Moyes & Anor v J & L Developments & Anor - [2004] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
MOYES & ANOR v J & L DEVELOPMENTS & ANOR
Judgment of The Honourable Justice Debelle
7 October 2004
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - REFUSAL AND REASONS FOR REFUSAL
Development Application - two-storey dwelling - whether proposal complied with Development Plan - relevant criteria - errors of principle by Commissioner in the Environment, Resources and Development Court - appeal allowed.

ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - PROCEDURAL FAIRNESS - RIGHT OF PARTY AFFECTED TO BE HEARD
Procedural fairness - amendments to proposed development propounded by court hearing appeal - whether breach of rules of procedural fairness - relevant criteria - perception of prejudgment - no opportunity to be heard - held to be breach of rules of procedural fairness.
Development Act 1993 s 35(2); Environment, Resources and Development Court Act 1993 s 21, referred to.
City of Marion v Becker (1973) 6 SASR 13; City of Mitcham v Freckmann (1999) 74 SASR 56; SA Housing Trust v Development Assessment Commission (1994) 63 SASR 35; City of Charles Sturt v Hatch [1999] SASC 523; R v Milk Board; ex parte Tomkins [1944] VLR 187; Babalis v City of Adelaide (1985) 38 SASR 450; Johnson v Johnson (2000) 201 CLR 488; R v Watson; ex parte Armstrong (1976) 136 CLR 248; R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546; Kioa v West (1985) 159 CLR 550, applied.
Opal Inn Pty Ltd v District Council of Coober Pedy (2001) SASC 190, distinguished.
Hennig & Co Pty Ltd v South Australian Planning Commission (PAT No 405 of 1992); Twist v Randwick Municipal Council (1976) 136 CLR 106; NCSC v News Corporation Ltd (1984) 156 CLR 296; Re JRL; Ex Parte CJL (1986) 161 CLR 342, considered.

MOYES & ANOR v J & L DEVELOPMENTS & ANOR
[2004] SASC 319
Land and Valuation Division

DEBELLE J This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court.
The respondent J & L Developments Pty Ltd (“J & L Developments”) applied to the Adelaide Hills Council (“the Council”) for provisional development plan consent to construct a two-storey dwelling and associated development at Birch Road, Stirling. Two sets of neighbours who occupy adjoining land affected by the proposed development, Mr and Mrs Moyes and Mr and Mrs Brooks, lodged representations with the Council objecting to the proposed development. The Council refused to grant development consent. J & L Developments appealed to the Environment, Resources and Development Court (“the Environment Court”) against the Council’s decision.
The appeal in the Environment Court was heard by a Commissioner of that court who, on 5 April 2004, allowed the appeal and granted provisional development plan consent subject to 17 conditions. From that decision Mr and Mrs Moyes and Mr and Mrs Brooks have appealed to this Court. On the hearing of the appeal, the Council adopted their arguments as well as advancing its own. Thus, the protagonists on the appeal in this Court were on the one hand the Moyes, the Brooks and the Council seeking to reverse the decision of the Environment Court and to restore the Council’s decision and, on the other, J & L Developments seeking to uphold the Commissioner’s decision.
The Subject Land
The following description of the subject land and the proposed development is based on the findings made by the Commissioner which were not in dispute.
The subject land is on the northern side of Birch Road, Stirling and rises relatively steeply from that road. It is at 33 Birch Road. It has a narrow frontage to Birch Road and access to the allotment is gained by a right of way over the driveway of the adjoining allotment at 31 Birch Road. Mr and Mrs Moyes reside on adjoining land to the south at 35 Birch Road. Mr and Mrs Brooks reside on another adjoining allotment.
The land has a site area of 3,116 square metres. The land is elongated and irregular in shape. Originally the natural surface of the land fell from north to south and from west to east. The original fall was relatively steep and, generally speaking, that is still the position. However, at some time in about the 1920’s, part of the land was cut and filled to provide a level area in the central part of the site. In this appeal that levelled area was called a “platform”. It appears that the platform was once used as a tennis court for what is the allotment immediately north. At that time the subject land and the allotment immediately to the north formed one allotment. The platform has an area of about 650 square metres. The subject land was created in 1993 following a decision of the Planning Appeal Tribunal to grant consent to a land division application: Hennig & Co Pty Limited v South Australian Planning Commission (PAT No 405 of 1992, delivered 1 March 1993).
The land to the north of the platform has a relatively steep upward slope. The land to the west of the platform has been excavated into the side of the hill, creating an excavated wall above which is the continuation of the driveway to 31 Birch Road. To the east of the platform the land falls very steeply from the platform for some 3 to 5 metres with a slope of about 1 : 1, tapering back to ground level at the northern side. This steep slope is the result of constructing the platform. On the southern side the land again falls very steeply from the platform towards the adjoining allotment owned by Mr and Mrs Moyes on the southern side at 35 Birch Road. The land in the south-west corner of the allotment is triangular in shape. It has a relatively steep slope. It is also relatively narrow and does not allow for a suitable building site. There are some trees on the land but a number of trees have already been removed. The trees removed include a number on the southern side of the allotment.
The Proposed Development
J & L Developments applied to construct a large substantial dwelling on the platform. The platform is to be increased in size to accommodate the house and associated works. The area of the platform will be increased by adding filling. The filling will be supported by large retaining walls. In addition, there will be further excavation to the west. Construction of the driveway will also require further filling.
The proposed dwelling is large. It comprises five bedrooms, a library, a study, an activity room, a home theatre, a large living room, a kitchen, two bathrooms and double garage. A large part of the building is of two-storey construction, the upper floor containing four bedrooms, the study, the activity room and a bathroom. At ground level the floor area is 297 square metres with an additional 162 square metres on the first floor, making a total area of some 460 square metres. The walls of the two-storey section will be about 6 metres high and the height at the ridgeline will be some 9.5 metres. The two-storey section is set inward from the ground level section on the northern, eastern and southern elevations.
The proposed development requires both excavation and filling of land as well as construction of substantial retaining walls on the southern and eastern sides of the platform to support the filling. The existing platform area will be extended to the south by some three to six metres so that it will be set back at the top of the retaining wall by some 2.5 metres from the southern boundary. The platform will also extend to the east to be within 1.4 metres of the eastern boundary. This extended area will comprise some 120 square metres and will be supported by the retaining walls on the southern and eastern sides. The retaining walls will be constructed of concrete sleepers and steel columns and will be constructed so that there will be three steps on the southern and eastern sides, each being 1.5 metres high and with a 60 centimetre wide benched garden bed at each level. On the eastern side, the retaining wall tapers as the wall heads north until it reaches a 3.8 metre high single retaining wall, which in turn then tapers to ground level further to the north.
On the western and north-western sides of the land excavation is proposed to cut into the bank to a point some 700 millimetres from the boundary with 31 Birch Road. It will result in angled embankments with varying height of some 3 to 6 metres.
There will be other excavation to the north of the dwelling to provide a flat area of land to be paved or planted. In addition, the northern part of the site is to be excavated to provide a series of banks three metres high and some two to three metres wide. These excavated areas will require additional retaining walls along both the eastern and western boundaries. The resulting levelled areas will be landscaped.
In short, apart from the triangular shaped parcel at the south-west of the subject land, little of the natural surface of the land will remain after the completion of the excavation and filling works. Exhibit C in these proceedings is a model graphically depicting the changes.
An examination of the plans of the proposal, Exhibit C and the reasons of the Commissioner suggest that, although this dwelling and the retaining walls will not tower over the dwelling occupied by the Moyes at 35 Birch Road, they will nevertheless be imposing structures. My view of the land at the request of the parties confirmed that that was so.
Some idea of the imposing nature of the retaining wall so far as it affects the adjoining allotment to the south can be gleaned from the fact that the retaining wall as proposed will be higher than the ridgeline of the roof at the dwelling at 35 Birch Road. In addition, the retaining wall will extend along the whole of the side of that dwelling. The wall is on the actual boundary between the land owned by J & L Developments and the land owned by Mr and Mrs Moyes. It is but a few metres from the Moyes’ dwelling. It is a very substantial structure. It is at least 25 metres in length along the boundary and is some 4.5 metres high. The two-storey dwelling accentuates the imposing nature of the wall.
Locality
The Commissioner found that the locality was the area likely to be affected by the proposed dwelling. There was no dispute as to the extent of the locality. The houses occupied by Mr and Mrs Moyes and Mr and Mrs Brooks were within that locality. There is a school immediately to the north.
The Commissioner summarised the locality including its characteristics and visual amenity in these terms:
·“very low density residential land use (except for the undeveloped rear of the school property – undergoing a stormwater management project); on sloping land with allotment sizes ranging from 2,900 to over 9,600 square metre;
·built form of above average to large size for dwellings;
·mixed architectural style, appearance and building condition;
·of part one and two-storeys or part split level form, generally well obscured from the road view by vegetation (with 37 Birch Road, the exception);
·variable siting but with generous setbacks of buildings from road frontages (37 Birch Road at some 8 to 10 metres, again the exception), and mostly from side and rear boundaries (with 35 Birch Road, at 5 to 7 metres from the northern rear boundary, the notable exception);
·use of excavation and filling to create driveway, building, garden and recreation platforms or benched areas, given the slope of some land, of moderate height and varied materials and significance, though now mellowed, obscured by vegetation growth and weathering;
·extensive areas and canopies of large trees (indigenous and exotic) and exotic gardens and landscaping features, to the extent that these vegetated features are the primary determinant of the attractive, semi-rural, landscaped character and of visual amenity; and high visual amenity generally, married occasionally only by specific built forms or excavation and filling.”
The Development Plan
The land is subject to the Council’s Development Plan. It forms part of the Country Living Zone. Much of the area known as Stirling is within the Country Living Zone. The Council’s Development Plan contains Objectives and Principles of Development Control which apply throughout the Council area and then lists other Objectives and Principles of Development Control for each zone including the Country Living Zone. For convenience, I will refer to all Objectives and Principles of Development Control as “the Objectives and Principles”. The Objectives and Principles which apply throughout the Council area regulate residential development as well as other kinds of development. The Commissioner noted the relevant provisions in his reasons. It is not necessary to refer to them all. In a moment, I list those which are more relevant to the issues in this appeal.
The Country Living Zone is a zone which may be considered to be one of the residential zones in the Council area. As the Plan states, the area of the zone is “intended for low density residential development and associated ancillary development such as local recreation areas, local shops, primary schools and community facilities.”
I turn to note the Objectives and Principles which specifically apply to residential development throughout the Council area and so apply in the Country Living Zone. I will then note the Objectives and Principles in the Country Living Zone which apply to residential development.
The Objectives and Principles which apply throughout the Council area relate, among other things, to the preservation of existing landform, to the minimising of excavation and filling of land, to ensuring that buildings are unobtrusively sited, and to the siting and design of buildings and their effects upon neighbours as well as upon the character and amenity of the locality.
Provisions intended to preserve landform and to minimise excavation and filling begin with Objective 8 which provides:
“8     The excavation and/or filling of land should:
(a)     be kept to a minimum and be limited to no greater than 1.5 metres to preserve the natural form of the land and the native vegetation;
(b)    only be undertaken to reduce the visual impact of buildings, including structures, or to construct water storage facilities for use on the allotment;
(c)    only be undertaken if the resultant slope can be stabilised to prevent erosion; and
(d)    result in stable scree slopes which are covered with top soil and landscaped to preserve and enhance the natural character or assist in the re-establishment of the natural character.”
The intention to keep the excavation and filling to a minimum and to reduce the visual impact of buildings is emphasised in Principles 82, 88, 191, 226 and 227, the relevant parts of which are in these terms:
“82    Residential development should take account of the climatic and topographic conditions of the site.
…..
88Residential buildings should be primarily of single storey design, and split level design on sloping sites and in particular:
…..
(f)     be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building.
…..
191Development should be undertaken with the minimum effect on natural features, land adjoining water or scenic routes or scenically attractive areas.
…..
226Development should take place in a manner which will minimise alteration to the existing landform.
227Excavation and earthworks should take place in a manner that is not extensively visible from surrounding localities.”
It is abundantly clear that the intention is to keep excavation and landfill to a minimum in order to preserve the natural landform. The continued repetition of those goals serves to emphasise their importance.
Principle 88 deals with both design and landform in expressing the objective that residential buildings should primarily be of single-storey design and of split-level design on sloping sites and be sited on an excavated rather than a filled site to reduce the vertical profile of the building. Implicit in these provisions is the objective that residential buildings should be unobtrusively sited, an objective expressly referred to in Objective 92 and Principle 230, which apply generally to all buildings.
“Objective 92: Buildings or structures unobtrusively sited and of a character and design which blends naturally with the landscape.”
…..
“Principle 230 Buildings should be sited unobtrusively and be of a character and design which will blend naturally with the landscape.”
These provisions relating to the protection of the natural landform and topography include provisions bearing upon design. Plainly, it is not possible to place everything into discrete compartments. Some provisions in the Development Plan relate to a number of issues. The Plan contains other provisions which expressly deal with design related issues.
An important aspect of residential development is summarised in Objective 33 which states that one of the objectives of residential development is “safe, pleasant, convenient and efficient residential zones”. The Development Plan immediately goes on to describe how that objective can be achieved in these terms:
“Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight. Sunlight access, for example, not only benefits amenity, but also is necessary to enable effective use of solar energy collection systems. These systems are affected by building and allotment orientation and by shadowing from buildings and trees, and accordingly, it is desirable to protect existing collectors and recognise potential for use on sites adjacent to a development site. Residential zones should provide primarily for residential uses. New non-residential activities should generally not be located in residential zones, and extensions of existing non-residential activities should only occur when there is no adverse effect on nearby residential activities.”
In short, the Plan is stating the criteria to which regard should be had by those designing proposed residential developments. Of particular relevance in this case is the criterion that residential developments should be well designed in order to enhance the residential character and amenity of the area. The Plan then lists the characteristics of well designed residential development stating that it is a development which takes into account factors such as
·building bulk and materials;
·privacy; and
·access to sunlight
All of those factors have particular relevance to the issues in this appeal.
The Principles which follow both reiterate and spell out in more detail particular aspects of Objective 33. They include:
“77    Developments in a residential zone should not impair the character or amenity of the locality as a place in which to live.
78Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:
(a)for adjacent properties;
(b)for each dwelling and private open space.
79Landscaping of development in residential zones or areas should:
(a)enhance residential amenity;
(b)screen storage, service and parking areas;
(c)provide protection from sun and wind; and
(d)not unreasonably affect adjacent land by shadow.
…..
87Development in a residential zone or area should maintain the attractiveness of the area as a place in which to live, with buildings sited and designed in such a way as not to cause:
(a)     overshadowing or overlooking of windows or outdoor living area of adjacent dwellings;
(b)    cutting off light or views from existing or proposed development;
(c)    adverse conditions in an area by significantly altering microclimatic conditions, or creating emissions of odour and emissions of noise;
(d)    increasing traffic volumes;
(e)    overcrowding of community facilities; or
(f)     adverse alteration of the character of the area.
…..
98Buildings should be set-back from side and rear boundaries of an allotment and the set-back distance related to the height of the building, length of its walls and size and location of its openings, to ensure adequate day-light and privacy of adjacent allotments.”
The goal of protecting privacy in Principle 98 reinforces the terms of Objective 33 . It also reinforces an earlier principle, Principle 15, which states:
“15Development should not detrimentally affect the character or amenity of its locality or cause nuisance to the community
…..
(d)     by the loss of privacy”.
Thus, the Plan reiterates the objective of protecting privacy and so emphasises its importance.

The provisions of the Development Plan for the Country Living Zone state that the Objective and Principles for that zone are “additional to those expressed for the whole of the Council area”. Thus, the provisions already mentioned expressly apply to this zone. The Plan lists other Objectives and Principles for the zone. For present purposes, Objectives 1 and 2 are relevant. They provide:
“Objective 1:     A zone accommodating single dwellings at low densities.
Objective 2:     Low-density living areas with a rural character.”
The relevant Principles include the following:
“2     Development should not prejudice the residential amenity of the locality by its bulk, appearance and scale, by display of advertising signs, or by traffic and car parking congestion, noise or other emissions from, or related to, development.
…..
27The scale of the development, and its appearance and character should be in keeping with that established in the locality.
28Adequate privacy and daylight for neighbouring allotments, and the amenity and landscape quality of the locality should be maintained.
These provisions serve to reinforce the Objectives and Principles listed above which apply throughout the Council area.
When regard is had to the above extracts from the Plan, it is manifestly apparent that the Development Plan expresses a clear intent concerning the construction, design and siting of residential buildings. The intent is that residential buildings
(a) should be sited unobtrusively;
(b)should be of single-storey design and, if on a sloping site, of split-level design consistent with the objective of unobtrusive structures;
(c)should not interfere with natural landform but, if interference with landform is necessary, the preferred objective is for buildings to be constructed on an excavated site as distinct from a filled site;
(d)excavation and filling are to be avoided but, if either is necessary, should be kept to a minimum;
(e) should not impair either the privacy or access to sunlight of neighbours;
(f)should not impair either the residential amenity of neighbours or of the locality;
(g) should not unreasonably cause overshadowing of adjoining land.
On occasions, the intended goal is reinforced by repetition, for example, in the case of excavation and filling, privacy and access to sunlight, and unobtrusive building more than one objective deals with each. The Objectives and Principles relating to excavation and filling, preservation of landform and unobtrusive building plainly have a particular application in the Adelaide Hills.
This recapitulation of the Objectives and Principles of Development Control indicates that in certain areas careful attention will have to be given to the design and siting of a dwelling. In other words, the provisions of the Development Plan, when read as a whole, provide a comprehensive list of criteria to be applied to the design and location of a dwelling. As will be apparent, those criteria have a particular application to the proposed building as well as to the particular characteristics of this site.
Before examining the application of these criteria to the proposed development, I note the decisions of the Council and of the Commissioner.
The Council’s Decision
The Council’s reasons for refusing development consent were
“1The development will prejudice the residential amenity of the locality by its bulk, appearance and scale resulting from the siting of the dwelling, the filling of the land and the location, extent and height of retaining walls contrary to Country Living Zone Principle 2.
2The scale of the development and its appearance is not in keeping with that established in the locality which is characterised by low retaining walls and terraced landscaped embankments contrary to Country Living Zone Principle 27.
3The proposed retaining walls along the southern and eastern boundaries of the subject land will, because of their scale, location and height, adversely affect the character and amenity of the locality contrary to Council Wide Principles 20(c), 77 and 87.
4The filling of the land to a maximum height of 5.1 metres at the south eastern corner does not keep filling to a minimum, exceeds 1.5 metres, fails to preserve the natural form of the land and is being undertaken for reasons other than to reduce the visual impact of buildings contrary to Council Wide Principles 8 and 10.
5The proposed development fails to adequately take account of the topographic conditions of the site contrary to Council Wide Principle 82.
6The proposed location of the dwelling will unreasonably impair privacy for adjacent properties contrary to Council Wide Principle 78.
7The development will not maintain the attractiveness of the area as a place in which to live as the siting of the dwelling will cause inappropriate overshadowing of adjacent dwellings and the dwelling is sited on a filled site contrary to Council Wide Principles 87 and 88.
8The open space provided around the dwelling on its southern and eastern sides is insufficient and inappropriate having regard to the locality contrary to Council Wide Principles 89 and 92.”
In other words, the Council believed that the size and bulk of the proposed dwelling, the large retaining walls, its location, the extent of filling and the interference with landform were contrary to the Objectives and Principles in the Development Plan and adversely affected the amenity of neighbours and the character and amenity of the locality
The Commissioner’s Decision
After hearing the evidence and examining the proposed development, the Commissioner published a memorandum on 3 February 2004 in which he concluded that the proposal was sufficiently at variance with the Development Plan to warrant refusal. He expressed his reasons in these terms:
“ As currently presented to the Court, the proposal is not acceptable and is clearly sufficiently at variance with the Development Plan as a whole, to warrant refusal.
The design of the development is not sufficiently sensitive to the relationships with buildings (dwellings) and spaces on adjoining land to the south and east and would cause unacceptable impacts. It is inconsistent with and will not enhance the character and amenity of the locality.”
Those conclusions provided proper grounds on which to dismiss the appeal by J & L Developments: see s 35(2) of the Development Act 1993 which provides that a development assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
However, the Commissioner did not stop there. He went on in the same memorandum to consider whether the proposal might be modified without producing a proposal fundamentally different in character from the plan the subject of the appeal: City of Marion v Becker (1973) 6 SASR 13 at 24. The Commissioner proposed 13 amendments which, he said, would be necessary to enable the proposed development to comply sufficiently with the requirements of the Development Plan. He invited J & L Developments to amend its plan in line with his suggestions, stating that the proposed dwelling was acceptable subject to those amendments being made. The Commissioner added that, if the invitation was declined or not taken up to the extent that he considered necessary, the court would dismiss the appeal and uphold the Council’s refusal.
Not surprisingly, J & L Developments made the amendments. After it had done so, the Commissioner allowed the appeal and granted provisional development plan consent subject to 17 conditions.
The Issues on the Appeal
The issues on the appeal in this Court can be grouped under two broad headings. The first was that, having found that the proposal was not acceptable, the Commissioner should have dismissed the appeal instead of suggesting amendments to the proposed development and then allowing the appeal. The second was that the Commissioner failed to recognise that both the original and the amended proposal constituted a substantial departure from the Objectives and Principles of the Development Plan and that the Commissioner failed properly to apply the relevant provisions of the Development Plan and, in particular, those relating to landform.
It is convenient to deal first with the second of the above contentions.
Commissioner Misunderstands Appellant’s Case
It is quite apparent that the Commissioner has proceeded on a misunderstanding of the case presented on the appeal by the Moyes and the Brooks as well as by the Council. In par 32 of his reasons the Commissioner listed several matters which he described as being satisfactory and “not in issue”. He said:
“ In this matter I consider that there are several aspects that are satisfactory and not at issue and they include the proposed:
·residential use and dwelling type (given the zoning);
·height and part two-storey nature of the dwelling, acceptable in-principle in the locality context but subject to the issue of siting on the subject allotment;
·floor size and site coverage (in the locality context);
·architectural style, materials, colours and finishes of the dwelling (in the locality context);
·access and parking for two vehicles – two undercover and two ‘stacked’ spaces behind, with a reversing indent area;
·substantial, if not full, use of the existing excavated and filled platform for siting the dwelling; and
·adequacy of outdoor open space for occupants of the proposed dwelling.”
The underlining has been added to indicate the matters in dispute on the appeal. There was in fact a real dispute whether this two-storey dwelling should be located on this site in the manner proposed and whether it was appropriate to use the whole of the platform either in its original form or as extended.
The central feature of the case in the Environment Court for the Moyes and the Brooks as well as for the Council was that, while it was appropriate to erect a dwelling on the site, this two-storey building was too large and too bulky for the site, particularly when regard is had to the particular difficulties of the site. They contended that the dwelling was obtrusive and visually dominant, that the extra excavation and filling required was more than that permitted by the Development Plan, that the proposed dwelling caused overshadowing, and as a two-storey building offended the provisions of the Development Plan. In addition, the Moyes and the Brooks contended that the particular difficulties of the site required a sensitively and carefully designed dwelling, asserting that there was scope for a number of designs, including split-level. The Commissioner has, therefore, clearly erred in stating that the following were not in issue:
·residential use and dwelling type (only the residential use was not an issue);
·height and two storey nature of the dwelling;
·floor size and site coverage;
·substantial, if not full use of the platform as extended for the dwelling.
All of those matters were very much in dispute. They constituted fundamental aspects of the case for the Moyes, the Brooks and the Council.
The Commissioner’s misunderstanding of the case for the Council, the Moyes and the Brooks has clearly led him into error. That is an important consideration and demonstrates a fundamental error on the part of the Commissioner. However, that is not in itself a sufficient ground to allow the appeal. It is also necessary to consider whether, in concluding that the above aspects were “satisfactory”, the Commissioner has properly addressed the issues relating to the preservation of landform, to the size and bulk of building, to the siting and design of the building, and to the preservation of residential character and amenity which stem from the provisions of the Development Plan.
Even with this misunderstanding of the case for the Council, the Moyes and the Brooks, the Commissioner concluded that, as proposed, the intended development was substantially at variance with the Development Plan. He then proposed amendments which, he said, would remedy the defects in the proposal. For the reasons which follow, the Commissioner not only misunderstood the case of the Council, the Moyes and the Brooks, but he also fell into error in that he failed to apply the relevant provisions of the Development Plan when determining that a two-storey dwelling of this height and bulk and involving a substantial interference with landform was an appropriate development on this site. That flaw in the Commissioner’s reasoning has influenced him to propose amendments and his ultimate decision to allow the appeal by J & L Developments.
The following reasons demonstrate the errors of principle in the Commissioner’s reasons and his failure to apply the relevant provisions of the Development Plan, not only so far as they affect the Commissioner’s initial conclusion, but also his final decision.
Compliance with the Development Plan?
As the subject land has already been excavated and filled in a manner which exceeded the desired minimum as prescribed by the Development Plan, it is reasonable to begin any assessment of the proposal by allowing for use of that platform. However, it does not necessarily follow either that the platform may be extended by the additional excavation and filling or that the proposed dwelling should occupy the greater part of the platform either in its original form or as extended. In his reasons at par [41] the Commissioner said:
“…the existing platform does not have to be accepted in its entirety, though it is a reasonable and appropriate starting point for the dwelling siting and the setting of various levels.”
The first part of that proposition is correct. If the second part is intended to say no more than that the platform is a mere starting point for consideration of the type of dwelling and where it is to be located, that too is correct. However, if it is intended to say that the whole of the platform can be used for the dwelling, that is to misstate the position. The platform provides a starting point but no more. Attention must then be given to an appropriate design bearing in mind the goals expressed in the Objectives and Principles of the Development Plan and the nature of the land and development on adjoining allotments. It is apparent from the Commissioner’s reasons that he has misstated the position and has concluded that a two-storey dwelling occupying the whole of the platform could be permitted subject to issues of its location. For the reasons which follow this conclusion is fundamentally flawed.
In par 30 of his reasons, the Commissioner listed the matters to which he is required to have regard when considering a development proposal. Broadly speaking, the Commissioner has listed all relevant factors. However, although the Commissioner has identified the relevant provisions of the Development Plan and has identified the intention of the Plan in relation to some of those provisions, he has failed correctly to direct himself in that he has failed to examine the combined effect of the relevant provisions. In other words, he has failed to distil from the relevant provisions of the Development Plan whether they speak for or against the proposal. In City of Mitcham v Freckmann (1999) 74 SASR 56 at 62, this Court described the process to be undertaken by a planning authority in these terms:
“Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan. That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provision in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely that it might merit planning approval.”
When the Court spoke of identifying the provisions of the Development Plan which speak for or against a proposal, it was not proposing that the provisions of the Development Plan simply be used as a kind of checklist. That is clear from the above passage. It is necessary also to identify the goals which the Development Plan seeks to achieve. The identification of the goals or objectives of the Plan is effected by distilling from its relevant provisions the overall intent and purpose and the desired character of the zone. When performing that task, it is necessary to examine not only the provisions which relate to that zone but to examine also the Objectives and Principles which apply throughout the Council area. That is clearly the position in this case where the Development Plan expressly states that the Objectives and Principles of Development Control for this Country Living Zone are additional to those expressed for the whole of the area of the Council. Thus, it is necessary to examine the proposal against the combined effect of the relevant provisions. For the reasons which follow, the Commissioner failed to do so.
The relevant provisions of the Development Plan relating to the above issues have already been mentioned. It is convenient to repeat them
(a) should be sited unobtrusively;
(b)should be of single-storey design and, if on a sloping site, of split-level design consistent with the objective of unobtrusive structures;
(c)should not interfere with natural landform but, if interference with landform is necessary, the preferred objective is for buildings to be constructed on an excavated site as distinct from a filled site;
(d)excavation and filling are to be avoided but, if either is necessary, should be kept to a minimum;
(e) should not impair either the privacy or access to sunlight of neighbours;
(f)should not impair either the residential amenity of neighbours or of the locality;
(g) should not unreasonably cause overshadowing of adjoining land.
Those objectives are spelled out in greater detail earlier in these reasons. They are constraints upon the development of this site.
In referring to the constraints of the Development Plan, I do not intend to elevate the desired objectives to a set of mandatory obligations. They do not have that function: SA Housing Trust v Development Assessment Commission (1994) 63 SASR 35. They are, nevertheless, constraints in the sense that the combined operation of the relevant Objectives and Principles of Development Control in the Development Plan imposes limitations upon the free and unrestricted use of land. If they do not, then the purpose and intent of the Development Plan is defeated. In the case of a dwelling in this Council area the Plan has prescribed a list of criteria relating to the design and siting of dwellings. In this respect it is relevant to note that these criteria were relied upon by the Planning Appeal Tribunal when this allotment was created, the Tribunal describing them as “a relatively strict design list”. Those criteria represent a desired set of standards. They are preferred standards. The intent is that a development proposal should have regard to them. They are the goal to be aimed at: SA Housing Trust v Development Assessment Commission (supra) at 38.

The Commissioner’s reasoning proceeds on the premise that, as residential development is an appropriate use of land in this zone, there is no issue that it is reasonable
·to allow the whole of the platform to be used for that purpose;
·to allow the platform to be extended by excavation and filling for the proposed residential development; and
·to allow a building which is in part two-storeys high.
That premise is flawed for at least two reasons. First, as already noted, all of those facts were in issue on the appeal. Secondly, it offended the provisions in the Development Plan providing:
(a)     that residential buildings should be sited unobtrusively;
(b)    that residential buildings should be of single-storey design and, if on a sloping site, of split-level design consistent with the Objective of unobtrusive structure;
(c)    should not interfere with natural landform;
(d)    that excavation and filling are to be avoided but, if either is necessary, should be kept to a minimum.
It was necessary for the Commissioner to assess the proposal against these criteria. In effect, the Commissioner had to consider whether a dwelling as substantial as that proposed and located as proposed on this site was appropriate on this land. That issue involved other issues stemming from the Development Plan and, in particular, those provisions which are designed to prevent impairment to privacy and access to sunlight of neighbours and those which are designed to preserve the residential character and amenity of the locality. The Commissioner failed to assess the proposal against the above criteria and so, from the outset, his reasoning was flawed.
The proposed dwelling offended all of the objectives of the Development Plan listed above in that
1.     it is of two-storey design, not of single-storey or split-level design;
2.     it is obtrusive;
3.     it interferes extensively with the natural landform;
4.     it impairs privacy and the access to sunlight of neighbours; and
5.     it impairs the residential amenity of neighbours.
Items 1 and 3 above are apparent from the plans for the proposal. Items 2, 4 and 5 are findings which the Commissioner made in his reasons. Thus, at the very outset of his reasons the Commissioner has failed to address the central question whether a large two-storey building of this size and bulk should be permitted on this site. He has also failed to address the criteria in the Development Plan identified above. I set out the reasons for that conclusion in greater detail.
I deal first with his conclusion that the following two items were satisfactory:
·“residential use and dwelling type (given the zoning);
·height and part two-storey nature of the dwelling, acceptable in-principle (sic) in the locality context subject to the issue of siting on the subject allotment.”
A dwelling is clearly, a suitable, if not the most appropriate, use of this parcel of land. However, it is equally clear that two-storey dwellings must be assessed against the intended goals of the Development Plan in relation to dwellings. The intended goals have already been identified. Two which are particularly relevant in this context are that residential buildings should be unobtrusive and of single-storey design or split-level on a sloping site. It is apparent that the proposal offends these objectives. Not only is this not a single-storey dwelling as the Plan seeks but the bulk and size of the two-storey building also offends the goal that buildings should be unobtrusive. In passing, I note that the Commissioner’s description of the dwelling as “part two-storey” is correct, but that description does not convey the fact that a large part of the dwelling is two-storey. The Commissioner has failed to address the question that the Development Plan expresses the intent that buildings should be of single-storey or split-level construction. Instead, he accepts the two-storey dwelling, notwithstanding the provisions of the Development Plan. He simply accepts it, drawing some support from the fact that there are other two-storey dwellings in the locality.
The fact that other two-storey dwellings exist in the locality does not, however, of itself support the Commissioner’s conclusion that, in principle, two-storey dwellings are acceptable on the site. An examination of the Development Plan shows that two-storey dwellings are not the preferred form of dwellings. To the extent that they exist, they have an influence upon the character and amenity of the locality. But each development application must be examined and assessed on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan: City of Mitcham v Freckmann (1999) 74 SASR 56; City of Charles Sturt v Hatch [1999] SASC 523. Where existing development does not conform to the Development Plan, greater care must be exercised when applying the Development Plan. As Bleby J said in City of Charles Sturt v Hatch (supra) at [32]:
“What may become relevant as a precedent is the effect on the character and amenity of a particular locality of a development which is lawful because it has been approved, but which is one which ought not to have been approved under the Development Plan. Once lawfully in place, an undesirable development has an inevitable effect on the character and amenity of the locality in question, such as to open the door to other possible developments based on the character and amenity of the locality as then affected by the particular development in question. However to put the matter in that way is to say no more than that a development which fails to conform with the Objectives and Principles of the Development Plan ought not to be approved. It is merely an added reason for a planning authority to be vigilant in applying the relevant provisions of the Development Plan to the particular development proposal.”
In short, the fact that development which does not conform to the Development Plan exists might be relevant when assessing the character of the amenity of the locality but it does not necessarily lead to the conclusion that another non-conforming development of the claim should be permitted. In other words, a non-conforming development does not represent the thin end of the wedge justifying non-conforming development in the future of a like or similar kind. The Commissioner’s failure to examine this issue is another defect in his reasoning. He also fails to address the obtrusive nature of this dwelling.
For these reasons, at the very outset of his reasoning, the Commissioner has failed to address critical questions as to whether a two-storey dwelling of this bulk should be permitted. In his view, the only issue in relation to this two-storey dwelling was the siting of the building on the allotment. The Commissioner has, therefore, misdirected himself on a central issue. His reasoning proceeds from an unexamined premise which is flawed for the reasons already expressed.
Not only has the Commissioner misdirected himself on this issue but, when regard is had to other relevant provisions of the Development Plan relating to the preservation of landform, the minimisation of excavation and filling, the prevention of overshadowing and loss of privacy, and the preservation of the character and residential amenity of the locality and of neighbours, it is apparent that this proposal offends so many of the provisions in the Development Plan that it must be refused.
The Commissioner’s conclusion that the floor size and site coverage of the building was satisfactory also fails to have regard to the provisions which are designed to protect landform. The floor size of the dwelling and the coverage of the site required further substantial excavation and further filling. The Commissioner addressed the question of filling and the provisions of the Development Plan relating to landform in his reasons. However, he approached those issues having already concluded that the floor size and site coverage were satisfactory. That is plainly an inappropriate way in which to examine the issues. The question of floor size and site coverage could not be concluded before any consideration of the provisions in the Development Plan relating to the preservation of landform and to excavation and filling. These are related issues and had to be considered as a whole. In addition, when the Commissioner did address the issues of landform, he simply noted that the proposed filling is not supported by the provisions of the Development Plan. The issue of filling required a good deal more consideration than that.
The objectives of minimal interference with the natural topography and landform indicate that the existing platform should not be extended and existing excavation not be increased. The objective that buildings be unobtrusive and dwellings of single-storey or split-level design suggests that a two-storey dwelling should not be constructed unless it is of split-level design. The land is sloping and is conducive to split-level design and that would be preferable even if a split-level design involves a little further excavation. There are a number of ways in which a dwelling can be designed for this site which will not be likely to cause overshadowing or lack of privacy to adjoining neighbours and comply with the provisions of the Development Plan. Due regard to the dictates of the site and to the provisions of the Development Plan demonstrate that a two-storey dwelling constructed on the whole of the platform and requiring extension of the platform offend the objectives of the Development Plan. In other words, there are particular difficulties with this allotment. It is relatively steeply sloped and has a platform somewhere near the centre of the allotment. The existing platform is not large enough for the proposed building. The difficulties of the site coupled with the provisions of the Development Plan have the consequence that, while a dwelling of different and perhaps smaller or split-level design may be suitable on this land, a substantial dwelling with the bulk of this proposal is not.
Thus, the Commissioner both misunderstood the issues and failed to have proper regard to the provisions of the Development Plan. This proposal for a large two-storey dwelling constructed over the whole of the platform and requiring its extension as well as further excavation and filling is quite inconsistent with the spirit and intent of the Development Plan, if not also contrary to express provisions in the Development Plan. It is entirely inconsistent with the relevant Objectives and Principles of the Development Plan and with the proper development of this zone.
In short, if the Commissioner had distilled from the Development Plan the goals for residential development in this Country Living Zone, it would have been readily apparent that the erection of this particular dwelling offended so many basic goals as well as so many Objectives and Principles that it should not be permitted.
The combined effect of the relevant provisions of this Development Plan speaks strongly against the proposal. The Commissioner has failed to recognise that fact and in consequence has fallen into error at the outset of his reasons, an error which colours the whole of his subsequent reasoning. The error is fundamental. It goes to the crux of the issues. It is so material to the reasoning which follows that this appeal must be allowed.
This flaw in the Commissioner’s reasoning pervades his subsequent reasons. It colours the whole of his thinking. Although the Commissioner finds that the proposal offended several requirements of the Development Plan and was sufficiently at variance with the Plan as a whole to warrant refusal of development consent, in the course of dealing with each respect in which the proposal offended the plan, he identified means by which the position might be alleviated. That is a further consequence of the fact that the Commissioner has failed to identify the goals and objectives of this Development Plan.
This same flaw also flows through into the Commissioner’s conclusion that the amendments he propounded sufficiently cure the deficiencies to enable a grant of development consent. Expressed another way, the Commissioner’s failure to address the initial and fundamental question whether this two-storey dwelling with its bulk and size should be permitted on this site led him to make amendments which deal with incidental aspects of the proposal. I will deal with this issue later in these reasons. Had the Commissioner identified the goals or objectives which the Plan spells out for this area, he could only have found that the proposals so offended those goals and objectives that, even as amended, development consent should not be granted.
When regard is had to those provisions it is clear that the proposal does not conform to the Development Plan. For these reasons I would allow the appeal.
In cases when an appeal has been allowed, it is often appropriate to remit the matter to the Environment Court for re-hearing. However, there are two reasons why I do not think it is necessary in this case. First, the Commissioner himself decided that the proposal was sufficiently at variance with the Development Plan that development consent should be refused. Secondly, there is a substantial body of evidence which was led before the Commissioner which supports that conclusion. These are sufficient grounds to restore the decision of the Council and refuse development consent.
There are two other grounds on which to allow the appeal. I turn to them.
Inconsequential Amendments
A further reason for allowing the appeal is that the amendments to the proposed development do not sufficiently remedy the defects identified by the Commissioner when holding that this proposed development was seriously at variance with the Development Plan. An examination of the Commissioner’s reasons shows that there is no basis for allowing the proposal as amended.
The defects identified by the Commissioner have already been described. Shortly stated, they were
·the poor siting of the building and its obtrusiveness were not acceptable;
·interference with landform by excavation and filling and consequential retaining walls and their appearance were not acceptable having regard to the relevant provisions of the Development Plan;
·enlargement of the platform;
·the intrusion upon privacy, particularly upon rear open space at 35 Birch Road, was not acceptable having regard to the provisions in the Development Plan;
·the proposed retaining wall would at midday in mid-winter cast a shadow over the whole of the rear north facing private open space at 35 Birch Road and a portion of the dwelling;
·the proposal was contrary to guidelines in the Development Plan relating to visual amenity and character.
The amendments proposed by the Commissioner were set out in the memorandum he published on 3 February. Shortly stated in summary form, they were
1.to re-site the dwelling one metre to the west, so as to provide a four metre set back from the eastern boundary instead of the initial proposal of a three metre set back;
2.to reduce by about one metre part of the level of the platform and to increase set back of the filling;
3.to reduce the width of the paved area south of the garage from four metres to three metres;
4.to set back the retaining wall at least 600 millimetres from the southern boundary to facilitate planting at the base and drainage and to be stepped with three vertical risers of approximately 1.2 metres in height with the width of the base at each level being increased to 1.2 metres in width - a lattice or other partial screening was to be provided at the top of the retaining wall;
5.to modify the retaining wall on the eastern side and to include in it steps with risers of 1.2 metres in height with a 1 metre bed at each level. Again lattice or other similar screening was to be erected at the top of the retaining wall;
6.an improved landscaping proposal for the excavation to the west and north-west with provision for safety at the top of the bank; and
7.to reduce the height of battened bench slopes on the northern side of the development from a height of 3 metres to 1.5 metres.
In addition, the amendments required improved landscaping, retention of three trees, and proposals for stormwater disposal, all of which can fairly be described as important but for present purposes inconsequential issues. As the Commissioner correctly found, they do not constitute a change to the essential nature or purpose of this proposal. J & L Developments adopted those amendments. However, instead of lowering the level of the platform of one part of the house only, it lowered the level of the whole platform by one metre, thus lowering the overall level of the dwelling.
At the outset, it must be observed that the amendments proposed by the Commissioner do not alter the essential character of the proposal in any material respect. When discussing the issue of the site of the building earlier in his reasons, the Commissioner had described the dwelling in these terms:
“Perched as it would be on a large building platform substantially higher than the natural landform and levels of the adjoining dwellings to the east and to the south, the proposed dwelling and substantial retaining walls would sit obtrusively in their setting to such an extent as to conflict with the quality of the design, the enhancement of the amenity and visual compatibility provisions sought in the Development Plan.”
This was one of the reasons why the Commissioner found that the development as initially proposed was seriously at variance with the Development Plan. However, notwithstanding the reduction in height of the platform, the building remains “perched on a large building platform substantially higher than the natural landform and levels of the adjoining dwellings to the east and the south”. It continues to sit obtrusively in its setting. Similarly, the retaining walls continue to be substantial and to sit obtrusively in their setting.
It is apparent from the Commissioner’s reasons in pars 69 to 79 that he has focussed on what are relatively small changes which do not materially alter the effect of his conclusion that the original proposal should be refused development consent. To use the Commissioner’s own words in par 69 of his reasons published on 5 April 2004,
·the design of the dwelling essentially remains unaltered,
·the adjustment to floor level and the siting of the building on the land are minor,
·additional detail concerning contours, aspects of landscaping and stormwater disposal do not change the essential nature or purpose of the proposal,
·other changes including changes to the level of the dwelling and to the retaining walls do not change the essential nature or purpose of the proposal.
In short, the proposal is the same as before, albeit lowered, and with improvements to the retaining wall and the erection of lattice screens to improve privacy.
The only changes of substance are the lowering of the level of the house and the improvements to the retaining walls on the eastern and southern sides. However, those changes do not in any material way alleviate the interference with landform. All the interferences with landform remain. There will still be quite extensive interference with the landform to the north of the dwelling notwithstanding that the contoured banks will not be as high as originally proposed. The proposal to lower the retaining walls to the south and east do not significantly lessen the impact, particularly when viewed from 35 Birch Road. In short, for these reasons and for the reasons which follow, the amendments do not ameliorate in any material way the deficiencies as to excavations and filling.

In addition, the amendments do not reduce either the bulk or the obtrusiveness of the development. The amendments reduce but do not eliminate the overshadowing. The potential for overlooking neighbours is reduced to some degree by lattice screening. The retaining walls continue to be very substantial. Although they are reduced a little in height and deepened to allow for a greater degree of planting at each level, the reduction in height is offset by the lattice screens. The substance of the matter is that a substantial amount of retaining wall continues to exist.
The Commissioner found that steps should be taken to ensure a reasonable level of privacy for the dwellings occupied by the Moyes and the Brooks. He found that, although some degree of overlooking was inevitable, he was not satisfied that the proposal achieved a reasonable level of privacy for the Moyes and to a lesser extent the Brooks. The amendment proposes a lattice screen to improve privacy However, a lattice screen is plainly not a complete screen. The Commissioner did not favour a solid screen because it would increase overshadowing of the Moyes’ land. Plainly, it will be a question of degree. It does not in substance alter the position. There will still be an unreasonable interference with privacy.
The Commissioner found that there would be a degree of overshadowing. In mid-winter, the top of the retaining wall on the southern side casts a shadow over the whole of the north facing rear courtyard area of 35 Birch Road and over portion of the dwelling. The lowering of the retaining wall will improve that position, but a degree of overshadowing will clearly remain and not only in mid-winter. The Commissioner concluded that lowering the retaining wall would be a “marginal but important improvement”. If it is marginal, it is unlikely to be an important improvement. The Commissioner himself acknowledged that any reduction in the height of the retaining walls would be offset by shadowing caused by the lattice screen. In short, the degree of overshadowing was not materially reduced.
The Commissioner noted that the Development Plan places emphasis on the visual amenity and character of the locality. He found that the visual amenity of the locality is, generally speaking, high and the character of the locality was semi-rural in nature, that character being largely due to the low residential density, the extent of open space, dominance of vegetation and minimal impact of buildings and structures. He concluded that the proposal as initially designed did not achieve or maintain a high visual amenity. He also found that the dwelling would not be sufficiently unobtrusive nor sufficiently spaced from other dwellings nor screened. He also found that there were unsatisfactory aspects for the occupants of the adjoining allotments to the south and east being
·the siting of the dwelling;
·the height of the retaining walls;
·lack of privacy.
For the reasons already identified, the amendments do not materially improve those unsatisfactory features. They do not in any respect reduce the obtrusiveness of the dwelling.
To summarise, when regard is had to the Commissioner’s own findings, it can be clearly demonstrated that the proposed amendments are inconsequential and essentially of a cosmetic nature. The Commissioner’s own findings demonstrate that the amendments do not cure the defects in the proposal identified by him in any material way. As the changes he proposed do not address the substance of the proposal, the dwelling continues plainly to offend the provisions of the Development Plan to such a degree that development consent must be refused.
A Breach of the Rules of Procedural Fairness?
I turn to examine the implications of the Commissioner’s conduct in proposing amendments and stating that, if those amendments are made, the appeal would be allowed. As I have already concluded that this appeal should be allowed, the issue could be put to one side. However, as the question of amendment to development proposals not infrequently arises in the Environment Court, it is necessary to address the question.
It will be recalled that the Commissioner had decided that, in the form presented to him, the proposed development was sufficiently at variance with the Development Plan to warrant refusal of development consent. Given that conclusion, the Commissioner was required by s 35(2) of the Development Act to dismiss the appeal by J & L Developments. However, the Commissioner did not adopt that course. Instead, on his own motion and after the parties had closed their respective cases, the Commissioner propounded a series of amendments and announced that, if they were adopted, he would allow the appeal. It is to be especially noted that the Commissioner did not advance the amendments as proposals for consideration. Instead, he propounded them as a fait accompli, stating that, if adopted, the appeal would be allowed.
At the conclusion of the hearing and after addresses had been completed the Commissioner asked Mr Hayes QC, who appeared for J & L Developments, whether his client was willing to make some minor amendments. He asked:
Commissioner: “I have one matter to put to you, Mr Hayes. Clearly there have been a series of issues where the detail of the plans have been deficient or where there may be amendments. Is your client receptive to a range of further minor amendments which might cover issues like the details of the walls, landscaping, the levels?
Mr Hayes:Yes.
Commissioner: The drawing detail?
Mr Hayes:Yes.”
The Commissioner then adjourned to consider his reasons. It is apparent that the Commissioner was referring to matters of detail. He himself described them as “minor amendments” and “the drawing detail”.
Mr Roder, who appeared for the Moyes and the Brooks on their appeal to this Court, contended that the Commissioner had thereby acted in breach of the rules of procedural fairness in propounding the amendment and then approving his own amendment.
The Environment Court is a court of record: s 5 of the Environment, Resources and Development Court Act, 1993. Section 21 of the Environment, Resources and Development Court Act prescribes the principles which govern proceedings in that court. It is necessary to refer only to s 21(1) which provides:
“(1)On the hearing of proceedings (other than criminal or contempt proceedings) under any relevant Act (but subject to the provisions of any such Act) –
(a)     the procedure of the Court will, subject to this Act, be conducted with the minimum of formality; and
(b)    the Court is not bound by the rules of evidence and may inform itself as it thinks fit; and
(c)    the Court must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.”
As might be expected, nothing in s 21(1) or elsewhere in the Environment Resources and Development Court Act relieves the Environment Court of the obligation to observe the rules of procedural fairness. When hearing appeals against decisions of planning authorities pursuant to s 86 of the Development Act 1993, the Environment Court exercises judicial power and so must observe the rules of procedural fairness. The content of those rules is well settled and was not in dispute. In this case two aspects of the rules of procedural fairness fall for consideration, namely, whether the Commissioner has denied the parties a proper opportunity of being heard and whether the Commissioner was disqualified by reason of pre-judgment. There is no suggestion of actual bias.
The rules of procedural fairness require, among other things, that a party has due notice of an issue and a proper opportunity of being heard before a decision is made: R v Milk Board; ex parte Tomkins [1944] VLR 187 at 198; Babalis v City of Adelaide (1985) 38 SASR 450 at 462 – 464. This rule is subject to any statutory provision to the contrary: Twist v Randwick Municipal Council (1976) 136 CLR 106. In addition, it must be acknowledged that the rules of procedural fairness vary according to the circumstances of any particular case: NCSC v News Corporation Ltd (1984) 156 CLR 296. There was no statutory provision which qualified the operation of this aspect of the rules of procedural fairness in this case.
The other aspect of the rules of procedural fairness concerns disqualification for pre-judgment. The relevant test for determining whether a judge is disqualified on the ground of pre-judgment is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11] and the cases there cited. The test is grounded on the fundamental principle that justice should both be done and be seen to be done. It is based upon the need for public confidence in the administration of justice: Johnson v Johnson (supra) at [12]. If fair-minded people reasonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision: R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 263 approved in Johnson v Johnson (supra) at [12].
At the same time the reasonable apprehension of bias must be firmly established: Re JRL; Ex Parte CJL (1986) 161 CLR 342 per Mason J at 352 and the cases there cited. As the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553 - 554:
“Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”
The above passage was quoted with approval in R v Watson; ex parte Armstrong (supra). See also the discussion in Johnson v Johnson at [13].
The principles of procedural fairness are flexible. They do not sit in watertight compartments: see generally the discussion of Brennan J in Kioa v West (1985) 159 CLR 550 at 613 – 615. In that same decision (at 584 – 585) Mason J observed:
“What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which he decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 – 553; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319 – 321.”
In this case, the question whether the Commissioner has breached the rules of procedural fairness may be considered against both of the rules identified above.
When considering whether the Commissioner has breached the rules of procedural fairness, it must be acknowledged that there will be cases where it will be appropriate for judicial officers in the Environment Court to consider whether amendment of a proposal will result in a development which will merit the grant of development consent. It is not uncommon for amendments to be propounded in the course of the hearing in the Environment Court. I put to one side the question whether a proposed amendment is so substantial that it cannot be permitted. That is another issue altogether: City of Marion v Becker (supra). It is not uncommon for a party or for a member of the Environment Court to put an amendment to a planning witness for comment. There are obvious advantages in that practice. However, care should be taken to ensure that the amendments are not dealt with in a piecemeal manner so that a series of amendments are examined individually but the overall effect of them is not considered by witnesses. In addition, all planning witnesses should have an opportunity to comment on any proposed amendment.
Different considerations apply once the court has adjourned to consider its decision. At that stage, the parties have closed their respective cases. The task then for the court is to consider the case which the parties have adduced. That is particularly so where, as here, the developer has not sought leave to amend its proposal. Notwithstanding that the Commissioner had in the course of the hearing asked witnesses to comment on the utility of some amendments, J & L Developments did not apply to amend its proposal, although it was prepared to make amendments to deal with detail. Generally speaking, consideration of amendments should occur only if the developer seeks leave to make the amendment and all the appropriate witnesses have had an opportunity to comment on them. Furthermore, where, as here, there are a number of amendments, witnesses should have an opportunity to comment on the proposal once all of the proposed amendments have been made. Favourable comments on separate and perhaps unrelated aspects do not necessarily mean that, if those amendments are made, the proposal should merit development consent. These propositions apply notwithstanding that the Environment Court is a specialist court because, in making its decision, the Court has regard to evidence given by witnesses on planning issues.
If the Environment Court itself proposes amendments and states that, if they are adopted the appeal will be allowed, there are two consequences. First, the Court has formed a conclusion on an issue which was not canvassed at the trial and without hearing the parties. The Court is thereby denying the parties any opportunity to call evidence or be heard on the issue. The second is that, even if the parties wish to call evidence and be heard, they would be unwilling to do so because they would reasonably apprehend that the Court, which has proposed the amendment, would not bring an impartial or unprejudiced mind to the issue. That is especially so in this case because the Commissioner quite plainly and unequivocally stated that, if the amendments were made, he would allow the appeal. This is not an instance of a judicial officer canvassing issues with parties or forming a tentative opinion upon which the parties might comment. Instead, it is the pronouncement of an already determined conclusion on an important question going to the heart of the matter, a pronouncement made without notice and without the parties having any proper opportunity of being heard.
In my view, this was a case where the proper course was to dismiss the appeal. The Commissioner had found that the proposal was sufficiently at variance with the Development Plan to uphold the Council’s decision refusing development consent. The Commissioner should have stopped there. Thereafter, he has acted in breach of the rules of procedural fairness.
In the particular circumstances of this case, I think that all that followed the Commissioner’s conclusion that the proposal was sufficiently at variance with the Development Plan as to warrant refusal of development consent should be treated as a nullity. The consequence is that the orders made by the Commissioner should be set aside and in lieu thereof there should be an order in the Environment Court dismissing the appeal. Although orders of this kind are usually made on an application for judicial review, there is not I think any impediment to making such orders on an appeal since in the case of either judicial review or an appeal, the original decision is under review on grounds which include compliance with the rules of procedural fairness.
Mr Hayes QC, who appeared for J & L Developments, submitted that I should adopt the course followed in Opal Inn Pty Ltd v District Council of Coober Pedy (2001) SASC 190 at [34] - [35]. However, that was a case of quite a different kind and must be distinguished. In particular, the particular amendment propounded by the court was one which had arisen in the course of the hearing and had been the subject of evidence. Furthermore, the amendment concerned one aspect only of the proposal. It was not a case of wholesale amendments propounded by the court itself.
Mr Hayes QC also submitted that all of the amendments proposed by the Commissioner had been the subject of comment by the three planning witnesses who had been called. An examination of the evidence shows that that submission is not correct. The proposed amendments were not put to all of the witnesses and some of the amendments were not put to any witness. In particular, the Commissioner did not ask the planning witnesses called by either the Council or the Moyes and Brooks to comment on the proposal that the whole of the site should be reduced in height by one metre.
Furthermore, the questions which the Commissioner asked of witnesses did not, as a general rule, materially advance the matter. For example, the Commissioner asked both Mr Burns and Mr Robertson whether the level of the double garage and of the adjoining home theatre could be lowered 0.8 metres or 0.9 metres to form a split-level and so reduce the height of that part of the building and enable a reduction in height of the retaining wall. Mr Burns replied that he thought it was possible. He was not asked as to the desirability of the proposal or whether it would meet the concerns advanced by the other planning witnesses. As he had been called by J & L Developments, it is likely that he would have given a favourable answer to that question. In answer to the same question Mr Robertson, the Council’s planning witness, said that those alterations were possible and might soften the impact of the retaining wall. However, the Commissioner did not ask Mr Robertson the critical question, namely, whether that would so improve the proposal that it overcame his concerns. In the result, there is no evidence favouring the proposal. Furthermore, the Commissioner did not ask Ms Bell, the planning witness called by the Moyes and the Brooks, any question about lowering the building or any part of it. Thus, the Commissioner did not have any evidence from the two planning witnesses who gave evidence in opposition to the proposal whether these amendments would address their concerns. This only serves to underline the fact that it was necessary to put all of the amendments to witnesses for the purpose of determining whether, at the end of the day, the amendments proposed made any material difference to the proposal. Thus, the Commissioner’s approach was piecemeal and he failed to ask the critical questions of witnesses. I do not accept the submissions advanced by Mr Hayes QC on this issue.
Earlier in his reasons, the Commissioner had correctly directed himself when he said in par 44:
“However, it is not for the Court to go about a significant redesign of any proposal, as a range of interrelated issues and considerations often need to be rationalised and integrated, or to countenance other than relatively minor amendments to a proposal before it, whilst not changing the essential nature or purpose of such proposal.”
The remarks are entirely apposite. However, the Commissioner has ignored the injunction and for the above reasons his failure to comply with it are a further reason to allow the appeal.
Conclusion
For all of these reasons, I allow the appeal, set aside the decision of the Commission, and restore the decision of the Council. There will be orders to that effect