McKenzie Constructions Pty Ltd v Development Assessment Commission

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 given in accordance with the regulations to an owner or occupier of each piece of adjacent land and to any other person of a prescribed class. No such class has been prescribed. “Adjacent land” is defined in s 4 of the Act. It is not necessary for present purposes to consider that definition. The respondents to this appeal were given notice of the application. Section 38(7) of the Act provides that where notice of an application in respect of a Category 2 development has been given, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent. Copies of such representation must be made available to the applicant (s 38(8)), and the applicant must be given an opportunity to respond in writing. The authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation (s 38(10)). The respondents were given such an opportunity. There is no appeal from a decision on a Category 2 development.
One of the issues in the case is whether the application should have been classified as a Category 3 development. If it were a Category 3 development, notice would not only have to have been given to those entitled to the notice of a Category 2 development but also to any other owner or occupier of land which, according to the determination of the authority, would be directly affected to a significant degree by the development if it were to proceed, and to the public generally (s 38(5)). The same provisions relating to written representations apply as to a Category 2 development, but in the case of a Category 3 development, the authority must allow a person who made a representation a reasonable opportunity to appear personally in support of the representation (s 38(10)(b)). Persons who make representations in respect of a Category 3 development must be given notice of the decision and of the person’s appeal rights (s 38(12)), and an appeal against the decision may be taken to the Environment Resources and Development Court.
Between the date of notice of the application and the Commission’s first meeting to consider it (14 July 1998) the appellant amended the proposal by deleting the proposed office extension. In all other respects the plan was as it had been originally lodged. The alteration merely meant that there was no office extension at level 2, and the whole of the level 1 carpark became an open carpark.
The amendment was not treated by the Commission as a fresh application and was not readvertised. Copies of the amended plans were apparently received by the agent of at least one of the objectors on 9 July 1998, although it is not clear from whom it was received.
At its meeting on 14 July 1998 the Commission first considered the application and heard those who had lodged representations opposing the development and who had indicated that they wished to be heard. Consideration was adjourned to the meeting of 11 August 1998 and again adjourned to 8 September 1998, at which meeting the Commission granted provisional development consent. In the meantime, on 2 September 1998, the Commission had received from the appellant another set of amended plans concerning traffic circulation around the drive-through bottle shop and car-park. There were no alterations to the proposed buildings.
The respondent Kipa Freeholds Pty Ltd is one of the registered proprietors of the land on which the Modbury Hotel is erected. The respondent Normandy Pty Ltd is a lessee of that hotel and holds the licence in respect of it under the Liquor Licensing Act 1997. The Modbury Hotel is close to and in effect forms part of the Regional Centre. It is about 200 metres from the proposed entertainment complex. The respondents were given notice of the application.
Following the granting of development consent the respondents took judicial review proceedings in this Court seeking to have the determination quashed on a number of grounds. A single Judge of the Court granted the relief sought by the respondents. It is against that decision that the appellant now appeals. The appeal raises a number of issues, and it is convenient to deal with them in turn.

Whether the development was a non-complying development

Whether or not a development is a non-complying development affects the process by which approval can be granted. Section 35(3) of the Act effectively provides that where the relevant planning authority is the Commission, the application for provisional development plan consent in respect of a non-complying development cannot be granted, in circumstances such as these, without the concurrence of both the Minister and the Council. The consent of neither was obtained in this case. A non-complying development is one so described in the relevant Development Plan.
Principle 46 of the Principles of Development Control for the Regional Centre Zone for the City of Tea Tree Gully relevantly provides as follows:

“Non-complying development
46.... The following kinds of development are non-complying in the Regional Centre Zone:
(a) ....
(b) on land adjoining Civic Park:
(i).... development on a site less than 2 000 square metres in area

(ii) consulting room
(iii).. office with a total floor area greater than 1 000 square metres in any one development.
(iv)shop with a total floor area greater than 1 000 square metres in any one development

(c) ....”

The principle is inelegantly drafted, but it is one of the principles which applied to this development. The objection taken by the respondent, which succeeded before the trial Judge, was that in respect of the application as originally made, the office extension, although itself having an area of only 983 square metres, when added to the existing office, created a floor area far greater than 1000 square metres. The floor area of the existing office space was approximately 1250 metres, thus rendering it a non-complying development if it had been the subject of an application at that time. It was argued that the extension together with the original office building should be treated as the one development for the purposes of principle 46(b)(iii). The argument of the appellant was that the only “development” concerned was that for which approval was sought, and the office component of that development was less than 1000 square metres.
The trial Judge considered that the intention of the principle was to limit the area of any office in any one development or complex to 1000 square metres and that the word “development” appearing in principle 46(b)(iii) was used in a manner different from its statutory definition. He therefore considered that the proposed office extension was a non-complying development within the meaning of principle 46.
The Commission did not give approval to the application as lodged. It was varied by the appellant after lodgment. The Commission purported to approve a development which excluded the office component. The development actually approved was not one which was a non-complying development. There are other reasons why, in my opinion, the trial Judge was correct in granting relief to the respondents. It appears that whatever may be the outcome of these proceedings the appellant no longer wishes to proceed with the office component of the development. Therefore the question of whether the original application was for a non-complying development is somewhat academic. It is not now likely to arise on any future consideration of the application or of any application that may be substituted for it. In those circumstances I prefer not to decide the question.

Category 2 or Category 3?

As has been seen, whether a proposed development is a category 2 or category 3 development affects the notices which must be given, rights of representation and rights of appeal. It was common ground that if the development was a non-complying development it was a category 3 development. If it was not, it was a category 2 development. It was treated by the Commission as a category 2 development. Once again it is not necessary to decide the question, as it is now not likely to arise on any reconsideration of the appellant’s application.

Variation of the application

Section 39(4)(a) of the Act provides:
“(4) A relevant authority may -
(a)... permit an applicant -
(i).... to vary an application;
(ii)to vary any plans, drawings, specifications or other documents that accompanied an application,
(provided that the essential nature of the proposed development is not changed);”
Regulation 20(1) has the effect that if an application is varied under s 39(4), the time prescribed by the regulations within which the planning authority may deal with the application is extended appropriately. Regulation 20(3) and (4) provides:
“(3) If an application is varied following referral under Part 5 or giving of notice under Part 6, the relevant authority may, if it is of the opinion that the variations are not substantial, consider the application without the need to repeat an action otherwise required under Part 5 or 6.
(4) If a variation would change the essential nature of a proposed development (as referred to in section 39(4)(a) of the Act), the relevant authority and the applicant may, by agreement, proceed with the variation on the basis that the application (as so varied) will be treated as a new application under these regulations.”
Part 5 of the regulations deals with the referral of applications to various statutory authorities for comment. Part 6 prescribes the applications of which public notice has to be given and to whom notice is to be given. Referral had been made and notices given under those respective Parts before the appellant sought to vary the application.
Regulation 20 has no effect unless an application is properly varied in accordance with s 39(4). The first requirement is therefore to consider whether the essential nature of the proposed development was changed by the variation. Only if the essential nature is not changed does a consideration of Regulation 20(3) arise.
The ability to permit a variation to an application does not depend on the formation of an opinion as to the nature of the change by the planning authority. Whether an application can be varied depends on satisfying an objective requirement that the essential nature of the proposed development is not changed. If the Commission erred in law in considering that the essential nature of the proposed development was not changed, it is open to this Court to intervene.
By contrast, Regulation 20(3), if the variation does not change the essential nature of the proposed development, depends on the formation of an opinion by the authority that the variation is not substantial.
There is no evidence that the Commission ever directed its mind to the question posed by proviso to s 39(4)(a) of the Act. It is not referred to in any of the minutes of the meetings of the Commission which dealt with the application. In the report of the Development Assessment Branch of the Commission submitted to its meeting of 14 July 1998, the author of the report merely said:
“The original application was also for office extensions to the existing Civic Centre comprising 983m▓ of floor space. This component has been withdrawn from the application (since public notification) as Council has decided not to proceed with this component and it may also have rendered the application non-complying. Without the office component, the proposal is a merit type.”
The trial Judge considered that the variation did change the essential nature of the development and that the Commission erred in permitting the appellant to vary the application. He considered that the Commission should have asked the appellant whether it wished either to proceed with the application as lodged or to withdraw it and start afresh. He held that the Commission had no authority to consider the amended application. I agree with that conclusion.
The description of the proposed development given on the original development application form was “office and entertainment complex”. On that part of the form on which it was required to give an estimate of the development cost, the appellant had caused to be written “Office $1,000,000 + Entertainment complex $3,800,000”. The cost of the office development was something in excess of one-fifth of the total cost, and the fact that the development could no longer be described as “office and entertainment complex” suggests a change in the essence of the proposal. It became a different proposal.
It was the office component which dictated that the Commission was the appropriate planning authority. Without that component and without a declaration by the Minister under s 24(1)(b)(vi), the proper planning authority was the Council. At that time there was no such declaration by the Minister. The deletion of that part of the development was therefore so significant that had it been lodged in that form initially, the Commission would not even have been the appropriate planning authority.
On the construction of principle 46 of the Development Principles applicable to Tea Tree Gully which was adopted by the trial Judge, it also made a difference as to whether the development was a non-complying development, and therefore whether the consent required the concurrence of other bodies in accordance with the requirements of s 35 of the Act.
What constitutes the essential nature of a development and whether there is a change to it in given circumstances may well prove somewhat elusive. It is impossible to list particular aspects of a development, any change to which will constitute a change in the essential nature of the development. It is an unclear and rather unhelpful expression. It is open to differing interpretations by the many planning authorities which may have to consider it, and yet a decision on the question will be fundamental to how the application is to be dealt with under Regulation 20, and whether it must be readvertised. Its interpretation may well be further confused in the minds of a planning authority by the use in Regulation 20(3) of a concept of variations that are not “substantial”. All this suggests that it is a matter to which Parliament might usefully direct its attention.
It might be said that a variation to a peripheral matter is not a change to the essential nature of a development, but that is only to restate the problem without solving it. What can be said is that the essential nature of a proposed development is not dictated solely by the visual impact of the proposal, nor merely by its effect on parking, traffic and access. A change in the essential nature of a proposal will certainly include a change in its character and description caused by the deletion of a major functional element, and that is what happened here. Whatever may be said about other situations, the change in the present case was so significant that there plainly was a change in its essential nature. Regulation 16 is a salutary reminder that in all cases where an assessment must be made of a proposal against the provisions of a Development Plan, the authority must first determine the nature of the development. Had that been done, and had it been reconsidered upon the appellant lodging its amended plans, the error may not have been made.
I therefore agree that the Commission had no power to allow the application to be varied in that manner, and that the only option was for the appellant to proceed with the original application or to withdraw it and to substitute a fresh application. In the circumstances prevailing at that time, a fresh application would have to have been determined by the Council. In those circumstances it would have been quite inappropriate for the trial Judge to have exercised his discretion against the granting of relief sought by the appellant, assuming that in other respects it was appropriate to do so.
The Commission therefore purported to consent to a development which it had no power to do. For that reason alone the respondents were entitled to their order and the appeal must be dismissed.

Was an Irrelevant Factor taken into account?

The consent granted by the Commission was subject to a number of conditions. The validity of Condition 2 was attacked by the respondents before the trial Judge. Whilst not passing on the validity of the condition as such, his Honour considered that by imposing the condition the Commission had misdirected itself and that it had regard to an irrelevant factor in determining whether to grant the consent. This was another ground on which relief was granted at first instance.
As the appeal must be dismissed in any event, it is not strictly necessary for this ground to be considered. However, as it may affect the course of any future application, it is appropriate to make some observations about it.

The question of adequacy of car parking for the number of people likely to attend the complex became a very important issue. The Commission was aware that it was an issue of major concern. The reports of traffic consultants supplied by the respondent and by the appellant expressed widely differing opinions. The Commission sought its own advice from an interstate firm.
Principle 28 of the relevant Development Plan encouraged the sharing or integrating of car parking areas between adjoining developments. It was intended in this case that parking areas provided for the Civic Centre, along with parking spaces provided adjacent to the entertainment complex should be shared between different activities that would generally have different peak parking requirements. This was described in the Development Assessment Branch’s report to the Commission as being “a major strength of the development”.
Having in mind, no doubt, the complementary activities of the adjacent developments, it imposed Condition 2 in the following terms:
“2..... The maximum number of people in the ‘Proposed Entertainment & Hospitality Complex’ shown on the amended plan Drawing No. 97/543/s8 Revision AB shall not exceed:
740 people between 6.00 p.m. on any night and 4.00 a.m. on the following day
......... 380 people between 7.00 a.m. and 6.00 p.m. on any day.”
In its notification of the decision to the appellant, the Commission stated:
“NOTES FOR APPLICANT:
1...... The purpose of Condition 2 (which restricts the number of people in the premises) is to regulate the amount of car parking generated by the development and to prevent overflow parking in adjoining areas.
....”
The power to impose conditions on development plan consent is contained in s 42 of the Act. It is a wide power, but there are constraints on its use. It cannot be used to obscure the primary question which a planning authority must ask itself, namely having regard to the objectives and principles of the relevant development plan, is the proposal a suitable and appropriate use of the land. Having identified that primary question the trial Judge in this case then said:
“It is only after that question has been answered affirmatively that the planning authority should turn its attention to appropriate conditions. This court has repeatedly reminded planning authorities that this is the correct approach: see, for example, Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 25 and, on appeal, Beer v South Australian Planning Commission (1988) 145 LSJS 284 at 289 to 290; Remove-All-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 at 34; and South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 390. As Jacobs J said in Beer v South Australian Planning Commission (supra) (at 25):
‘The primary question with which planning authorities are concerned is the question of land use, whether a proposed development, including a change of use, is compatible with the relevant provisions in the Development Plan and the orderly and proper planning of the locality. It is only when that question has been answered in the affirmative that the authority should concern itself with questions of management, and indeed there has been an alarming trend on the part of some planning authorities to use planning conditions to bring the management of the land, once planning approval has been given, under planning control and in some cases thereby to usurp the functions of other government or semi-government authorities.’
He made observations to like effect in Remove-All-Rubbish Pty Ltd v City of Salisbury (supra) (at 34):
‘The primary concern of a planning authority is to control land use and the first question to be addressed should always be whether in the circumstances the proposed development is at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the Development Plan. To approach a planning decision by framing conditions designed to make a proposal suitable and appropriate is to bypass the primary question.’
This reasoning was followed in South Australia Housing Trust v Lee (supra).
The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development or the land to be used in a way significantly different from the use or uses intended. The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development in a kind of strait jacket which will constrain the development from being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgment that the proposed development is inappropriate for the subject land.”
This principle was accepted by all parties to the appeal. I would not go so far as to say that Condition 2 in this case was unworkable, or unenforceable. The question is whether the condition is tantamount to an acknowledgment by the Commission that the proposal was an inappropriate one on proper planning principles. If it was, then the Commission, in giving its approval, failed to take into account a relevant factor, namely that the proposal was so defective that it should not have been approved. It so changed the nature of the proposal by the use of the condition that the proposal itself became something other than what was intended.
On the other hand, if the condition is properly characterised as regulating an incidental aspect of the original proposal, then the planning authority will not have erred in its function. In some instances, the line may be difficult to draw but it must be drawn.
The trial Judge in this case considered that the Commission had crossed the line and had misused the condition to modify the nature of the proposal. It went further than regulating an incidental or peripheral matter.
I agree that the Commission’s process miscarried in the imposition of Condition 2, and that for that reason also the trial Judge was correct in setting the determination aside. However, whilst I agree with the principal reasons of the trial Judge for reaching that conclusion, I do not accept in its entirety his Honour’s reasoning.
The trial Judge’s conclusion appears to rely heavily on a preliminary assessment by an inspector of the Liquor Licensing Commission of the maximum capacity of the premises being 1542 (excluding staff). That assessment was arrived at by looking at each of 10 separate areas and assigning a number of persons to each as that area’s maximum capacity. For the maximum capacity of the premises so assessed to be reached, every one of the diverse areas of the premises would have to be full at the one time. This was perhaps unlikely, given the diverse nature of the premises. With one exception to which I shall refer, there were no estimates given by any planning experts as to the numbers likely to attend at any one time either in any one part of the premises or in the premises as a whole. Their estimates of patronage were based on floor area rather than predictions of numbers likely to attend a particular facility in the complex at any given time.
The trial Judge seems to have assumed that, given this estimated maximum capacity and the fact that Condition 2 limited the numbers to 740 at night and 380 during the day, the Commission must have concluded that there was inadequate parking for the capacity of the complex. Because of that the Commission had sought to cure that defect by imposing the ceilings it did.
I prefer to approach the question from a slightly different direction. The Commission had before it the reports and opinions of four traffic experts. None of them, with one exception, made any assumptions about the number of people who would be at the premises at any one time. All of them made calculations of what they considered to be the car parking requirements for the premises based on a number of assumptions relating to the nature of the activities to be carried on in the different areas of the premises, and based also on surveys of vehicle use and car parking requirements associated activities to be carried on in each of the various components of the premises.
The number of available car parking spaces within the development site was finally accepted as being 295. Mr Frank Siow, a consultant engaged by the appellant, considered that the peak car parking demand for the premises would be on Saturday evenings, and he calculated the requirements, based on a number of assumptions as to car parking spaces per square metre required and expected occupancy rates for the various areas. It was his opinion that at 8.00pm on Saturday the parking demand would be for 268 spaces, and at 11.00pm for 294 spaces. Based on the assumptions that he had made, the number of parking spaces provided in the development was adequate to meet the expected need of the premises.
Mr Shane Foley was a consultant engaged by the Council. He had undertaken parking surveys associated with the Tea Tree Gully Civic Offices. He found that the demand for parking spaces was greatest in business hours on Monday to Friday. He supported the methodology and calculations adopted by Mr Siow. He considered that the various assumptions were reasonable, although he accepted that if the occupancy levels were underestimated there could be a shortfall in car parking. He did not suggest that they were, but suggested that “as a safeguard against the occupancy levels being underestimated, a control could be placed on patron numbers”. In calculating the numbers for that purpose he took a rather simplified approach by assuming that one parking space was required for every three patrons, which was a figure which had been shown to apply to a number of the larger areas of use. On the figures that he presented, after allowing for car parking demands associated with the Civic Centre, there were 135 available spaces during the day, which would accommodate 405 persons and 290 spaces available after business hours, thus accommodating 870 persons (the figure of 290 was in fact subsequently adjusted to 295). He considered that it would be worthwhile for a limit to be placed on the number allowed on premises as a safeguard, and he suggested the figures of 405 and 870 respectively.
Mr Siow was more detailed in his calculations of the numbers who might be present at what he regarded as the peak times on Saturday evenings. He calculated occupancy rates in the various areas at 8.00pm and 11.00pm on a Saturday night, based in part on the information which he had previously used, and arrived at a likely total occupancy of 816 persons at 8.00pm and 820 persons at 11.00pm. Applying that to the car parking demand which he had previously calculated, that equated to approximately 2.8 persons per car parking space available on site for all areas other than the nightclub, for which he adopted a figure of 2.5 persons per parking space. He did not provide figures for week day daytime use, but using his more conservative estimate, if a ceiling were to be imposed, he would have recommended 820 on a Saturday night, rather than the 870 recommended by Mr Foley.
If the calculations and opinions of either of these two experts had been accepted by the Commission and a condition imposed reflecting the numbers they suggested for the reasons that they gave, then in my opinion such a condition would have been acceptable. Each of the experts had calculated what they considered to be, on the various assumptions that they had made, maximum parking requirements for the premises at its busiest time. In their opinion there were sufficient car parking spaces to accommodate that requirement. They suggested that, in case there might have been some under-estimate on the capacity, a condition could be imposed designed to ensure that the capacity of the car-park, although considered to be adequate, would not be exceeded. They then made calculations as to what that appropriate number should be, albeit that the numbers they suggested differed, again based on slightly different assumptions. However, a condition reflecting either of those opinions would not be a condition which changed the nature of the development. In my opinion it would be an appropriate incidental safeguard to ensure that, if there had been some slight miscalculation, parking would not overflow into other areas or adjacent streets. A condition imposed for that reason would be an acceptable safeguard, consistent with but not altering the nature of the proposal.
However, the Commission appears not to have accepted the figures and opinions of either Mr Siow or Mr Foley. There was an extensive report from Mr Murray Young, retained by the respondents. Based on his analysis he considered that there would be a demand for 422 spaces for cars on Saturday nights, substantially higher than the 295 spaces available. It is not clear whether the Commission accepted that opinion. It may have.
The Commission itself had retained a Mr Symons, a traffic consultant from Melbourne. Mr Symons was the only one who calculated car parking requirements based on his estimate of the number of people that could be accommodated in those areas most likely to be used on a Saturday night. He calculated that the patronage could be up to 810 persons. I will have more to say about that estimate in due course. Based on his experience he estimated that there would be an overall parking demand of one parking space per 2.5 persons, thus requiring 324 spaces. The car parking proposed was therefore inadequate. He considered that the parking deficiency would be exacerbated on any nights when the Council held functions in the Civic Centre, and he noted that there had been several such functions each year with 200 - 300 people attending. He agreed that a method of controlling the parking demand would be to place an upper limit on the number of persons on the site at any one time. Based on what he then understood to be the 290 parking spaces available, he recommended a limit of 725 persons. His summary conclusion adequately represents the views that he held:
“In summary, my opinion is that the proposed Tea Tree Gully entertainment complex is not acceptable in its current form, principally because of an under-provision of car parking. The proposal should either be rejected, or accepted subject to modifications which significantly reduce the intensity of its potential use.”
The condition imposed by the Commission was a limit of 740 patrons at night. Allowing for the five extra car parking spaces which later became available, and Mr Foley’s estimate of 3 persons per space, it is relatively easy to deduce that the Commission must have accepted its own consultant’s advice, in deciding to impose the limit of 740.
The Commission therefore had the advice of Mr Young that the car parking was plainly inadequate. Although not as pessimistic as Mr Young, Mr Symons was also of the same view. In their view the proposal should have been rejected. It was Mr Symons’ alternative view that the ceiling he suggested should be imposed, not by way of ensuring that the proposal should be faithfully carried out, but by limiting the nature of the proposal because without that limitation it did not comply with proper planning principles.
When they came to do their calculations of the overall numbers, represented by the available car parks, Mr Siow had estimated 820 and Mr Foley 870. Even if the Commission had agreed with either of their calculations (and those of Mr Siow had been supported by the Commission’s staff), the Commission still imposed a lower limit of patrons than was contemplated by the proposal. Either the Commission appears to have been of the view that the complex was likely to attract a greater number of people than the proposed parking spaces would accommodate, or it considered that for reasons associated with parking it had to restrict the numbers below the likely capacity of the complex.
The figure of 380 for day time use appears to have been that recommended by the Commission’s staff by an adaptation of Mr Siow’s figures, namely by taking the number of available spaces during the day and multiplying by 2.8. In other words, whatever the capacity of the complex might have been and regardless of the numbers which might be expected, they were to be limited by reference to the number of available car parks. In other words, it was the same process but by reference to different figures that had been used in respect of the evening limitation.
In my opinion such a condition can be seen to have been imposed for the purpose of limiting the nature of the use of the premises to something significantly less than was contemplated by the application. It was a misuse of the condition for that purpose, and indicates an error of law on the part of the Commission.
Although it is of no immediate concern to this Court, it is difficult to understand, without some further explanation (which does not appear in the material before us) how the figures on which Mr Symons proceeded can be reconciled with the Liquor Licensing Commission figures.
Mr Symons based his estimate of 810 on the following individual maximum capacities, likely to be reached on Friday and Saturday nights:

Nightclub

450

Cocktail Bar

60

Pool Hall

100

Ground Floor bars and gaming area

200

Total

810

It is not apparent what the source of those estimates was. However, the preliminary maximum capacities for the same areas as estimated by the Liquor Licensing Commission were:

Nightclub

365

Cocktail Bar

57

Pool Hall

150

Ground Floor bars and gaming area

330

Total

902

Thus, the figures overall and in individual areas were very different. The differences were unexplained, although it was open to the Commission to accept either. Both were said to be maximum capacity figures. Whether they also represented likely actual patronage at the times in question was, of course, a matter for the Commission to resolve. It merely shows that there was a wealth of conflicting information before the Commission on matters relevant to car parking, and a need for the Commission to analyse carefully the material before it and to decide on proper grounds what it accepted and what it rejected.

Seriously at variance

Section 35(2) of the 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.”
Subsection (1) is not relevant for present purposes.
This Court has determined in The Grand Hotel (SA) Pty Ltd v The Development Assessment Commission [1999] SASC 414 that whether a development is or is not seriously at variance with the development plan is a question of fact dependent upon the formation of an opinion by the planning authority. The assessment by the planning authority will be conclusive unless the assessment is made without having regard to a relevant matter, or by taking into account an irrelevant matter, or unless it is made arbitrarily or unless the decision reached is one that no reasonable authority could properly reach. It is not necessary to traverse the reasons already given in The Grand Hotel Case.

The trial Judge in this case held that the proposal was seriously at variance with the Development Plan in that it failed to provide adequate car parking. He held that the development consent should be set aside on that ground also. In doing so, he erred, as the power of the Court to invalidate the consent does not turn upon the Court’s own assessment, at least directly, of whether the development is seriously at variance with the Development Plan.
It remains to consider, however, whether there were grounds on which the determination of the Commission could be set aside relating to the Commission’s obligation under s 35(2).
The decision on this aspect is once again linked to the decision of the Commission to allow the amendment of the application. The only application properly before the Commission was an application for provisional development plan consent for an office and entertainment complex. If the Commission considered the question whether the development was seriously at variance with the relevant Development Plan at all, it only considered that part of the development containing the entertainment complex. It failed to consider the totality of the proposal against the relevant Development Plan. Had it done so, it would have to have addressed the question whether the proposal was a non-complying development, and such a conclusion would largely have dictated the conclusion to be reached on s 35(2). The Commission did not do that, and it therefore failed to take a relevant matter into account. Its decision must be quashed and the appeal dismissed on this ground also.
Even if the Commission was justified in treating the development as an entertainment complex only, two questions remain: Did it address at all the question whether the development was seriously at variance with the Development Plan, and were there any errors in its approach to that question which might justify interference by this Court? Once again, it is not necessary to consider this aspect, but as the Commission may have to determine another similar application it is appropriate that some observations be made on the question.
I turn first to the question whether the Commission addressed the question at all. At all material times the Commission had before it a comprehensive 13 page closely typed report on the proposal. That included an analysis of all the written representations made prior to the first meeting of the Commission, together with an assessment of the proposal against various requirements of the Development Plan. The report was prepared by the Development Assessment Branch of the Commission. Among other things it referred to all the relevant objectives and principles of the Development Plan which had a bearing on the development. In respect of some of the principles it reported that the proposal did not comply.
Having therefore had its attention directed to the proposal possibly being at some variance with the Development Plan, it was incumbent upon the Commission to consider whether it agreed with that view. If it did, it was then duty bound to consider whether the proposal was substantially at variance with the plan.
There is no record in the minutes of the relevant Commission meetings to suggest that the Commission gave explicit attention to the question whether the proposal was at variance with the Tea Tree Gully Development Plan, whether seriously or otherwise. At the meeting at which it resolved to grant consent, the following is recorded in the minutes:
“The Commission considered that the proposed land use was appropriate for this location, however expressed concern at the size of the development in relation to the number of car parking spaces to be provided.”
Where a development proposal contains some elements which might be said to be at variance with some objectives or principles of the relevant Development Plan, it is desirable that the planning authority specifically address its mind to the question whether it is seriously at variance and to record its views on that question. In this case there was no express reference to the matters required to be considered under s 35(2). However, it does not follow that the matter was not considered.
I have already mentioned that the report before the Council expressed the opinion that in some respects the proposal varied from the policies expressed in some of the principles of the Development Plan. Each of the relevant objectives and principles contained in the plan was identified in the report. In relation to each objective or policy or appropriate group of objectives or policies, an opinion was expressed as to whether the proposal was consistent with that objective or policy or group. At the end of the report, the author advised that an assessment of the following issues was considered necessary:

Appropriateness of land use on the site
Intensity of the proposed development
Access - external and internal
Car parking
Design
Interface with adjoining development
Noise attenuation
Hours of operation
Easements

There was also a handwritten endorsement on the report addressed to members of the Commission which read:
“This is a proposal which is conceptually suited to the Regional Centre, but in its current form, may border on over development of the site. It has very tight traffic circulation and possibly under provision of parking for peak periods.
It proposes a high concentration of patrons (up to 870) until 4.00am close to houses.
An assessment of intensity of use and interface issues should be undertaken.”
That report and its recommendations came before the Commission at its first meeting to consider the proposal. The proposal was further considered at two subsequent meetings, at the last of which it was approved.
In the notification of decision given to the appellant there appeared under the heading “Reasons for Decision” the following:
“....... The proposed development, principally the use, scale and overall layout, is generally consistent with the policies for the Regional Centre Zone and other provisions of the Development Plan.”
Given the comprehensive nature of the report before the Commission, the fact that in giving consent the Commission imposed a number of conditions particularly having some bearing on car parking and traffic movement, which was a matter of principal concern, and the nature of the reasons for decision as published, I would infer that whatever departures there were from the objectives and principles contained in the Development Plan, the Commission did not consider that the development on the whole and as finally approved (with the conditions) was seriously at variance with the Development Plan. As was pointed out by the Court in The Grand Hotel Case such an assessment involves consideration of a number of facts about the proposal and the locality and consideration of a number of provisions of the Development Plan. It involves the application of those provisions to the facts by the exercise of a planning judgment. There is nothing to suggest that that process was not faithfully carried out in this case in respect of the proposal with conditions as finally approved. The inference must be that if the Commission considered that the development as finally approved was seriously at variance with the Development Plan it would not have granted consent. In my opinion the Commission did address the question and decided that the development with the conditions it imposed was not seriously at variance with the Development Plan.
However, that is not the end of the matter. As I have already pointed out the Commission had before it a number of conflicting reports on the adequacy of car parking and how the question might be addressed. I have already concluded that the Commission erred in law in its approach to the question of car parking, and that by imposing Condition 2 it altered the nature of the proposal. The condition made the proposal something different from what was proposed, and effectively altered it to make it suitable and appropriate to the principles of the Development Plan. The implication from the material to which I have referred is that it considered the proposal as so altered not to be seriously at variance with the Development Plan. However, there is nothing to indicate that the Commission ever directed its mind to whether the appellant’s original proposal, that is, the proposal without that significant alteration, was seriously at variance with the plan. That is what it was required to do. That is what it appears not to have done. For that reason the Commission process miscarried.
The error of law made by the Commission in imposing the condition not only vitiated its decision to approve the proposal but is itself strong evidence of the failure by the Commission to assess whether the original proposal was seriously at variance with the plan. In my opinion it has been shown that it never formed the necessary opinion about that proposal.
It was argued before the trial Judge that there were two other errors on the part of the Commission in making its assessment of the proposal’s compliance with the Development Plan and that these were errors which would justify this Court quashing the decision on judicial review. The first was in relation to the Commission’s assessment of the effect of the proposed development on the zoning of the area, and whether the development was better suited to another part of the area covered by the Civil Park and Environs Policy Area. The trial Judge dismissed an argument that this rendered the development seriously at variance with the plan. Whilst we have held that that question is not a question for this Court, it was not suggested that any of the available grounds of judicial review of the Commission’s decision on this topic were open.
The second ground advanced before the trial Judge was that the area provided for car parking was wholly inadequate. His Honour found that the Commission concluded that the car parking was inadequate unless a limit was placed on the numbers attending the hotel. For that reason he concluded that the proposal was seriously at variance with the Development Plan. Again, that is not a matter which was properly the concern of this Court. The Court was only concerned with whether the Commission had made the assessment and whether that process had miscarried in any way. This Court’s own view that car parking for a development is inadequate will seldom, if ever, give rise to a conclusion that the decision on “seriously at variance” by a planning authority is invalid. It is only by applying the approach determined in The Grand Hotel Case that that question can be determined. On that approach there was no basis for judicial review on this ground.

Conclusion

Although the trial Judge granted relief to the respondents on some grounds on which it was inappropriate to do so, there are other grounds on which relief was appropriately given. Some of those grounds could be satisfied by the Commission being directed to reconsider the application according to law. However, the principal ground on which the relief must be granted relates to the impermissible variation of the application, which cannot be cured by remitting the matter to the Commission. In the result, and subject to any order for costs, the only appropriate order for this Court to make is that the appeal be dismissed.
During the course of the hearing we were told that a further application, not including the office component, has been lodged with the Commission for processing pending the outcome of this appeal. As I have already observed, that would normally be dealt with by the Council, but we were also informed that in relation to that application the Minister had made a declaration under s 34(1)(b)(iv) of the Act which thereby constitutes the Commission as being the appropriate authority to deal with the application. If the application proceeds in that or in some further modified form, it will be for the Commission to deal with it in accordance with the requirements of the Act.

WICKS J. I agree that the appeal should be dismissed for the reasons given by Bleby J.

Nightclub	450
Cocktail Bar	60
Pool Hall	100
Ground Floor bars and gaming area	200
Total	810

[1999] SASC 386

24 September 1999