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McKenzie Constructions Pty Ltd v Development Assessment Commission

McKenzie Constructions Pty Ltd v Development Assessment Commission

Case [1999] SASC 386 24 September 1999

Development Plan

Development Consent

Planning Authority

Condition of Approval

Variation of Application

Assessment of Development

Adequate Car Parking

Seriously at Variance with Development Plan

Planning & Development Law

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McKENZIE CONSTRUCTIONS PTY LTD v DEVELOPMENT ASSESSMENT COMMISSION and OTHERS
[1999] SASC 386

Full Court: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. In my opinion the appeal should be dismissed, for the reasons given by Bleby J.
BLEBY J. McKenzie Constructions Pty Ltd (“the appellant”) was the applicant for provisional development plan consent for the construction of a large entertainment complex at Montague Road, Modbury. It was intended to form part of an existing regional centre at Modbury.
The original proposal, when lodged, sought provisional development plan consent for an office and entertainment complex. The office part of the development was an extension to the second level of existing offices contained within the Tea Tree Gully Council civic centre. The area of the office extension was to be 983 square metres. That was to be supported by a new and larger car-park at first floor level, with further development of an existing car-park underneath at ground floor level. It appears that the proposed car parking areas were to service both the civic centre and the entertainment complex, but that the car-park, whilst it adjoined the entertainment complex at certain points was structurally independent of it. The proposed office extension did not adjoin or form any part of the entertainment complex.
The proposed entertainment complex was to be a large multi-purpose facility. It comprised a storage basement, two floors and a mezzanine area, with a total area of 2177 square metres. It was envisaged that the ground floor would contain a facility with bars, dining area, a liquor store and drive through bottle department, whilst the first floor would comprise a nightclub, cocktail bar and pool hall. The mezzanine area was to be developed as a kind of club which would form part of the premises but provide admission to members only. Application had been made to the Liquor Licensing Court for a hotel licence for the premises.
The land on which the entertainment complex was to be built was owned by the Corporation of the City of Tea Tree Gully (“the council”). The Council had contracted to sell the land to the appellant. The office extension, however, was an extension to a building already owned by the Council, and although the Council was not the primary developer, it was suffering or permitting the development to commence or to proceed and therefore, for the purposes of s 34(1)(b)(ii) of the Development Act 1993 (“the Act”), it was development to be undertaken by a Council (see also definition of “to undertake development” in s 4(1) of the Act). Because the development included the construction of an office, it was also development of a prescribed kind for the purposes of that section, being prescribed by Regulation 38(1a)(a)(i). For that reason, the Development Assessment Commission (“the Commission”) was the relevant planning authority rather than the Council.
The application was treated as a Category 2 development. That means that by virtue of s 38(4) of the Act, notice of the application was to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McKenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386
Case: [1999] SASC 386
Decision Date: 24 September 1999

CaseChat Overview and Summary

The case of McKenzie Constructions Pty Ltd v Development Assessment Commission involved an appeal by the applicant, McKenzie Constructions, against a decision by the trial Judge to grant relief to the respondents, Kipa Freeholds Pty Ltd and Normandy Pty Ltd, who were objectors to the proposed development. The proposed development was an entertainment complex to be constructed at Modbury, with an office extension to an existing civic centre. The Development Assessment Commission (Commission) was the relevant planning authority for the proposed development. The case raised several issues, including whether the development was a non-complying development, whether it should have been classified as a Category 3 development, and whether the Commission erred in law in allowing the applicant to vary the application. The Full Court dismissed the appeal, finding that the Commission had erred in law in permitting the variation of the application and in imposing a condition that altered the nature of the proposal. The Court also found that the Commission failed to consider the totality of the proposal against the relevant Development Plan and had not assessed whether the original proposal was seriously at variance with the plan. The appeal was dismissed, and the Full Court held that the Commission should reconsider the application according to law.

Orders