development.
Are Clauses 16 and 16A Invalid?
Mr Roder’s next submission was that clauses 16 and 16A are invalid on the ground that they exceed the power to make regulations in s 38(2) of the Development Act. Section 38(2) authorises the making of regulations to assign a form of development to either Category 1, Category 2 or Category 3. It is in these terms:
(2)Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:
(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.
Mr Roder emphasised that s 38(2) authorises the making of regulations that assign a form of development to either Category 1 or Category 2. He pointed to the fact that clauses 16 and 16A, when read with clause 6, not only assign a form of development to either category but also did it by reference to zones in development plans and in one or two cases by reference to geographical areas. He submitted, therefore, that the regulation went beyond the power in s 38(2)(a) to assign a development to a category in that it assigned a development to a category not by reference to the form of the development but by reference to both the form of development and the location of that development in a zone or geographical area.

The submission depends upon giving the expression “form of development” a narrow meaning to confine the meaning to the nature of the development so that the assignment of a category cannot have regard to the zone or geographical areas.
A fundamental planning principle is that the question whether consent should be given to a particular form of development depends on a number of factors and, in particular, on both the nature of the development itself as well as the kind of development in the locality of the site of the proposed development. For example, development consent will, as a general rule, readily be granted to erect a dwelling in a residential zone but, in all likelihood, will be refused for a wide range of developments which would adversely impact on the character and amenity of that residential zone. Conversely, development consent will, as a general rule, not be granted for a dwelling in either a centre zone intended for retail and community facilities or in an area zoned for industrial purposes. A corollary of these propositions is that a question that is frequently considered, when determining whether development consent should be granted, is the effect of the proposed development on the character and amenity of the locality. One reason for planning controls is that development should be compatible with existing development in the area. The goal is to avoid an adverse impact of one kind of development upon existing development in a zone. Development Plans give effect to these propositions. Their purpose is to create zones with desired forms of development with the intent that new development within that zone is compatible with existing development. The objective of Development Plans is to seek to ensure so far as is reasonably possible that forms of development of a particular kind are located with like developments. That is part of the background against which the validity of these regulations must be assessed.
While the question of the validity of a regulation depends on the statutory power to make the regulation, when construing that power, it is appropriate to consider the ambit of that power by reference to the character of the empowering statute and the nature of the provisions it contains: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 where the High Court said (at 410):
A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out what policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in details with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s. 164 cannot be supposed to express an intention that t he Governor-General should deal with the same matters in another way.
That decision was applied in O’Sullivan v Hannagan [1960] SASR 266 and in Coles Foodmarket Pty Ltd v Boucher (1971) 2 SASR 323.
The Development Act creates a régime for planning controls and at the same time delegates the detailed implementation of those controls to the Development Regulations and, to a greater extent, to Development Plans. The Act leaves to the Development Regulations and the Development Plans the detailed implementation of the goal of achieving orderly and economic development. One part of the process by which the Development Plans seek to achieve that goal is the creation of zones. The ambit of the power to make regulations assigning forms of development to categories must be considered against those considerations. Assignment of forms of development to a particular category by either regulations or by Development Plans must be widely interpreted. It would be highly impracticable to assign a dwelling house as a Category 1 development in all cases without reference to its zoning and it would be equally impracticable to assign a shop to, say, a Category 3 in all cases without regard to its zoning. It would make the assignment of categories unworkable. For these reasons, a broad interpretation should be given to the regulation making power so that the expression “form of development” signifies the nature of the development that carries with it the notion that the form of category might depend on the area or zone within which the development is to be located.
For all of these reasons, I do no accept the submission that clauses 16 and 16A are invalid. In my view, both clauses 16 and 16A fall within the power to make regulations prescribed by s 38(2) of the Development Act and are valid regulations.
Seriously at Variance
I turn to the question whether development consent is invalid because it is seriously at variance with the Development Plan. Section 35 of the Development Act provides:
(2)Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
It is common ground that there is nothing in subsection (1) which applies to this development.
The first question is what is meant by the expression “seriously at variance”. In this context “seriously” is the adverb reflecting the fourth of the meanings by which the epithet “serious” is defined in The Macquarie English Dictionary, namely “weighty or important”. Thus, the expression “seriously at variance with the Development Plan” refers to that which is an important or grave departure in either quantity or degree from the Development Plan. It denotes something which is plainly not slight or trifling. See also The Shorter Oxford English Dictionary. It is not enough that the proposal might conflict with the Development Plan; it must be seriously at variance with it: Courtney Hill Pty Ltd v Planning Commission (SA) (1990) 59 SASR 259 at 261-262.
In order to discharge the task committed to it by the Development Act, the Council’s Development Assessment Panel (“the Panel”) had to perform two tasks. The first was to consider the proposed development against the provisions of the Development Plan: s 33(1)(a) of the Development Act. The second was to consider whether the development was seriously at variance with the Development Plan: s 35(2) of the Act. It is implicitly required by s 35(2) that, before a consent is granted, the planning authority must make an assessment that the development is not seriously at variance with the Development Plan: Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at [146]. Thus, two issues must be determined. The first is whether the Panel has directed its mind to the question whether the proposed development is seriously at variance with the Development Plan. The second is whether grounds exist on which the development can be set aside as being seriously at variance with the Development Plan: Upham at [149].
I turn to examine the relevant provisions of the Development Plan. The land the subject of the development proposed by MPS is in a small Neighbourhood Centre Zone.
The Development Plan lists two Objectives and eight Principles of Development Control that apply in Neighbourhood Centre Zones prescribed by the Council’s Development Plan. Those Objectives and Principles are in addition to those expressed for the whole of the Council area and, as the introduction to the Objectives and Principles for the Neighbourhood Centre Zones states, “in cases of apparent conflict, take precedence over them”. As will become apparent, no weight has been given to those words when assessing this development.
The two Objectives state:
Objective 1: A zone accommodating a range of shopping, office, business, medical, community, entertainment, recreational and service facilities, at a scale to meet the needs of the surrounding neighbourhood.
Objective 2: A zone accommodating shopping facilities that provide mainly convenience goods to service the day-to-day needs of the neighbourhood, but may include restaurant/take-away food premises and a limited range of comparison goods.
Of the eight Principles of Development Control, three operate generally in each of the Neighbourhood Centre Zones. They are Principles 1, 2 and 8. It is necessary to refer only to Principles 1 and 2 which are in these terms:
1The scale, intensity and nature of the uses envisaged by the objectives, should be closely related to the size, characteristics and needs of the population that each individual zone serves.
2Development located adjoining residential zones should be sensitively designed and managed to minimise all types of negative impacts to residential use.
The remaining five Principles of Development Control, Principles, 3, 4, 5, 6 and 7 apply to each of the five Neighbourhood Centre Zones. Principle 7 applies to this Neighbourhood Centre Zone. It is in these terms:
7Development in the Neighbourhood Centre Zone at Clovelly Park/St. Marys should have its retail focus on the western side of South Road between Newton Avenue and Norrie Avenue, and develop in accordance with Concept Plan, Fig NCe/3, with a retail floor area of up to 2000 square metres being appropriate.
Concept Plan NCe/3 to which Principle 7 refers shows that all of the land within the zone is intended for retail use or complementary uses with the predominant amount of retail use on the South Road frontage, consistently with what is stated in Principle 7. The retail floor area is intended to be up to 2,000 square metres.
It is manifest that the intent of the Development Plan is that this Neighbourhood Centre Zone should be developed primarily for retail use as well as for other facilities to serve the commercial and communal needs of the surrounding neighbourhood. That is the plain meaning of Objectives 1 and 2 and Principle 7 and Concept Plan NCe/3.
The proposed school will use what has hitherto been retail space and its associated car parking.
Development Plans are not documents that prescribe a series of legal obligations: Hassen v Murray Bridge District Council (1984) 35 SASR 448. As Bleby J noted in Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389 at [27], Development Plans contain statements of planning objectives and principles which, as a general rule, should be applied. He said:
27It contains statements of planning objectives and principles to be applied sensibly and flexibly to particular circumstances. However, that does not mean that its objectives and principles may be ignored because it may seem convenient to do so in a particular case.
Due regard must, therefore, be had to those provisions in a Development Plan that are expressed in positive terms or express a particular goal for a particular area. I respectfully agree with what Bleby J said in Alexandrina Council at [30]:
30An important factor in making the assessment will turn on the terms of the relevant part of the Development Plan itself. Some Development Plans or parts thereof will be in general terms and will allow for a range of possibilities within a particular zone. Others will be more particular.
In this case, it is instructive to compare the general terms in which the goals for Neighbourhood Centre Zones are expressed in objectives such as Objectives 12 and 16 of the Metropolitan provisions with the more positive terms of Principle 7 for this Neighbourhood Centre Zone that expresses a particular goal for the zone. I respectfully agree also with the views expressed by Bleby J in Alexandrina Council at paragraphs [35] and [39]:
35Considering 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. To consent to a sub-division of more than one-third of the area of the Zone without any certainty as to whether, where or when a golf course might be created is to compromise the whole objective of the Zone and to render that objective less likely to be achievable.
39Nor is it any answer to ignoring the Objective and the Principles of Development Control to say that the Objective of the plan cannot be or is unlikely to be achieved. On the evidence before him it was not open to the Commissioner to make such a finding. But even if it were, it is not open to a planning authority to ignore the essential thrust and objective of the Plan. If the view is taken that for some reason the objective is not achievable, it is for the relevant planning authority to decide upon an amendment to the Plan after due preparation and consideration of a Plan Amendment Report in accordance with the requirements of Part 3 of the Development Act, and after the sort of consultation that the legislation requires. The perceived inability of the Development Plan to be carried out is no reason to ignore it in respect of a particular application for development.
I made remarks to similar effect in City of Port Adelaide Enfield v Moseley [2008] SASC 88 at [22]:
22It is appropriate to add that, while Principle 12 is not mandatory in its operation, due weight must be given to it. If that is not so, the purpose of the Development Plan is seriously undermined. Although it was decided in South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 that provisions of a Development Plan are not mandatory in their operation, that decision does not negate the fact that due weight must be given to them. The Objectives and Principles of Development Control are important and a planning authority should have regard to them. As King CJ said in South Australian Housing Trust v Development Assessment Commission at 38, in many cases non-compliance with a particular principle may be decisive in a planning authority’s consideration of an application. The Objectives and Principles of Development Control are advisory in the sense of expressing goals and guiding principles: per Prior J at 41. While not mandatory, the provisions of the Development Plan are directory and persuasive and one would normally expect a planning authority to apply them unless, as a matter of planning judgment, there is good reason to depart from them: District Council of Angaston v Hamilton (1995) 64 SASR 110 at 117 to 118 approved in Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [22] per Doyle CJ and at [79] per Bleby J. If that is not so, the Development Plan becomes a relatively meaningless and ineffectual document. In addition, it would tend to negate the injunction in s 33(1)(a) of the Development Act that a development is to be assessed against the relevant provisions of the Development Plan.
The remarks in both of the above decisions were made in the course of determining appeals from the Environment, Resources and Development Court. In neither case was it necessary to consider what was meant by the expression “seriously at variance with the Development Plan”. Nevertheless, the remarks apply with equal force when considering what is meant by seriously at variance with the Development Plan. The question of what is seriously at variance requires an examination on what is the essential thrust and objective of the Development Plan (to use the words of Bleby J) so far as they apply to the land the subject of the intended development and its locality.
The remarks of Bleby J in paragraph [39] are especially pertinent to this appeal. While a planning authority may approve a proposal that departs from the Development Plan, the planning authority must consider the Development Plan as it stands. The power to approve a departure from the plan that is not seriously at variance with the plan is not to be used as a means of amending the plan. The Development Plan prescribes the means by which the plan is to be amended.
The Panel’s Decision
As a general rule a planning authority does not give detailed reasons for its decision. The plaintiff did not contend that the Panel ought to have given reasons. The Panel gave the brief reasons for its decision.
The Panel did not expressly conclude that the proposed development was seriously at variance with the Development Plan. There is no evidence of the Panel’s reasoning on the issue other than in the notice advising the parties of the grant of development consent. The notice begins with reasons for the decision that are expressed in these terms:
Consent is granted as the proposed development is considered to accord sufficiently with the provisions of the Development Plan.
The following conditions have been imposed to reasonably ensure that the development will not impair the orderly and proper planning of the locality or detrimentally affect the amenity of the locality, having particular regard to the Objectives and Principles of Development Control applicable to such a use in the locality.
The notice then lists 15 conditions. The conditions deal with different aspects of the development. None of the conditions deal with any matter that touches on the question whether the proposal is seriously at variance with the Development Plan. Broadly speaking, the conditions deal with detailed matters affecting the manner in which the land is to be developed. They are essentially concerned with details of the development rather than the fundamental planning issue whether the proposal should be permitted. Condition 14 limits the number of students attending the school at any one time to 100 students.
The first sentence of the reasons is, therefore, the only provision which gives some insight into the reasoning of the Panel. It indicates that the Panel believed that the proposed development was in sufficient accord with the Development Plan for it to grant development consent. It does not suggest that the Panel considered the question whether the development was seriously at variance with the Development Plan. As is apparent from the discussion which follows, it is clear that it did not.
A guide to the manner in which the Panel approached the question whether to grant development consent is provided by the report upon this proposal of one of the Council’s planning officers to the Panel (“the planner’s report”): Upham at [157] where the Full Court said:
Under the section, the relevant authority does not give detailed reasons. 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.
In this case, an examination of the planner’s report clearly shows that the Panel’s attention was not directed to the question whether the development was seriously at variance with the Development Plan. It is reasonable to infer, therefore, that the Panel did not address that issue. In consequence, the Panel has failed to discharge one of the tasks committed to it by the Development Act. The decision must be set aside on that ground. I set out the reasons for that conclusion.

Set out below are relevant extracts from the planner’s report. I have added paragraph numbers for ease of reference. That part of the planner’s report that deals with the assessment of the development first refers to Objectives 1 and 2 and to Principles of Development Control 1, 2, and 7 but there is nothing to remind the Panel that the provisions in the Development Plan that apply to this Neighbourhood Centre Zone take precedence over principles expressed for the whole of the Council area. Those objectives and principles are what the Plan calls “the Metropolitan provisions” and “the Council-wide provisions”. The planner’s report continues:
1A primary school performs under the heading of an “educational establishment”, which is described as meaning “a secondary school, college, university or technical institute, and includes an associated pre-school, primary school, or institution for the care and maintenance of children” pursuant to Schedule 1, Development Regulations, 1993. This is not listed as a complying or non-complying form of development within the Neighbourhood Centre Zone and must therefore be assessed on merit. (Emphasis in original).
2Whilst the Neighbourhood Centre Zone (NCe) predominantly seeks the accommodation of commercial type uses (including shopping, office, medical and recreational facilities and the like) of a low traffic generating nature, the zone does not discourage or discount the development of land for a primary school. The proposed use of the site for a primary school is reasonably consistent with a “community facility” envisaged for the zone. By virtue of the fact that a primary school involves the “care and maintenance of children” and given that the school will be drawing their students from a local and wider community, this form of development satisfies metropolitan Adelaide Objective 16 which confirms that a primary school can be considered as a “community facility”. In turn, this proposal has demonstrated that the development involves a land use which is appropriate within the NCe Zone which is conveniently accessible to the population it serves and is compatible with the variety of land uses in the immediate locality, in particular the amenity of adjacent residential properties located within the Residential (General) Zone.
3Whilst not expressly anticipated within the zone, the proposal nonetheless satisfies the primary intent of the zone in terms of land use.
4It has been noted that the NCe Zone for this portion of South Road specifically promotes retail development of up to 2000m² in floor area as per Concept Plan, Figure NCe/3. Although at variance to the Concept Plan, the proposal demonstrates the following:
4.1     The proposal represents a lower intensity use than the existing retail land use and therefore more suitable adjacent to residential properties;
4.2     The proposed conversion of the existing dwelling on Allotment 2 is consistent with the intention of the Concept Plan, Figure NCe/3 in that the site has been identified as a “potential redevelopment area”;
4.3     Council Wide Principle of Development Control 24 (relating to non-residential development in a residential zone) identifies schools as being appropriate within residential zones;
4.4     The development respects and is compatible with the nature and character of existing surrounding development by virtue of being small in scale (Principle of Development Control 2 of the Neighbourhood Centre Zone);
4.5     The proposal ensures the designated areas for the ancillary activities relating to the primary school are confined within the school premises central to the site and removed from residential properties;
4.6     The retention of the existing building façade to South Road retains a continuous built form edge along the street in keeping with the other commercial land uses so that the building appears (at least superficially) to continue the retail frontage; and
4.7     The development is sensitive and complementary to existing residential amenity in terms of noise, traffic and parking impacts.
5Therefore, in respect to the above, it is considered that the proposed development is appropriate for the subject land and locality and is in accordance with Council Wide Principles of Development Control 24 and Neighbourhood Centre Zone Objectives 1 and 2 and Principles of Development Control (PDC) 1, 2 and 7. The proposal does not detract from the character of the zone, given the existing features of the locality and although the use is not retail, it is unlikely that the proposal will have a detrimental impact upon further development of the zone for retail land uses as prescribed in Concept Plan, Figure NCe/3.
The report then goes on to deal with discrete issues such as car parking, access to the site, noise, landscaping and fencing. It concludes:
RETAIL DEVELOPMENT/NEIGHBOURHOOD CENTRE ZONE:
6Whilst Council’s Development Plan reinforces the objective for Metropolitan Adelaide in that there should be a rational distribution of shopping and commercial centre developments throughout metropolitan Adelaide, Metropolitan Adelaide Objective 12 and Council Wide Objective 21 also reinforces a primary school facility as appropriate in the Neighbourhood Centre Zone (NCe). The NCe Zone seeks to accommodate “a range of shopping, office, business, medical, community, entertainment, recreational and service facilities, at a scale to meet the needs of the surrounding neighbourhood”. The reference of a primary school as being a “community use” is also contemplated by Zone Objective 1, for establishment within the NCe. Therefore, it is considered that it is unlikely that the proposal will have a detrimental impact upon the further development of the zone for retail land uses as prescribed in Concept Plan, Figure NCe 3. Other sites throughout the locality have the capability to be redeveloped for retail/commercial use to some extent in the future which will not be inhibited by the existence of a primary school nearby. As the primary school will be the sole educational establishment within this zone, this reinforces the role it will play in its own right
ANALYSIS/CONCLUSION
7Having regard to the Development Plan provisions and the particular circumstances of the site, it is recommended that the proposal warrants approval.
8It is considered that the proposed use of the subject site as a primary school will not create the potential where safety and the current level of amenity enjoyed by residents of the locality will be detrimentally affected.
9Whilst retail or commercial development is encouraged in the first instance, it is considered that a community use (primary school), on balance, is acceptable within the Neighbourhood Centre Zone having regard to the overall improvement to the visual amenity, the reduced intensity of use on the site, retention of existing “significant” trees, confinement of school activities to central areas of the site and the obvious traffic and pedestrian safety improvements generated by the proposal. Accordingly, Development Plan Consent is warranted.
Attached to the report was a recommendation for the grant of development consent subject to 13 suggested conditions, all of which were included in the 15 conditions imposed by the Panel.
It is immediately apparent from these extracts that the planner’s report addresses the task of considering the development against the provisions of the Development Plan as required by s 33(1)(a) but fails entirely to consider whether the development is seriously at variance with the Development Plan as required by s 35(2). Neither the expression “seriously at variance” nor the expression “seriously at variance with the Development Plan” is to be found in the report. Although the term “variance” is used in paragraph 3, there is no examination of the question of the extent to which the development departs from the intent of the Development Plan, that is to say, the extent of the variance. The key to the planning officer’s views in preparing her report is the last sentence in paragraph 1:
This is not listed as a complying or non-complying form of development within the Neighbourhood Centre Zone and must therefore be assessed on merit.
The statement that the proposed development must be assessed on merit is a clear expression of the fact that the planner’s report addresses only the question arising under s 33(1)(a) and that the question whether development is seriously at variance with the Development Plan is not being addressed. The rest of the report only serves to emphasise that conclusion. Finally, the conclusion to the report contains no reference to the question whether the development is seriously at variance with the Development Plan. The whole report is no more than an assessment against the Development Plan as required by s 33(1)(a).
The thrust of the planner’s report is to the effect that a primary school is a community facility and as such is a use consistent with the objectives of this Neighbourhood Centre Zone. I will examine the validity of that argument in a moment. At present it is sufficient to note that the report consistently fails to address the question whether the development is seriously at variance with the Development Plan. The decision is, therefore, invalid because the Panel has failed to discharge a task committed to it by s 35(2) of the Development Act.
The Development is Seriously at Variance
Lest I have erred and the Panel did address the question whether the proposed development is seriously at variance with the Development Plan, I consider whether the decision is valid. It is necessary to note the role of the court when considering that question. The question whether the development consent is invalid does not turn upon the court’s assessment of the question whether the development is seriously at variance with the Development Plan but on whether the consent is invalid because it results from a mistake of law, from reliance upon irrelevant matters, from a failure to take into account relevant matters or if the decision is one that no reasonable authority could properly have reached. As the Full Court said in Upham at [149]:
The cases to which we have referred indicate that a failure to conclude that a development is seriously at variance with the Development Plan, or a conclusion that a development is not seriously at variance, will be invalid if the decision results from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter, or if the decision is one that no reasonable authority could properly have reached.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, Mason J warned of the difficulties in determining what are relevant and irrelevant considerations. As that warning is repeated by the Full Court in its judgment in Upham, I do not repeat it but have regard to it. In this case, what is relevant and irrelevant will turn upon the nature of the development disclosed in the development application and the provisions of the Development Plan: Upham at [156]. The Development Plan expressly directs the decision-maker, that is to say, the Panel, to the provisions of the Development Plan in both s 33(1)(a) and in s 35(2) of the Act. The factors to which the planning authority must have regard are those prescribed by the Development Plan and, to the extent to which they are applicable, the provisions of the Development Regulations. In this case, there is no relevant provision in the Development Regulations.
Paragraph 2 of the planner’s report argues that a primary school is a community facility. The report asserts that the school will be drawing its students from a local and wider community. That does not fairly represent the full picture. It was common ground on this appeal that the school will draw its students from all over the metropolitan area. There is no evidence as to the extent to which students will come from the local as distinct from the wider community. The Council’s planning officers should have made that enquiry. That enquiry was relevant because of the terms in which Objective 16 is expressed. Objective 16 reads:
Appropriate community facilities conveniently accessible to the population they serve.
The commentary that follows includes this paragraph concerning primary schools:
Primary schools should be within reasonable walking distance of children’s homes, and so located that children do not have to cross main traffic routes on their way to and from school. State primary schools are usually located about one kilometre apart, each school serving a population of approximately 6500 persons.
This is plainly a provision of a very general application. That is a consequence of the fact that Objective 16 is one of the Metropolitan provisions. Those provisions express objectives and principles of development control that have a broad application. Many express fundamental principles of good town planning. They do not descend to detailed provisions of any zone. Instead, they provide a background against which the provisions applying in a particular zone might have to be considered. Objective 16 is an example of an elementary proposition of planning principle. As Objective 16 is a provision which forms part of the policies for the whole of the metropolitan area, it is necessarily expressed in general terms and must yield to the more detailed and more particular provisions in the Development Plan relating to a specified zone. In common with the rules of construction of other documents, special provisions in a Development Plan prevail over those which have a more general application.
MPS does not intend that the proposed school should not serve only students within walking distance. It is reasonable to infer that the greater number of students would come from points a considerable distance from the school who would be driven to school. The conclusion in the last sentence in paragraph 2 that the school is conveniently accessible to the population it serves, therefore, misstates the true position.
That misstatement at the end of paragraph 2 has the consequence that paragraph 3 contains an entirely incorrect conclusion. That aside, the provisions of the Development Plan relating to Neighbourhood Centre Zones and, in particular, Principle 7 make it abundantly clear that the proposed development does not satisfy the primary intent of this Neighbourhood Centre Zone. As has already been noted, the primary intent of this Neighbourhood Centre Zone is that it should have a retail focus on the South Road frontage. That is expressly acknowledged in the first sentence of paragraph 4 of the report. The proposed school is contrary to that goal. There is a remarkable inconsistency between the conclusion in paragraph 3 and the opening words of paragraph 4. Significantly, the planner’s report misconceives the true intent of Principle 7.
Paragraph 4 contains an irrelevant factor in that it refers to Principle 24 of the Principles of Development Control that operate throughout the Council area (what the report calls in paragraph 4.3, “Council-wide Principle of Development Control 24”). Principle 24 relates to non-residential development in residential zones. It has no relevance except in a tangential way in that this Neighbourhood Centre Zone adjoins a Residential Zone to the west. Paragraph 4.2 does not provide the full picture. While the concept plan NCe/3 shows that the land on which the dwelling that is to be converted stands is marked for re-development, that re-development is intended to be complementary to the proposed retail area. A glance at the concept plan shows that the allotment joins allotments on South Road. It is clearly intended for use as car parking or for other community facilities that are complementary to the retail use.
When read as a whole, paragraph 4 is a list of arguments that might well be advanced in support of a proposal to amend the Development Plan. However, that is not the task that the Panel had to discharge. I refer again to the remarks of Bleby J in Alexandrina Council at [39] earlier in these reasons. The Panel had to consider two questions. They were to assess the development against the Development Plan and to consider whether it was seriously at variance with the Development Plan. The Panel considered only one of those questions, a conclusion confirmed by the terms of paragraph 5 of the report.
Paragraph 7 of the planner’s report refers to the fact that the Development Plan proposes a hierarchy of centre zones. In descending order, they are Regional Centres, District Centres, Neighbourhood Centres and Local Centres. It is to be noted that District Centre B Zone which is at Hallett Cove contains one Objective. It is expressed in these terms:
Objective 1:                 A zone primarily accommodating a range of cultural, community educational, religious, administrative and recreational facilities complementing the District Centre A Zone which it adjoins.
That Objective is repeated in Principle of Development Control 1 for that zone:
PRINCIPLES OF DEVELOPMENT CONTROL
1Development undertaken in the District Centre B Zone should be, primarily, a range of cultural, community, entertainment, educational, religious, administrative and recreational facilities.
This is an instance of a distinction being drawn between community facilities and educational facilities. That distinction is not to be found in the provisions relating to the Neighbourhood Centre Zones. That fact must be considered in conjunction with the fact that the Neighbourhood Centre Zones throughout the Council area vary significantly in size. Paragraph 7 fails to draw attention to these differences in size and the inability of those zones to accommodate schools. Objective 21 of the Council-wide provisions states that one objective is:
A rational distribution of integrated centres through the city.
Objective 12 of the Metropolitan provisions is one of several objectives which deal with the hierarchy of Regional Centres, District Centres, Neighbourhood Centres and Local Centres.
Objective 12:    Neighbourhood centres to include shopping facilities that provide mainly ‘convenience’ goods to serve the day-to-day needs of the neighbourhood, and a limited range of more frequently required ‘comparison’ goods as well as a narrow range of facilities. There are not likely to be administrative facilities in neighbourhood centres.
The commentary on Objective 12 includes a statement that primary schools are appropriate in those kinds of centres.
The size of a neighbourhood centre and the range of facilities within it may vary within the area of metropolitan Adelaide but it should be related to the size and characteristics of the population it serves. The largest neighbourhood centres should serve a population in the order of 10,000 people.
Effect has been given to that by establishing a number of Neighbourhood Centre Zones in the Council area. They vary in size. Some are quite small containing five or six allotments, allotments of a size comparable to many residential allotments throughout Metropolitan Adelaide. Other Neighbourhood Centre Zones are larger. This Neighbourhood Centre Zone contains only 17 allotments of which five are proposed to be used for this school. The plain fact is that most of the Neighbourhood Centre Zones including the subject zone are precluded by their limited size from being suitable both for schools and for development of the kind proposed by the Development Plan in each zone. More particularly, Principle 7 and concept plan NCe/3 make it clear that the intended focus for this zone is retail. A comparison between concept plan NCe/3 and concept plan NCe/2 is instructive. That plan shows a Neighbourhood Centre Zone at the junction of Oaklands Road and Marion Road. The Plan marks an area to be used for educational purposes, albeit an area not within the Neighbourhood Centre Zone. In contrast, there is nothing in concept plan NCe/3 that in any sense suggests that part of that zone should be developed for a school.

The planner’s report seeks to avoid the fact that the use of a large part of this zone for the school will defeat the intent of the Plan that it be used for retail purposes by asserting in the second last sentence that other sites throughout the locality have the capacity to be re-developed for retail or commercial use to some extent in the future. Earlier in her report, the Council’s planner had defined the locality in a way that indicated that it is not confined to the land within this Neighbourhood Centre Zone. The second last sentence is a bold assertion with no regard to existing development in the locality. There is no indication of sites either available or suitable for re-development for retail or commercial use.
The report is, therefore, replete with incorrect assertions of fact and incorrect statements as to the meaning and effect of the Development Plan. The report also portrays a misunderstanding of the effect and operation of the Development Plan. As is apparent, the errors of law are compounded by the fact that the Panel had regard to irrelevant considerations.
The existence of an opinion as to whether a development is seriously at variance with the Development Plan is a condition of the exercise of the power to grant development consent: Upham at [133] and [134]. If the opinion is grounded on a failure to understand the true meaning and intent of the Development Plan, there is an error of law and the necessary opinion does not exist: R v Connell; ex parte Hetton Bellbird Collaries Ltd (No 2) (1944) 69 CLR 407 at 430. Later at 432 Latham CJ added:
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed.
These remarks were followed and applied in Upham at [136] and [137]. See also Buck v Bavone (1976) 135 CLR 110 at 118 to 119 per Gibbs J who said:
Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
For these reasons, the development is seriously at variance with the Development Plan.
The Panel has, therefore, both failed to address the question whether the development is seriously at variance with the Development Plan and, if it did, it has had regard to a variety of irrelevant factors and has failed to consider relevant factors. For those reasons, the development consent is invalid and the decision granting development consent must be set aside.
The Reserved Question
Section 33(3) of the Development Act authorises a planning authority to reserve its decision on a specified matter. It reads:
(3)A relevant authority may, in granting a development plan consent, reserve its decision on a specified matter until further assessment of the relevant development under this Act.
The Panel did not determine all of the planning issues relating to the development proposed by MPS. It reserved two matters for later consideration and determination. The notice of its decision reads:
16. Reserved matters:
The following detailed information shall be submitted for further assessment and approved by the Council as reserved matters under Section 33(3) of the Development Act 1993:
(a)That a 3.0 metre high chain wire mesh fence be erected at a minimum distance of 2.0 metres inside from the northern property boundary of 19 Wingfiled Street prior to occupation and use of the subject site. Details of which shall be submitted to Council for consideration and approval, prior to Development Approval being granted.
(b)That a detailed landscaping plan and planting schedule, nominating semi-mature plantings located within the northern property boundary and the 3.0 metre high chain mesh fence, and throughout the site, shall be submitted to Council for consideration and approval, prior to Development Approval being granted.
A little later in the notice under the heading “General” the following paragraph appears:
The applicant is reminded that Development Approval is required for any fencing exceeding a height of 2.0 metres.
The plaintiff contends that the Council has not acted in accordance with the terms of s 33(3).
The issue concerning the fence arose in this way. The development application did not propose a high fence on the northern boundary where the proposed development adjoins a residential property. After the Council had given notice of the development application in accordance with s 38 of the Act, Mr Smith met officers of the Council on the site on 21 November. As a result of that meeting, Mr Smith sent a letter dated 23 November dealing with issues discussed at the meeting. One issue to which Mr Smith referred was fencing. The letter said:
c) Fencing
You commented on the condition of various dividing fences around the perimeter of the site, and in particular on the condition of the fence abutting the northern boundary of the allotment that will be used for the staff/headmasters office.
It is not intended to replace all boundary fencing, since some of the fencing is in reasonable condition. When the plans are being detailed for building rules consent, it is expected a separate application will be lodge (sic) for the construction of 2.4 metre high chainwire mesh fencing, where it is required to protect adjoining residential properties. This fencing is likely to be installed inside the boundary of the allotment by a distance of about 1 metre, and the space between the two fences landscaped with screening plants (pittosporum tenuifolium or similar). A detailed landscaping plan will be prepared and is expected to be provided to Council prior to Development Consent being sought. If Council considers it appropriate a condition of consent could be imposed to give effect to this intention.
If Council considers it appropriate to do so it could by condition also require certain fencing to be replaced.
The question of fencing was mentioned in a planner’s report to the Panel. Her report on the question of fencing begins with the statement:
Concerns have been raised by representors regarding the proposed fencing to be erected around the school perimeter.
After discussing other issues relating to fencing, that part of the report dealing with fencing concludes:
After discussions held with Mr Jeff Smith of Planning Chambers Pty Ltd, it is the intention to erect a new 2.4 metre high chain wire mesh fence adjacent to the northern property boundary of the former residential dwelling site at 19 Wingfield Street in the near future. It is likely that this will be erected at a distance of 1.0 metre from the existing property boundary however this does not form part of the application. It has been mentioned that the space between the two fences will be landscaped with screening plants to assist in noise reduction, protection of residents’ private yard areas of ancillary school activities and preservation of privacy of adjoining residents. Given that this information has not been provided, it is recommended that a separate Development Application be submitted to Council, albeit serious impacts are not envisaged at this stage. It is strongly recommended, however, that the existing fence along this northern property boundary must be replaced with a suitable 1.8 metre high colorbond fence and this should be reinforced by a condition of consent.
It is clear that the Panel were concerned with the issue of fencing and dealt with it by reserving the question for later consideration in the manner already noted.
The erection of a fence more than two metres high constitutes a development. That is the effect of the combined operation of the definitions of “building”, “development” and “structure” in s 4 of the Development Act as well as both regulation 7 and paragraph 1(e) of Part 4 of Schedule 3 of the Development Regulations. Thus, if MPS intended to erect a fence three metres high, it was necessary for it to apply for development consent to erect the fence because it was not part of the initial development application.
It is first necessary to determine the meaning and effect of s 33(3). It empowers a planning authority to grant a development consent but at the same time reserve its decision on a specified matter until further assessment of the development. It is a curious provision in that it authorises a planning authority to make a grant of provisional development plan consent notwithstanding that some issues are still being considered. It is a power that must be exercised with great care.
The primary purpose of s 33(3) is to enable approval of a staged development. It might also be utilised to deal with something that is quite incidental to the development and does not effect the question whether development consent should be granted. An example is an application for signs relating to the development. The grant or refusal of development consent for the signs may have no bearing on the issue whether development consent should be granted and the development can proceed whatever decision is made about signs.
However, the power cannot be exercised in circumstances where the specified matter bears upon the question whether development consent should be granted. When determining whether to grant development consent, a planning authority should consider the proposal as a whole. It is necessary to consider every aspect because a particular matter may be fundamental to the issue whether development consent should be granted. For example, a planning authority should not grant development consent to a large shopping centre that will generate a large volume of traffic but reserve the question whether the means of ingress and egress are satisfactory and whether there is adequate car parking. The question whether there is adequate car parking as well as suitable means of ingress and egress are important matters affecting the question whether development consent should be granted to that shopping centre. To grant development consent for the shopping centre and reserve the question of access and car parking has the consequence that the planning authority fetters the exercise of its discretion whether to grant or refuse approval of the means of access and car parking. If a planning authority grants provisional development plan consent but at the same time the planning authority reserves an issue which is material to the grant of provisional development land consent, the planning authority puts undesirable constraints upon its later consideration of the question whether it is proper to grant consent for the reserved matter. That in turn raises questions as to whether development consent has been granted. The status of the development consent will be in question if the planning authority is not prepared to approve the proposed access and car parking. The position is to be contrasted with the grant of a development consent subject to the developer submitting plans of ingress and egress and car parking proposals to the reasonable satisfaction of the planning authority. In that case, the development consent will not operate unless and until the planning authority has approved the plans of ingress and egress and the proposed car parking.
In this case it is apparent that the Panel believes that a fence three metres high is necessary, presumably to prevent balls and other objects escaping from the play areas at the school into neighbouring residential property to the north. It is so firmly of the view that the fence is material to the grant of development consent that it has reserved the question whether to grant development consent for the fence pending an application to erect the fence. It has stipulated that it will not grant development approval under s 33(4) of the Act unless and until an application has been submitted for a fence three metres high and it has been approved. It is clear that the Panel believes that the fence has a material bearing on the question whether development approval should be granted. It is not an incidental question in the mind of the Panel. If that had been so, the Panel would not have stated that development approval not be granted unless an application for a fence three metres high has been made and is approved. The reservation of the issue of the fence does not accord with the intent of s 33(3). The reservation of that issue therefore renders the grant of development consent invalid.
There is a further reason for this conclusion. MPS had not lodged an application for development consent for a fence three metres high. There was, therefore, no specified matter on which the Panel could reserve its consideration. MPS might decide that it does not wish to apply for development consent for a fence more than two metres high. In that case there will have never be any matter for the Panel to consider. In other words, the expression “specified matter” in s 33(3) refers to some aspect of the development that forms part of the development application. It might even refer to a separate application for one aspect of the initial development application. It cannot refer to a matter that is not the subject of the development application.
Mr Henry, who appeared for the Council, submitted that the reservation is severable. The submission must fail because the clear inference from the Panel’s decision is that the fence is perceived by the Panel to be material to the question whether development consent should be granted. The Panel has made that so clear that it is not possible to sever the condition: Twenty Seven Properties Pty Ltd v District Council of Noarlunga (1975) 11 SASR 188.
Mr Henry also submitted that as the plaintiff was not directly affected by the fence, it had no standing to agitate this issue. I do not agree. The plaintiff has standing to contend that the development consent is invalid. The plaintiff has demonstrated that the grant of development consent affects its interests. The plaintiff is, therefore, entitled to agitate any issue that affects the validity of the grant of development consent. The fact that the fence does not directly affect the plaintiff’s interests may be relevant to the exercise of the discretion whether to grant relief but it is not relevant to standing.
Other Issues
Given that the grant of development consent has been held to be invalid on two grounds, it is unnecessary to deal with the remaining questions at any length. I briefly state my reasons for concluding that the plaintiff fails on those grounds.
The DTEI Issue
Section 37 of the Development Act and Part 5 of the Development Regulations prescribe a régime for referral of applications for developments of a prescribed class to various agencies or instrumentalities of government. The Council formed the view that the development should be referred to the Commissioner of Highways because it altered existing access to South Road. The DTEI responded on behalf of the Commissioner. It opposed any access to South Road but was prepared to approve a proposal that allowed access to South Road. The proposal considered by DTEI had two points of ingress and egress to Wingfield Street. After the DTEI had replied to the Council, MPS amended its proposals for ingress and egress to Wingfield Street and the proposed traffic flow. The amendment has the capacity to affect the volume of traffic which will seek access to or from the site via the South Road frontage. The Council did not refer the amendment to the Commissioner of Highways.
The plaintiff contends that the failure to refer the amended proposal invalidates the consent. The terms of Regulation 27 of the Development Regulations defeats that argument. Regulation 27(1) provides:
(1)If a relevant authority has referred an application to a prescribed body under this Part 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, it may repeat the referral process, and must do so if it appears that the additional information or amendment is significant.
Regulation 27(1) applies in this case because the Council had already referred the application to the Commissioner of Highways. After it had received reply from the DTEI, it then received an amended proposal for ingress and egress. However, I am not satisfied that the amendment was significant. The Council was, therefore, not obliged to repeat the referral process.
The plaintiff also submits that the Panel failed to have regard to the DTEI report and failed to understand its true purport. I have carefully read the planning officer’s report to the Panel. On balance, I believe that it does not betray a misunderstanding of the concerns of the DTEI. Furthermore, while the Panel is required by Regulation 25 and Schedule 8 of the Development Regulations to have regard to the recommendations of the Commissioner of Highways, the Panel is at liberty to decide that it will not act on those recommendations.
Variations to the Development Application
After the development application had been made, MPS made four alterations to the proposal. They were:
1an alteration to exclude land owned by the plaintiff from part of the play area for the proposed school;
2alterations to the arrangements for ingress and egress to the site;
3deletion of two car parks; and
4to foreshadow construction of a cyclone wire mesh fence 2.4 metres high.
The first variation can be immediately put to one side. Portion of the plaintiff’s land had been erroneously included as part of the development. The amendment was immaterial and did not affect the interests of those making representations or affect the nature of the development.
MPS and Mr Smith might be criticised for the manner in which the other three alterations were made. They do affect the proposal and any consideration of it. An applicant for development consent should submit the whole of the proposed development for approval. Piece-meal applications run the risk of invalidity: Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435. Those considerations must be weighed against s 39(4) of the Development Act which authorises a planning authority to permit an applicant to vary an application provided that the essential nature of the development is not changed. The amendments did not change the essential nature of the proposed development. This ground also fails.
Conclusion

The plaintiff has demonstrated that the grant of provisional development plan consent by the Panel is invalid on the grounds that:
·the Panel failed to determine whether development was seriously at variance with the Development Plan, or
·if it did consider that issue, the development is seriously at variance with the Development Plan, and
·the Panel has unlawfully used the power provided by s 33(3) of the Development Act to reserve specified matters.
The remedies of certiorari and declaration are both discretionary. It has not been suggested that there is any reason why I should exercise discretion to refuse to grant the relief sought by the plaintiff, and in my view, there is none. For these reasons, there will be an order declaring invalid the grant of provisional development plan consent.