Parabanks Shopping Centre Pty Ltd v The City of Salisbury - [2013] SASC 168

Supreme Court of South Australia
(Civil: Application for Judicial Review)
PARABANKS SHOPPING CENTRE PTY LTD v THE CITY OF SALISBURY & ANOR
[2013] SASC 168
Judgment of The Honourable Justice Blue
8 November 2013
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - CONSENT AUTHORITIES
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - SHOPS, SHOPPING CENTRES AND COMPLEXES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - DELEGATION OF POWER
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF
The plaintiff, Parabanks, operates a shopping centre in the Salisbury Town Centre. The second defendant, Saints, applied to the first defendant, Salisbury Council, for development plan consent to develop land at Salisbury Plain as a neighbourhood shopping centre. The Council granted development plan consent on 20 December 2013.
Saints subsequently lodged a second application which was a modified version of its original application in light of Parabanks' contentions that the development plan consent was invalid. The Council granted development plan consent in respect of the second application on 12 June 2013.
Parabanks seeks certiorari quashing both development plan consents. Parabanks contends that they are invalid because:
1. the gross leasable area of relevant shops exceeded the cap of 5,500 square metres rendering the proposed development in each case Category 3, non-complying;
2. the Council was obliged to make further enquiries to assess the gross leasable area before granting development plan consent;
3. the applications were invalid because they were hypothetical;
4. there was no valid permission granted by the Council to vary the first application to remove the “pad site” from the application;
5. the first development plan consent was invalid because the Council had impermissibly delegated its powers to more than one delegate;
6. the first development plan consent was invalid because it failed to include an essential aspect of the proposed development, namely the removal of the regulated trees.
Held by Blue J quashing the first development plan consent but refusing relief in respect of the second development plan consent:
1. In the first application, the gross leasable area of relevant shops exceeded 5,500 square metres and was therefore a Category 3, non-complying development (at [121]).
2. In the second application, the gross leasable area of relevant shops did not exceed 5,500 square metres (at [258]).
3. The Council was entitled to accept that tenancies were personal service establishments, restaurants or a bulky goods outlet as designated on the plans at face value and was not obliged to make further inquiries about those proposed tenancies (at [125]).
4. There was no valid application by Saints to vary the first application as required by s 39 of the Development Act. The Council did not validly permit a variation to delete the pad site (at [172]).
5. The proposed development was not hypothetical. There was no manifest reason for the Council to conclude that it was unlikely that construction of the proposed shopping centre would be completed in time (at [177]).
6. The Council could validly delegate powers simultaneously under s 34(23) of the Act (at [194]).
7. The first application was not invalid by reason of the Council failing to take into account the three regulated trees which would need to be removed before development (at [203]).
8. The first development consent granted by Mr Taylor on 17 January 2013 was invalid because the development application had already been finally determined by Mr Sproule on 20 December 2013 (at [214]).
9. The first development plan consent should be quashed. The second consent was valid (at [260-261]).
Development Act 1993 (SA) s 4, s 32, s 33, s 34, s 35, s 38, s 39, s 40, s 42, s 44; Planning and Development Act 1966 (SA); Development Regulations 2008 (SA) r 3, r 16, r 20, r 48; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Hackney Hotel Pty Ltd v Town of Saint Peters (1983) 32 SASR 145, distinguished.
McKenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539; Vines v Djordjevitch (1955) 91 CLR 512, discussed.
Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; (2008) 162 LGERA 96; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Australian Communist Party v The Commonwealth (1951) 83 CLR 1; Bade v Rural City of Murray Bridge [2008] SASC 189: (2008) 101 SASR 302; Commissioner of Taxation v Industrial Equity (2000) 98 FCR 573; Compaction Application Tips Pty v Australian Waste Pty Ltd [2001] SASC 409: (2001) 80 SASR 435; Corporation of the City of Enfield v Development Assessment Commission (1994) 63 SASR 22; Currie v Dempsey (1967) 69 SR (NSW) 116; Ex parte Savage and Savage [1989] WAR 46; Holland v Jones (1917) 23 CLR 149; Munro Brice and Co v War Risks Association Ltd [1918] 2 KB 78; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; (2004) 137 LGERA 189; Ormerod v Balslov (1989) 52 SASR 263; R v Foster; ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138; Rivergum Homes Pty Ltd v District Council of the Copper Coast [2004] SASC 376; (2004) 136 LGERA 336; Stebbins v Lismore City Council (1988) 64 LGRA 132; Television Capricornia v Australian Broadcasting Tribunal (1986) 13 FCR 511; The Glendarroch [1884] P 226, considered.

PARABANKS SHOPPING CENTRE PTY LTD v THE CITY OF SALISBURY & ANOR
[2013] SASC 168
Civil
BLUE J.

This is an action for judicial review. The plaintiff, Parabanks Shopping Centre Pty Ltd (“Parabanks”), seeks orders quashing the development plan consent granted by the first defendant, the City of Salisbury, upon applications by the second defendant, 83 Saints Road Nominees Pty Ltd (“Saints”).
The applications related to land owned by Saints situated on the corner of Main North Road and Saints Road, Salisbury Plain (“the Land”). Saints made applications in April 2012 and May 2013 in similar terms to develop the Land as a neighbourhood shopping centre.
The Council granted development plan consent in respect of the first application on 20 December 2012 and in respect of the second application on 12 June 2013.
Parabanks contends that each application should have been assessed by the Council under the Salisbury Council Development Plan as non‑complying[1] and as Category 3[2] because it included relevant shops with a total gross leasable area exceeding 5,500 square metres. Parabanks contends that the Council therefore had no jurisdiction to grant development plan consent because the concurrent consent of the Development Assessment Commission was required for non‑complying development and because the Council did not give the required notifications for Category 3 development.
[1] Development Act 1993 (SA) s 35.
[2] Development Act 1993 (SA) s 38.
The principal orders sought by Parabanks are in the nature of certiorari quashing the development plan consents and mandamus requiring the Council to perform its legal duties.
The principal questions which arise in relation to the development applications are:
1.Did the gross leasable area of relevant shops exceed the cap of 5,500 square metres?
2.Alternatively, was the Council obliged to make further inquiries before granting development plan consent?
3.Was there a valid permission granted by the Council, in response to a valid application, to vary the first application to remove the “pad site” from the application? Was the pad site excluded from the development plan consent granted by the Council?
4.Was the application invalid on the basis that it was hypothetical?
5.Was the grant of the first development plan consent invalid because the Council had not validly delegated its powers?
6.Was the first development plan consent by Mr Taylor invalid because the application had already been finally determined by Mr Sproule?
The Development Plan
The relevant version of the Salisbury Council Development Plan is the version consolidated as at 19 April 2012 (“the Development Plan”). The Development Plan creates a number of different zones.
District Centre Zone
One zone is the District Centre Zone. The objectives of the District Centre Zone were as follows:
A zone primarily accommodating a range of shopping, administrative, cultural, office, commercial, entertainment, educational, religious, and recreational facilities.
(a)A district centre is the main focus of business and community life outside a regional centre.
(b)A district centre comprises centre facilities that, together, meet the community, business and shopping needs of the surrounding district.
(c)A district centre will accommodate a higher level of comparison shopping than is normally available in a neighbourhood or local centre.
(d)A discount department store is the highest level of retail representation that may be located in a district centre.
There are three district centres within the Salisbury Council. The largest is the Salisbury Town Centre Policy Area. Parabanks is the owner or operator of land devoted to retail activities within this Policy Area. This Policy Area had the following objectives:
2.A centre being the main focus of retail, administrative, community, educational, recreational, and cultural, activities in the City of Salisbury.
3.A centre providing a proportion of the total requirement for goods and services commensurate with its role as a district centre and the main focus of centre facilities in the City of Salisbury.
4.Future development in the centre reinforcing those qualities reminiscent of the Salisbury Town Centre’s formation as a small, rural township, and, in particular, future development having regard to historic buildings and features in the centre area.
The other two district centres are the Ingle Farm Policy Area and the Salisbury Downs Policy Area which are the main focus of retail, administrative, community, educational, recreational and cultural activities in the southern and the western/north‑western parts respectively of the City of Salisbury.
Each Policy Area contains a Retail Core Precinct. There are no square metre limits imposed for the area devoted to retail or, more generally, commercial land uses within those three policy areas.[3]
[3] Although obviously the Precincts and the Policy Areas are limited in geographical area.
Neighbourhood Centre Zone
The Development Plan contains a Neighbourhood Centre Zone which relates to neighbourhood centres. Neighbourhood centres are one level down from district centres.
The objectives of the Neighbourhood Centre Zone are as follows:
1.Accommodation of a range of centre facilities to meet the shopping, community, business and recreational needs of the surrounding neighbourhood.
…
5.A new centre at Saints Road, Salisbury Plain in the City of Salisbury in which land uses, vehicle access points and landscape buffers are located in accordance with the Saints Road, Salisbury Plain Centre Concept Plan Fig Nce/8.
There are five established neighbourhood centres in the west of Salisbury, namely Waterloo Corner Road, Burton; Bolivar Road, Paralowie; Whites Road, Paralowie; Shepherdson Road, Parafield Gardens; and Kings Road, Parafield Gardens. There are two new neighbourhood centres in the south of Salisbury, namely Light Road, Walkley Heights and Montague Road, Pooraka.
The eighth neighbourhood centre is the new neighbourhood centre at Saints Road, Salisbury Plain (“the Neighbourhood Centre”). The Neighbourhood Centre comprises 4.1 hectares situated on the south-westerly corner of Main North Road and Saints Road, Salisbury Plain. It is divided into three Policy Areas. Policy Area 1 is Conventional Retail and is located on the south-eastern side. Policy Area 2 is Bulky Goods and is located on the western side. Policy Area 3 is Car Parking and is located on the northern side. The Land falls within Policy Area 1 and the eastern component of Policy Area 3. The Land[4] covers 2.3 hectares out of the total area of 4.1 hectares comprising the Neighbourhood Zone.
[4] Contained in two certificates of title register book volume 6029 folios 167 and 173.
Appendix 1 contains the concept plan showing the layout of the Neighbourhood Centre.
Local Centre Zone
The Local Centre Zone relates to local centres. Local centres are one step down from neighbourhood centres.
The objectives of the Local Centre Zone are as follows:
1.A zone primarily accommodating facilities that meet the day-to-day needs of the local community.
2A Local Centre Zone may include the following centre facilities:
(a)     Consulting Room
(b)     Hairdresser
(c)     Shop - where the gross leasable area of all shops does not exceed 450 square metres.
(d)     Shop and Dwelling
The singular for centre facilities listed above may be read as plural in accordance with the objective that the size of any centre, and the range of facilities in it, should be related to the size and characteristics of the population it serves.
The Neighbourhood Centre
As observed above, the Neighbourhood Centre is a new centre. Its desired character statement includes:
The Saints Road, Salisbury Plain Neighbourhood Centre Zone will serve the weekly shopping and business needs for the surrounding area. The centre will provide one supermarket and a range of convenience and speciality shops limited to 5500 square metres in gross leasable area. Other land use is to located in the centre will include offices, consulting rooms, personal services establishments, community facilities, retail showrooms, bulky goods outlets and restaurants. The gross leasable areas of these other land uses are not to be included in the 5500 square metres limit.
Land uses within the bulky goods policy area will be rigorously restricted to services trade premises, retail showrooms, and bulky goods outlets. The bulky goods policy area will not contain land uses that display, sell or hire food stuff, clothing or personal effects goods.
The principles of development control for the Neighbourhood Centre include the following:
Salisbury West Neighbourhood Centres
8.The neighbourhood centres at Waterloo Corner Road, Burton, Fig NCe/3; Bolivar Road, Paralowie, Fic NC3/4; Whites Road, Paralowie, Fig NCe/5; Shepherdson Road, Parafield Gardens, Fig NCe/6; and Kings Road, Parafield Gardens, Fig NCe/7, should:
(a)be developed in accordance with concept plans;
(b)contain areas for retail/commercial, community, educational, and recreation/open space use in accordance with concept plans;
(c)accord with the concept plans in respect to vehicle and pedestrian access;
(d)have a unified landscaping and building design; and
(e)be designed to be attractive and recognizable community focal points.
9.Development in the centres referred to in Principle of Development Control 8 should provide public courtyards and other pedestrian areas, and include seating and other amenities where appropriate.
...
25.The gross leasable area of shops (excluding retail showrooms, bulky goods outlets, personal service establishments and restaurants) in the Saints Road, Salisbury Plan Neighbourhood Centre Zone should not exceed 5500 square metres of gross leasable area, and thereby avoid detrimentally impacting on the viability of the Salisbury District Centre Zone.
26.Land uses within the Bulky Goods Policy Area as depicted in Concept Plan Fig NCe/8 should be severely restricted to service trade premises, retail showrooms, and bulky goods outlets and should not include conventional shops (including restaurants and personal service establishments).
…
28.Land uses within the Conventional Retail Policy Area, as depicted in Concept Plan Fig NCe/8, may contain a supermarket, specialty shops, retail showrooms, bulky goods outlets, personal service establishments, restaurants, offices, consulting rooms and community facilities.
…
35.The following development is non-complying in the Neighbourhood Centre Zone:
…
Shop or a group of shops, including alterations and additions (but excluding retail showroom(s), bulky goods outlet(s), restaurant(s) and personal service establishment(s)) within the Saints Road, Salisbury Plain Neighbourhood Centre Zone that would result in a gross leasable area of shops within the Zone or more than 5500 square metres or where the gross leasable area of shops within the Zone already exceeds 5500 square metres.
…
Background
Council delegations
On 24 October 2011, the Council purportedly exercised its powers under sections 20 and 34(23) of the Act to delegate as from 8 November 2011 powers under section 33 of the Act inter alia to assess a development against and grant or refuse consent in respect of the provisions of the Development Plan to the Chief Executive Officer and to the Development Assessment Panel.
On 15 October 2012, the Chief Executive Officer sub-delegated various delegated powers, including the power to assess a development against and grant or refuse consent in respect of the provisions of the Development Plan to Position 795 Manager Development Services and separately to Position 148 Development Officer Planning.
At all material times, Mr Taylor held Position 795 Manager Development Services and Mr Sproule held Position 148 Development Officer Planning.
The first application
The Land presently contains a building comprising a hardware store (now disused) and a Beer, Wines & Spirits outlet (still operating).
On 20 April 2012, Saints lodged with the Council a development application form (“the first application”) seeking development plan consent for demolition of the existing buildings and construction of a neighbourhood shopping centre and bulky goods outlet on the Land as depicted in seven drawings prepared by Saunders Retail dated 28 March 2012 (“the March 2012 plans”). The plans showed three buildings.
1.The main building comprised two levels: a ground floor level and a basement level. Each level contained a total floor area of approximately 9,000 square metres. The ground floor level housed a supermarket designated T1, 27 other tenancy areas and an arcade. The basement level comprised a car park, fitness centre and plant and store rooms. There were several lifts and stairs between the two levels, including two goods lifts and a set of stairs dedicated to use by the supermarket.
2.A smaller adjoining building with a gross leasable area of approximately 1,600 square metres was designated a bulky goods outlet (“the bulky goods outlet”).
3.A third smaller building with a gross leasable area of approximately 365 square metres near the corner of Main North Road and Saints Road was designated pad site (“the pad site”). The pad site was surrounded by a perimeter road.
The application and accompanying plans did not show the specific purpose of the 27 tenancy areas in the main building.
On 26 April 2012, Saints’ urban planning consultant Aurecon sent an email to the Council attaching amended plans dated 24 April 2012 highlighting the intended use of the floor areas and their calculations (“the April 2012 plans”). The plans showed the supermarket comprising a gross leasable area of 3,500 square metres. They showed eight tenancy areas designated as “restaurant” comprising 904 square metres, eight tenancy areas designated as “personal services” comprising 1,580 square metres and the remaining 11 tenancies designated as “retail” comprising 1,605 square metres. They showed the bulky goods outlet comprising 1,500 square metres. They showed a revised location for the pad site with a revised perimeter road around the pad site. They labelled the pad site “restaurant” with an area of 365 square metres.

On 30 April 2012, the Council assessed the proposed development as not complying or non‑complying (merit) and Category 2. The Council then gave the notices and referrals required of Category 2 development applications.
On 16 May 2012, the Council received a representation. The representor said a councillor had said that the restaurant on the corner would probably be a fast food outlet.
On 24 May and 30 November 2012, Saints’ traffic consultant, Mr Weaver, wrote traffic and parking assessment reports which were passed on to the Council. He described the pad site as a “takeaway food outlet” and “a fast food outlet”, most likely to be operated as a McDonalds’ franchise. On 20 June 2012, Infra Plan wrote to the Department of Transport enclosing a preliminary design of the access from Main North Road. It described the pad site as a “fast food takeaway outlet”.
On 9 July 2012, the solicitors for Parabanks wrote to the Council claiming that the proposed development exceeded 5,500 square metres of gross leasable area and hence was a non‑complying development which should have been dealt with as a Category 3 form of development for public notification purposes. They requested that the Council re‑process the application as a non‑complying Category 3 form of development or, if the Council refused to do so, to provide copies of all documents on the Council’s file in respect to the application.
On 23 July 2012, the solicitors for the Council replied, stating that the gross leasable area was only 5,105 square metres. They suggested that Parabanks’ solicitors seek the documents directly from the applicant. They invited submissions on why it was contended that the application was a non‑complying Category 3 form of development.
On 8 November 2012, Saunders Retail prepared a further revision of the plans for the proposed development dated 8 November 2012 (“the November 2012 plans”). They showed the pad site in the same configuration as in the April 2012 plans.
Some time between 8 November and 13 December 2012, somebody on behalf of Saints orally informed somebody at the Council that Saints wished to delete the pad site from the application for development plan consent and would later submit a separate application in respect only of the pad site requesting that the Council note the withdrawal on the decision notification form. The communication was not in writing and no written record was made of it.
The first approval
On 13 December 2012, Mr Sproule completed a planning checklist and assessment. He assessed the gross leasable area of relevant shops at 5,105 square metres. He recorded that the proposed pad site restaurant will be subject to separate application and is located within the parking policy area. He said that fast food restaurants are typically found in these locations at the intersection of two main roads where they gain from the exposure to passing motorists. He set out 20 conditions together with an advice that the freestanding building marked as “restaurant” in the eastern corner of the site is not part of the application and requires a separate development application. The checklist was countersigned by Mr Taylor.
On 20 December 2012, Mr Sproule signed a letter to Saints enclosing a decision notification form for the development application stating that development plan consent had been granted subject to 19 conditions. The form comprised six pages. The first page was the decision notification and was dated and signed by Mr Sproule. The next four pages were the schedule of conditions which was also dated and signed by Mr Sproule. The last page was advices which were neither dated nor signed. The advice on the last page included a final paragraph concerning the pad site in the same terms as contained in the planning checklist. The November 2012 plans were stamped by the Council showing development plan consent was granted on 20 December 2012 subject to 19 conditions. Mr Sproule sent the letter and form by email to Saints on 21 December 2012.
On 8 January 2013, Saints wrote to Mr Sproule requesting deletion of conditions 12 and 13.
On 17 January 2013, Mr Taylor signed a letter to Saints attaching a decision notification form bearing the date 20 December 2012.[5] The letter and form were identical to the letter and form signed by Mr Sproule on 20 December 2012, except that original conditions 12 and 13 had been omitted.
[5] I infer that it was signed on 17 January 2013 because it could not have been signed before Saints’ request to delete two conditions on 8 January 2013 and because Mr Sproule sent the letter to Saints on 17 January 2013.
On 17 January 2013, Mr Sproule sent to Saints by email the letter and decision notification form signed by Mr Taylor dated 20 December 2012.
On 8 March 2013, Parabanks instituted this action seeking judicial review of the development plan consent granted by the Council on 20 December 2012.
The second application
On 18 April 2013, Evolution Hub sent an email to Saints confirming instructions to prepare a new development application based on the previous application with three modifications:
1.the supermarket plant room was to be combined with other plant rooms to become a common/shared plant room;
2.the receiving area was to be nominated as a common/shared loading zone;
3.the roof over the receiving area was to be reduced to ensure that the total traditional retail area and covered receiving area were less than 5,500 square metres.
On 21 May 2013, Saints lodged with the Council a development application form (“the second application”) seeking development plan consent for a neighbourhood shopping centre. The second development application was lodged (on a without prejudice basis) by Saints to overcome allegations that the first application was incorrectly processed by the Council. It was accompanied by a letter from Green Light Planning Solutions describing the proposed development and attaching plans of it. The letter stated that the Foodland supermarket would have a floor area of 3,551 square metres and there would be 14 retail tenancies totalling 1,785.6 square metres, giving a total gross leasable floor space for retail of 5,336.6 square metres. The letter stated that the common plant room and common storeroom were common to all tenancies. It stated that there was a shared receiving area to be shared between supermarket deliveries and bulky goods stock deliveries and arrivals, whereas the bulky goods loading dock was only for the collection of bulky goods by customers. The accompanying plans were dated 19 May 2013 (“the May 2013 plans”) and showed the plant room and the receiving area as being “common” and “shared” respectively.
On 12 June 2013, Mr Sproule sent an email to Green Light attaching a plan showing three regulated trees within or adjacent to the footprint of the new building.
On 12 June 2013, Mr Sproule recorded the total gross leasable area of the proposed development at 5,288 square metres and assessed the proposal as not non‑complying and Category 2.
On 24 July 2013, Saints applied for development approval to remove three regulated trees from the site upon which the buildings were proposed to be built and on 13 August 2013 Mr Pantelos on behalf of the Council issued a decision notification from stating that development approval had been granted.
On 13 August 2013, the Development Assessment Panel of the Council considered Saints’ development application dated 21 May 2013. Mr Sproule provided a detailed report to the Panel. The Panel decided to grant development plan consent. On 13 August 2013, Mr Pantelos issued a decision notification form to Saints stating that development plan consent had been granted in respect of its development application dated 21 May 2013 subject to 14 conditions.
The first approval
The questions which arise in respect of the first application and approval are as follows:
1.Did the gross leasable area of relevant shops exceed the cap of 5,500 square metres and in particular:
(a)    should an area adjacent to the supermarket at basement level designated “receiving area” (“the receiving area”) be included in the calculations?
(b)    should the pad site near the corner of Main North Road and Saints Road be included in the calculations?
(c)    should tenancies shown as “personal services”, “restaurants” or “bulky goods outlet” be included in the calculations?
(d)    should the entire area of any buildings containing relevant shops be counted in the calculations even though they include areas devoted to personal services, restaurants and bulky goods outlets?
2.Alternatively, was the Council obliged in the circumstances to make further inquiries into the above issues before classifying and characterising the application and before granting development plan consent?
3.Was there a valid permission granted by the Council, in response to a valid application, to vary the application to remove the pad site from the application? Was the pad site excluded from the development plan consent granted by the Council?
4.Was the application invalid on the basis that it was hypothetical?
5.Was the grant of development plan consent invalid because the Council had not validly delegated its powers to the decision maker(s) Mr Sproule and Mr Taylor?
6.Was the development plan consent by Mr Taylor invalid because the application had already been finally determined by Mr Sproule?
Gross leasable area
Parabanks contends that the gross leasable area of relevant shops within the proposed development exceeded 5,500 square metres and accordingly the Council did not have jurisdiction or power itself to grant approval. The defendants contest the major premise of that contention, but accept that the conclusion follows if the major premise is established.
The starting point for Parabanks’ contention is that the true area of the spaces designated “supermarket” and “retail” in the 2012 plans was 3,589 square metres and 1,622 square metres respectively, giving a total of 5,211 square metres.
Parabanks tendered an affidavit by a surveyor, Mr Cornish, who testified to his calculation of those areas based on the plans. His evidence was not challenged or contradicted. I accept his evidence. This results in a higher starting point of 5,211 square metres than that calculated by Saints in its April 2012 submission to the Council of 5,105 square metres.
Parabanks then makes three cumulative or alternative contentions that additional areas comprised relevant shops for the purpose of calculating the gross leasable area, any one of which would cause the total gross leasable area of relevant shops to exceed 5,500 square metres. Those contentions are:
1.the receiving area comprises 457 square metres and is to be counted as a relevant shop;
2.the building on the pad site comprises 366 square metres and is to be counted as a relevant shop;
3.the area designated “personal services” comprises 949 square metres, “restaurants” comprises 918 square metres and “bulky goods outlet” comprises 1,722 square metres and each is to be counted as relevant shops.
Provisions impacting gross leasable area
Principle 25 of the Neighbourhood Centre Zone section provides:
The gross leasable area of shops (excluding retail showrooms, bulky goods outlets, personal service establishments and restaurants) in the Saints Road, Salisbury Plain Neighbourhood Centre Zone should not exceed 5500 square metres of gross leasable area, and thereby avoid detrimentally impacting on the viability of the Salisbury District Centre Zone.
The purpose of the limitation is identified within principle 25 itself as avoiding detrimentally impacting the viability of the Salisbury District Centre Zone. That purpose is amplified by the first two paragraphs of the desired character statement for the Salisbury Plain Neighbourhood Centre which provides:
The Saints Road, Salisbury Plain Neighbourhood Centre Zone will serve the weekly shopping and business needs for the surrounding area. The Centre will provide one supermarket and a range of convenience and speciality shops limited to 5500 square metres in gross leasable area. Other land use is to be located in the Centre will include offices, consulting rooms, personal service establishments, community facilities, retail showrooms, bulky goods outlets and restaurants. The gross leasable areas of these other land uses are not to be included in the 5500 square metres limit.
Land uses within the bulky goods policy area will be rigorously restricted to services trade premises, retail showrooms, and bulky goods outlets. The bulky goods policy area will not contain land uses that display, sell or hire food stuff, clothing or personal effects goods.
Principle 35 contained within the Neighbourhood Centre Zone section of the Development Plan provides:
The following development is non-complying in the Neighbourhood Centre Zone:
…
Shop or a group of shops, including alterations and additions (but excluding retail showroom(s), bulky goods outlet(s), restaurant(s) and personal service establishment(s)) within the Saints Road, Salisbury Plain Neighbourhood Centre Zone that would result in a gross leasable area of shops within the Zone of more than 5500 square metres or where the gross leasable area of shops within the Zone already exceeds 5500 square metres.
The Development Regulations 2008 (SA) (“the Regulations”) by regulation 3 and schedule 1 define specific terms for the purpose of both the Regulations and any development plan. These definitions apply to the relevant words used in principles 25 and 35.
The total floor area is defined by the Regulations in the following terms:
Total floor area with respect to a building or other roofed area means the sum of the superficies of horizontal sections thereof made at the level of each floor, inclusive of all roofed areas and of the external walls and of such portions of any parting walls as belong to the building.
The gross leasable area is relevantly[6] defined by the Regulations in the following terms:
Gross leasable area means the total floor area of a building excluding public or common tenancy areas such as malls, verandahs or public toilets;
[6] The definition also contains seven exclusions, but none are suggested to be relevant in the present case and have been omitted from the definition set out.
The Regulations define a shop in the following terms:
Shop means –
(a)     premises used primarily for the sale by retail, rental or display of goods, foodstuff, merchandise or materials; or
(b)     a restaurant; or
(c)     a bulky goods outlet or a retail showroom; or
(d)     a personal service establishment.
The Regulations define a bulky goods outlet or retail showroom collectively in the following terms:
Bulky goods outlet or retail showroom means premises used primarily for the sale, rental, display or offer by retail of goods, other than foodstuffs, clothing, footwear or personal effects goods, unless the sale, rental, display or offer by retail of the foodstuff, clothing, footwear or personal effects goods is incidental to the sale, rental, display or offer by retail of other goods.
The Regulations define a restaurant in the following terms:
Restaurant means land used primarily for the consumption of meals on the site.
It can be seen that principle 25 defines the subject matter of the gross leasable area as being shops but then excludes bulky goods outlets and retail showrooms, personal service establishments and restaurants. However, bulky goods outlets and retail showrooms are themselves defined as effectively including all types of shops other than the sale etc by retail of foodstuffs, clothing, footwear or personal effects goods.
The net effect of the operation of principle 25 and 35 in conjunction with the definitions contained in the Regulations is that the only shops to be included in the calculation of gross leasable area (“relevant shops”) are:
Premises used primarily for the sale, rental, display or offer by retail of foodstuffs, clothing, footwear or personal effects goods. Premises are not used primarily for the sale of foodstuffs if they are used primarily for the consumption of meals on the site.
This approach is reflected in the second paragraph of the desired character statement quoted at [53] above referring to the Bulky Goods Policy Area not containing land uses that display, sell or hire foodstuffs, clothing or personal effects goods.
Burden of proof
The general principle is that the burden of proof of facts constituting a cause of action lies upon the plaintiff.[7] This principle applies to judicial review proceedings.[8] It applies to judicial review proceedings in which it is alleged that a Council did not have jurisdiction to grant development approval.[9]
[7]    Currie v Dempsey (1967) 69 SR(NSW) 116 at 125 per Walsh JA.
[8]    R v Foster; ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 153 per Dixon CJ, Fullagar and Kitto JJ.
[9]    Corporation of the City of Enfield v Development Assessment Commission (1994) 63 SASR 22 at 30 per Debelle J.
Parabanks accepts that in general terms it bears the burden of proof. However, it contends that, where special grounds of exception, excuse or justification would constitute an answer to its case, the burden of proof lies upon the defendants. Parabanks relies upon the decision of the High Court in Vines v Djordjevitch.[10]In that case, Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ said:
“There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not”. The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations … the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.[11]
(Citation omitted)
A similar principle has been applied in contract cases in which, as a matter of construction, a proviso relieves a defendant from liability.[12]
[10] (1955) 91 CLR 512.
[11] (1955) 91 CLR 512 at 519-520.
[12] See, for example, The Glendarroch [1894] P 226 at 231 per Lord Esher MR; Munro Brice and Co v War Risks Association Ltd [1918] 2 KB 78 at 87-88 per Bailhache J.

Parabanks seeks to apply the proviso principle to the definition of gross leasable area. Parabanks accepts that it bears the burden of proving the total floor area, but it makes two contentions.
Parabanks’ first contention is that the defendants bear the onus of proving what are public or common tenancy areas because that constitutes an exclusion from total floor area for the purpose of the definition of gross leasable area.
I reject Parabanks’ first contention. The question whether a provision is truly a proviso is to be considered as a matter of substance and not form. In substance, the gross leasable area is that part of the building which is dedicated to tenancies (albeit including walls). If the definition were so expressed, it would be clear that the onus of proof would lie upon the plaintiff. The mere fact that the definition is expressed so as to exclude public or common tenancy areas does not change the substantive position.
Parabanks’ second contention is that the proviso principle applies in relation to the definition of the gross leasable area in principles 25 and 35, namely it is of shops (excluding retail showrooms, bulky goods outlets, personal service establishments and restaurants). Since the subject matter is defined in terms of shops with the exclusion of four specific types of shop, the burden of proof that given areas fall within the exclusions lies upon the defendants.
I reject Parabanks’ second contention. As explained above, as a matter of substance, the gross leasable area the subject of the calculation is confined to premises used primarily for the sale etc by retail of foodstuffs, clothing, footwear or personal effects goods. The purpose of principle 25 is to protect the District Centre Zone from undue competition in what are regarded as the core retail activities of selling clothing/footwear, foodstuffs and personal effects goods. Properly analysed, principles 25 and 35 does not operate by way of proviso but operate directly upon premises used primarily for the retail sale of clothing/footwear, foodstuffs and personal effects.
The receiving area
Drawing DA-07 shows an area designated “receiving area” to the east of the supermarket’s goods lifts. The area is roughly rectangular in shape and is shown as being covered by the roof of the bulky goods outlet building. The inner or northern half of the receiving area is shown as having an elevated floor (“the raised platform”) compared to the outer or southern half of the receiving area. The raised platform is at the same level as the floor of the goods lifts and of the adjacent stairs which lead up to the supermarket on the ground floor. The raised platform permits trucks to unload onto a level which is higher than the ground level upon which the tyres of the trucks stand (in the outer half of the receiving area).
Parabanks contends that the receiving area forms part of the relevant total floor area within the meaning of the definition of gross leasable area, and that it is not excluded as a public or common tenancy area from that definition. The defendants contest both propositions.
Total floor area
Parabanks contends that the receiving area forms part of the total floor area within the meaning of the definition of gross leasable area because it is covered by a roof.
The defendants contend that the receiving area does not form part of the total floor area of a building because it is not a building but rather an “other roofed area” within the meaning of the definition of total floor area in the Regulations as quoted above at [56].
The definition of gross leasable area as quoted above at [57] contemplates that verandahs form part of the total floor area of a building unless they comprise public or common tenancy areas. This demonstrates that a “roofed area”, such as a verandah, is treated as being part of the total floor area of a building for the purposes of the definition of gross leasable area. In addition, the two definitions are intended to be read together and I construe them such that they both refer to the same subject matter, namely a building which incorporates a roofed area, at least in the circumstances in which the roofed area is attached to the building. I reject the defendants’ primary contention.
The defendants make an allied submission that a gross leasable area must have a floor of the type which is found inside buildings and that the bitumised base of the receiving area does not comprise a floor within the meaning of that definition.
I reject that submission. I infer that the receiving area is to be paved by a material such as concrete or bitumen. Typically, a verandah will be paved by concrete, bitumen or tiles, and a verandah is contemplated as forming part of the gross leasable area as defined. Internal areas within buildings can also contain floors which are paved by concrete or bitumen.
The defendants make a further allied submission that the receiving area does not form part of the gross leasable area of shops within the meaning of those words in principles 25 and 35 because its roof is part of the roof of the bulky goods outlet and not part of the roof of the main building. The bulky goods outlet is excluded from the calculation of the relevant gross leasable area by principle 25 and this exclusion carries with it the receiving area which lies under its roof.
I reject the defendants’ submission. Principles 25 and 35 are addressed to the total gross leasable area of all shops within the Neighbourhood Centre being the area of 4.1 hectares referred to at [15] above. It does not matter whether the relevant shops comprise a single shop, a group of contiguous shops or a series of independent shops. It does not matter whether the shops are in the same building as, say, a bulky goods outlet or are housed in their own separate building. The fact that the roofline over the receiving area is lower than the roofline over the main building is irrelevant.
Excluded public or common tenancy area
Parabanks contends that the receiving area is dedicated to the supermarket and is therefore not a public or common tenancy area. The defendants contend that it is shared between the supermarket and the bulky goods outlet or at least the plaintiff has not proved otherwise.
On the face of the relevant plans (especially DA-07 and DA-08), I am satisfied that the receiving area was dedicated to the supermarket. I make this finding for several reasons.
First, the receiving area is adjacent to the two goods lifts and stairs which are themselves dedicated to the supermarket.
Secondly, the floor level of the receiving area is at the same level as the goods lifts intended to serve the supermarket and at a higher level than the floor of the bulky goods outlet. While it is conceivable that goods could be unloaded onto the raised platform and then lowered down to the floor of the bulky goods outlet, a much more practical design would be to place the raised platform only on the eastern side adjacent to the goods lifts and not to elevate the platform on the western side of the receiving area if it were intended to serve the bulky goods outlet.
Thirdly, the bulky goods outlet is shown as having its own loading dock under the bulky goods outlet’s roof in a cut out section in the south eastern corner of the bulky goods outlet.
Fourthly, in a negative sense, there is an absence of anything shown on the drawings to suggest that the receiving area was intended to serve the bulky goods outlet.
I have made my finding on the face of the plans. If I have regard to other evidence adduced in the case, my conclusion is fortified. Mr Weaver’s report dated 24 May 2012 was provided to Saints and in turn provided by Saints to the Council. Saints thereby endorsed the report. In Appendix A of Mr Weaver’s report, he showed representative turning paths for trucks accessing the receiving area and for trucks accessing the loading dock in the south-eastern corner of the bulky goods outlet. He showed two diagrams for trucks accessing the receiving area, one for trucks on the left hand side (closer to the supermarket) and a second diagram for trucks on the right hand side (closer to the bulky goods outlet). For both sides, he described the receiving area as “Supermarket loading area”. By contrast, he showed two diagrams for trucks accessing the loading dock in the south-eastern corner of the bulky goods outlet and in both cases described that loading area as “Bulky Goods loading area”. I infer that Mr Weaver had been instructed by Saints that the receiving area was the supermarket’s loading area and this in turn was passed onto the Council.
Conclusion
The receiving area should have been included in the calculation of gross leasable area for the purpose of principles 25 and 35.
Pad site
Parabanks invites me to find that the pad site was a fast food operation such as McDonalds, Hungry Jacks or Kentucky Fried Chicken and that such a fast food outlet is a relevant shop and is not excluded as a restaurant because it is not used primarily for the consumption of meals on the site.
The defendants contend that the pad site is not demonstrated to have been a fast food outlet, it is unproven that fast food outlets are not used primarily for the consumption of meals on the site and, in any event, the designation of the pad site as “restaurant” on the April and November 2012 plans is conclusive.
The defendants contend in the further alternative that the pad site was validly deleted from the application and was not the subject of the development plan consent granted by the Council on 20 December 2012.
Fast food outlet
I am satisfied that on the face of the plans the pad site was a fast food outlet. First, it is located separately from the main buildings comprising the supermarket, specialty shops and the bulky goods outlet. Secondly, it is located very close to the corner of Main North Road and Saints Road. Thirdly, it has a one‑way road dedicated to passing around the perimeter of the building. This is distinctive of fast food outlets and uncharacteristic of restaurants. Fourthly, the pad site is located within the Car Parking Policy Area and it is unlikely that Saints would ever have contemplated that a mainstream restaurant would be approved within the middle of the Car Park Policy Area. Fifthly, leaving aside the label “restaurant” of the pad site on the April and November 2012 versions of the plans, in a negative sense there is an absence of anything shown on the drawings to suggest that the pad site is not a fast food outlet.
The fact that the label “restaurant” was applied to the subsequent April and November 2012 plans does not demonstrate that the pad site is not a fast food outlet. In this respect, the location of the pad site on those plans differs from the original March 2012 version in that it is closer to Saints Road than Main North Road, it is given what appears to be its own dedicated car park and the perimeter road around it is even more characteristic of a fast food outlet.
I have made the finding that the pad site was a fast food outlet on the face of the plans. If I have regard to the other evidence adduced in the case, my conclusion is fortified. In Mr Weaver’s report dated 24 May 2012, which was provided by Saints to the Council, he described the pad site as “a fast food outlet … most likely to be operated as McDonalds’ franchise”, showed it as “fast food” in his table of parking demands and described it as “Fast Food Outlet” in his analysis of Food/Takeaway Parking Demand. In his second report dated 30 November 2012, he described it as “the proposed McDonalds’ franchise”. Infra Plan’s report dated 20 June 2012 described it as “the new fast food takeaway unit”. Mr Sproule himself described it as a “future fast food restaurant”. All of this evidence confirms that the pad site was a fast food outlet. There is no evidence to suggest that it was not a fast food outlet.
Restaurant
The next issue is whether a fast food outlet such as McDonalds is primarily for the consumption of meals on site or primarily for takeaway meals.
I can take judicial notice of facts which are notorious or universal knowledge amongst the community.[13] It is universally known that fast food outlets such as McDonalds and Hungry Jacks supply a substantial majority of meals for takeaway purposes (either walk in or drive in) as opposed to consumption at tables on site. I find that the pad site was not a restaurant within the meaning of the definition in the Regulations.
[13] Holland v Jones (1917) 23 CLR 149 at 153 per Isaacs J (with whom Barton ACJ agreed); Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196 per Dixon J.
If I am unable to take judicial notice that fast food outlets supply the majority of meals for takeaway purposes, I would make the same finding based upon the evidence. In his first report dated 24 May 2012, Mr Weaver estimated total pm peak hour traffic movements for the pad site (ie McDonalds) at 150 trips. This was almost three times the number of trips which he estimated for the total of the eight restaurants inside the main building, namely 54 trips. The area of those eight restaurants was 904 square metres, which was more than double the size of the building on the pad site at 365 square metres. Mr Weaver estimated the number of trips associated with the pad site at approximately seven times the number of trips per square metre for the eight restaurants. Even allowing for the fact that the turnaround time of patrons eating at a fast food outlet would be faster than at restaurants, Mr Weaver’s estimates are premised upon significantly greater takeaway patrons than dine in patrons at the fast food outlet.
In Infra Plan’s report dated 20 June 2012, the pad site was referred to as “the new fast food takeaway unit”. In Mr Sproule’s checklist dated 13 December 2012, he observed that the proposed pad site was located within the Car Parking Policy Area and:
Fast food restaurants are typically found in these locations at the intersection of two main roads where they gain from the exposure to passing motorists.
Mr Sproule’s comment proceeds on the basis that fast food restaurants located in car parks are predominantly for takeaway food purchased by motorists. In addition, it is unlikely that either Saints or the Council would ever have contemplated approval of anything but a predominantly takeaway food outlet in the Car Parking Policy Area.
Conclusiveness of label as “restaurant”
I reject the defendants’ contention that the later endorsement on the April and November 2012 plans of the pad site as “restaurant” is conclusive. On the basis of the evidence described above, the pad site was, to the knowledge of Council, clearly intended to be a fast food outlet. Merely labelling it “restaurant” does not entail that it must be characterised as a restaurant within the meaning of the definition of that term in the Regulations for the purpose of principle 25. Principle 25 addresses realities and not fictions.
The defendants make the further contention that, because the November 2012 plans stamped “approved” by the Council show the pad site as a “restaurant”, Saints is in any event precluded by the terms of the development consent from using it other than as a restaurant and it follows that this area should not be included in the relevant calculation of gross leasable area. Even if the major premise of this contention were accepted, the conclusion does not follow. On the above findings, the application was for approval of a fast food outlet which is not as a matter of law a restaurant within the meaning of the definition of that term in the Regulations for the purpose of Principle 25. Assuming that the pad site was included in the approval, it was approved on the basis that it was proposed to be a fast food outlet.
Deletion of the pad site
The defendants contend, and Parabanks denies, that the pad site was, in any event, validly deleted from the application and was not the subject of the development plan consent granted by the Council on 20 December 2012. This issue intersects with Parabanks’ third substantive ground of invalidity. I defer consideration of this issue until I reach that third ground.[14]
Conclusion
[14] Commencing at [127] below.
The pad site should have been included in the calculation of gross leasable area for the purposes of principles 25 and 35.
Personal services establishments, restaurants and bulky goods outlet
Parabanks contends that the areas within the main building designated “personal services” and “restaurant” and the area within the second building described as “bulky goods outlet” fell within the definition of shop and were not excluded as personal service establishments or restaurants or bulky goods outlets under principles 25 and 35.
Parabanks’ first contention is that the onus of proof lies upon the defendants to prove that those areas were truly intended to be and would become personal service establishments, restaurants or bulky goods outlets respectively and that the defendants failed to discharge that onus. I reject that contention for the reasons given at [70] above.
Parabanks’ second contention is that the areas of the two tenancies K5 and K6 of 37 square metres and 30 square metres respectively are so small that it is not feasible that they could be restaurants within the meaning of the Regulation definition as being primarily for the consumption of meals on site. I accept that contention. It is not tenable that tenancies of such a small size could constitute restaurants. All of the other tenancies designated as “restaurants” exceed 100 square metres in area. Moreover, K5 and K6 are located in the middle of the arcade in an area typically devoted to takeaway type kiosks and uncharacteristic of restaurants. My conclusion is fortified by the evidence of Mr Brisbane summarised in the last dot point at [111] below.
Parabanks’ third contention is that it was insufficient for Saints merely to label a tenancy as “personal services establishment”, “restaurant” or “bulky goods outlet”. The Council should have requested that Saints label specific tenancies with specific types of personal service establishments (eg hairdresser, nail salon, etc) or specific types of restaurant or a specific type of bulky goods outlet with details of the nature of the operation in each case.
I reject Parabanks’ third contention. In one sense, it is a repetition of the first contention which I have already rejected. Given that the development would not be tenanted for some years after development plan consent were granted, there is no reason to expect that Saints would know at the time of application which types of personal service establishment would move into which tenancies. It is common ground that, if Saints had designated specific types of personal service establishments for specific tenancies, specific types of restaurant for specific tenancies and a specific type of bulky goods outlet for the smaller building and development approval had been granted, it would have been precluded from changing the use of any of those tenancies without lodging a fresh development application. It is also common ground that, development approval having been granted in respect of the plans as shown, Saints cannot use any of the tenancies designated as personal service establishments for any purpose other than within the meaning of that term in the Regulations (and the same applies to tenancies designated “restaurants” or the “bulky goods outlet”).[15]
[15] Development Act 1993 (SA) s 44(3) and (4).
Parabanks makes a further submission that it was insufficient even for Saints to designate a particular tenancy as, say, hairdresser. It was necessary that there be a specific hairdressing tenant contemplated or at least reasonable grounds to believe that such a tenant would be attracted. This is an extension of the third contention which I have already rejected.

Parabanks’ fourth contention is that it was Saints’ intention to use the bulky goods outlet building as a Dan Murphy’s outlet and that this would comprise a shop which is not a bulky goods outlet. Parabanks contends that the retail sale of liquor comes within the scope of “foodstuffs” which is excluded as a bulky good in the definition of “bulky goods outlets”.
On 14 February 2013, there was an internal meeting of Saints’ personnel at which it was reported that Dan Murphy had expressed interest in leasing a free-standing development and contemplated that Dan Murphy might lease the bulky goods outlet. It was suggested that terms be agreed with Dan Murphy subject to planning approval whereby, at Dan Murphy’s cost, Dan Murphy would approach the Council and obtain the required consent. This post-dates the development plan consent granted in December 2012 and does not comprise evidence of Saints’ intentions as at 2012 when it made and pursued the first application. In any event, the document refers to a separate development approval being contemplated. This is evidence that Saints did not intend to use the bulky goods outlet as a Dan Murphy store unless separate development approval were obtained. I therefore reject Parabanks’ fourth contention.
Parabanks’ fifth contention is based upon evidence which it sought to adduce from an economist, Mr Brisbane. Mr Brisbane provided a report dated 25 March 2013 which he supplemented by an affidavit sworn on 21 May 2013. The defendants objected to the admission of the report and affidavit and I received them de bene esse. The essential grounds of the objection were that Mr Brisbane did not demonstrate expertise to express opinions beyond identified benchmarks for retail services, restaurants and general retail, did not set out his reasoning and did not set out clear conclusions.
Mr Brisbane made comparisons between the proposed development and comparative Australian, South Australian and northern Adelaide neighbourhood centres, in each case centred on a single supermarket. Mr Brisbane concluded that:
·the proposed development was significantly larger in total size and in area devoted to non-supermarket use, than comparative supermarket-based neighbourhood centres;
·the percentage of gross leasable area and number of tenancies devoted to personal services establishments (13% and 8 tenancies) was much higher than the Australia-wide benchmark (5% and 4 tenancies) and nearby centres in the northern Adelaide region (5% and 2 tenancies);
·the percentage of gross leasable area and number of tenancies devoted to restaurants (13% and 8 tenancies) was much higher than the Australia-wide benchmark (2-4% and 1-2 tenancies) and nearby centres in the northern Adelaide region (2% and 1 tenancy);
·the average size of a takeaway food tenancy is 50 to 60 square metres, whereas the average size of a restaurant is 100 to 120 square metres.
Based upon the benchmarks and his experience, Mr Brisbane then expressed the following opinions:
·the kiosks K5 and K6 (37 square metres and 30 square metres respectively) were unlikely to be large enough to accommodate restaurant tenancies;
·the four tenancies shown as “restaurants” at the entrance to the shopping centre were unlikely to all be restaurants and more likely to comprise a mix of takeaway food, services and possibly one restaurant;
·it will be difficult for Saints to achieve 8 restaurant operators and 8 personal services operators in the shopping centre.
The defendants do not challenge Mr Brisbane’s evidence about benchmarks in northern Adelaide, South Australia or Australia-wide. They do challenge the admissibility of his conclusions in expressing the opinions summarised in the previous paragraph.
I rule that Mr Brisbane’s report and affidavit are admissible. He provides sufficient information to demonstrate expertise to express the opinions which he does. His conclusions are sufficiently clearly set out. His reasoning leading from his assumptions and knowledge of the facts to his conclusions is sufficiently disclosed.
However, the opinions expressed by Mr Brisbane concerning the feasibility of operating the shopping centre with eight restaurant tenants and eight personal services tenants are of limited weight. The mere fact that it will be difficult for Saints to achieve those numbers of tenants does not in itself prove that they will not be achieved. The mere fact that Mr Brisbane expresses the opinion that the four tenancies shown as restaurants at the entrance to the shopping centre are more likely to comprise a mix of takeaway food, services and one restaurant does not prove that they will not all be restaurants.
Parabanks’ fifth contention is effectively that it is not economically viable for Saints to attract eight personal services tenants and eight restaurant tenants, that I should infer from this that Saints’ true intention was to attract retail tenants (clothing, footwear, foodstuffs and personal effects goods) and that I should treat the proposed development on that basis for the purpose of determining the gross leasable area of relevant shops. Parabanks has not laid a sufficient evidential foundation for me to draw any of those conclusions. On the face of the first application and first approval, Saints will be confined to personal services tenants, restaurant tenants and bulky good outlet tenants as marked on the plans. I am not persuaded by Mr Brisbane’s report and affidavit that Saints will be unable to achieve that tenancy mix. If it transpires that Saints cannot achieve that tenancy mix, it will be precluded from using the areas designated personal services establishment or restaurants or bulky goods outlet for the purpose of the retail sale of goods. I reject Parabanks’ fifth contention.
The areas shown as personal services establishments, restaurants and bulky goods outlet were rightly not included in the calculation of gross feasible area of relevant shops.
Principle 35
Principle 35 of the Neighbourhood Centre Zone Section of the Development Plan is set out at [20] above.
Parabanks contends that principle 35 refers to the entire building comprising a shop or group of shops, such that the entire area of the building is to be calculated even if part of the building is dedicated to retail showrooms, bulky goods outlets, restaurants or personal service establishments.
I reject Parabanks’ contention. It is the clear intent of principles 25 and 35 that there is a cap on the total area of all relevant shops within the Saints Road, Salisbury Plain Neighbourhood Centre Zone. It does not matter how those shops are disposed. They might be contained in separate buildings or all in the same building. Attention is directed to the specific shop rather than to the building.
Conclusion
The gross leasable area of relevant shops the subject of the first application exceeded 5,500 square metres. The receiving area and the pad site area constituted part of the gross leasable area for the purposes of the calculation. The proposed development was non‑complying under Principle 35. The Council had no power in the circumstances to grant development plan consent.
In view of my conclusion based on the receiving area, it is not strictly necessary to decide the other contentions going to the validity of the first approval. However, I do so on the assumption that, contrary to my conclusion, the receiving area should not to be included in calculating the gross leasable area.
Obligation of the Council to seek details of proposed tenancies
Parabanks contends that the Council was under a duty to determine the jurisdictional facts which enlivened its power to grant development plan consent on probative material.[16]
[16] Television Capricornia v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514 per Wilcox J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ.
Parabanks contends that the Council had a duty to enquire of Saints about the activities proposed to be undertaken in each of the tenancies designated “restaurant”, “personal services” and “bulky goods outlet”. The Council failed to obtain from Saints any probative material capable of supporting a finding that these tenancies did in fact constitute restaurants, personal services establishments and a bulky goods outlet within the meaning of principles 25 and 35.
I reject Parabanks’ contention. This is essentially for the same reasons as at [105]-[107] above. Leaving aside the proposed tenancies K5 and K6 – which on their face were too small to be restaurants – and the pad site – which on its face was a fast food outlet – the Council was entitled to accept the designations at face value. The Council had no obligation to make further inquires about specific types of personal services establishments or restaurants or bulky goods outlets proposed or about specific tenants. It is unlikely that such information could have been provided in any event given the lead time between application for approval and completion of construction.
Parabanks also contends that the Council was under a duty to seek and obtain probative material capable of supporting a finding that the matter of the application was a “proposed development” as distinct from a hypothetical development. I reject that contention for similar reasons to those given at [173]-[178].
Variation by deletion of pad site
Some time before 13 December 2012, someone on behalf of Saints communicated to someone at the Council that Saints deleted the pad site from the application for development approval. I find on the balance of probabilities that this occurred between 8 November 2012 (when the November 2012 plans were revised and still showed the pad site) and 13 December 2012.
The communication by Saints to the Council was verbal and not confirmed or recorded in writing. There is no record of the date on which the communication took place or the parties to the communication. There is no record of the Council’s response to the communication. The only evidence of the communication is second hand evidence contained in an email dated 21 February 2013 from the solicitor for the Council to the solicitor for Parabanks:
We are instructed that the “pad site” restaurant was deleted from the application at the request of the applicant in response to a council request for further details & elevations. We understand that as a tenant for that site had not been secured (& therefore there was at that time no specific restaurant design) that the applicant chose to delete it from the current application & requested that the Council place a note on any DNF to that effect. We are instructed that this was effected by phone conversation & that there are no relevant documents in this regard.
When Mr Sproule issued the decision notification form dated 20 December 2012, the November 2012 plans were stamped as “approved”. Those plans showed the pad site. The decision notification form contained 19 conditions and was signed by Mr Sproule. Condition 1 required the proposal to be developed in accordance with the Council stamped approved plans. There was attached to the decision notification from a separate page titled “Advices”. The third matter the subject of the Advices was that the pad site was not part of the application and required a separate development application.
Relevance of the pad site deletion issue
It is in issue between the parties whether the pad site was validly deleted from the application and whether it was the subject of the Council’s development plan consent. These issues arise in two quite different ways and in two quite different contexts.
First, as observed at [90] above, on the assumption (as I have found) that the pad site shown in the April 2002 plans was properly characterised as food stuff retail and hence to be included in the calculation of the gross leasable area, the defendants raise by way of answer[17] a contention that the application was validly varied to delete the pad site and the Council’s development plan consent approved the development without the pad site.
[17] While these matters are raised by the defendants by way of answer, the onus of proof and the burden of persuasion lies upon Parabanks in relation to these issues in accordance with the approach identified at [64] above.
Secondly, Parabanks raises as an independent ground of invalidity of the development plan consent that there was no valid variation to the application so as to delete the pad site. Parabanks contends that, even if it fails on its first ground that the development plan consent was invalid because the gross leasable area exceeded the cap, the consent was invalid because there was no valid variation to delete the pad site from the application.
In those two different contexts, the following issues arise:
1. whether there was a valid variation to the development application to delete the pad site; and
2.if yes, did the development plan consent encompass the pad site?
Invalid variation
Parabanks contends that there was no valid variation to the development application insofar as it included the pad site. Parabanks puts this contention in three alternative ways:
1.there was no valid application by Saints to vary because the application must define the nature and extent of the proposed variation;
2.there was no permission granted by the Council to vary the application, or alternatively any such permission was not valid because it must be define the nature and scope of the variation;
3.the Council did not have power to permit a variation because it would have changed the essential nature of the proposed development.
The defendants take issue with each contention. They accept that, if the contentions are made out, the Council lacked power to grant development plan consent.
Valid application for permission to vary
Section 39(4)(a) of the Act provides:
Application and provision of information
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).
Section 39(5) provides that the relevant authority may grant such permission unconditionally or subject to such conditions as it thinks fit.
Regulation 20 provides:
Amended applications
(1) If a relevant authority permits an applicant to vary an application under section 39(4) of the Act, the date of receipt of the application as so varied (together with any amended plans, drawings, specifications or other documents or information, and appropriate fee) will, for the purposes of the time limits prescribed in Part 8, be taken to be the date of receipt of the application.
(2) However, subregulation (1) does not apply if the relevant authority is of the opinion that the variations to the application are not substantial.
...
(4) 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 Part 6.
(5) 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.
There was no formal application by Saints to vary its application. There was no document evidencing an application. The only evidence that there was such an application is contained in the email from the Council’s solicitor to Parabanks’ solicitor dated 21 February 2013 quoted at [128] above.
Saints did not submit to the Council any revised plans showing any changes to the north‑east corner of the plans. Saints did not submit plans which identified, or identify by any other means, what was deleted from the application and in particular whether it incorporated the perimeter road around the building or the 18 carpark spaces adjacent to the building or just the building itself. Saints did not identify what was proposed on the area shown on the plans as occupied by the pad site (whether confined to the building or encompassing also the perimeter road and 18 carparking spaces). Saints did not show whether the floor of the area the subject of the deletion was proposed to be bitumen, concrete, bare earth, vegetation, carparking or otherwise.
There was no definition of the nature and scope of the variation, or of the proposed development as varied. Without such definition, it was impossible for the Council to grant permission for the variation and impossible for the Council to grant development plan consent in respect of the varied proposed development because it was uncertain what development was proposed for the north‑eastern corner of the Land.
The application for development approval encompassed two forms of “development”, namely building work and a change in the use of land.[18] The statement simpliciter that the pad site was deleted from the application left a vacuum as to what was the proposed use of the land upon which the pad site had been proposed.
[18] Definition of “development” in Development Act 1993 (SA) s 4(1).
Section 39(4)(a) empowers a relevant authority to permit a variation of an application and/or plans and drawings accompanying the application. In some cases, it is possible to vary an application without affecting the plans and drawings accompanying the application. For example, if approval is sought for a temporary use for, say, 12 months, a variation to six months would not entail any change to the plans and drawings. In the present case, deletion of the pad site necessarily entailed a variation of the plans and drawings under section 39(4)(a)(ii). The consequences of the variation were important because they would dictate the subject matter of any ultimate approval by the relevant authority. It was therefore important that there be a proper and definite application to vary which was capable of forming the subject matter of permission to vary under section 39(4)(a) and in due course the grant of approval to the varied application.
There was no valid application to vary as required by section 39 of the Act.
Grant of permission to vary
Parabanks contends that there was no grant of permission to vary the application.
If there was an application to vary to delete the pad site, it was inherently vague for the reasons given at [140]-[142] above. There was no definition of the scope of what was to be deleted or what was to replace the deleted pad site. In a practical sense, there was no adequate definition of the proposed variation in respect of which permission was capable of being given by the Council.
Section 39(4) of the Act requires the Council to turn its mind specifically to whether the variation should be permitted and in doing so to consider whether the essential nature of the proposed development is not changed, whether permission should be granted subject to conditions and whether the amended application should be re-notified and re-referred.
Under regulation 20(4), the Council was required to repeat the giving of notice under Part 6 unless it formed the opinion that the variations were not substantial. Objectively assessed, a variation to delete the pad site was plainly substantial (even if it did not change the essential nature of the proposed development). In the circumstances, the Council was required to give fresh notice of the application under Part 6. At the very least, the Council was required to turn its mind to the question whether the variation was substantial and should be re‑notified.

In support of its contentions, Parabanks tendered the report and the affidavit of Mr Brisbane referred to at [110] above. Parabanks contends that Mr Brisbane’s evidence demonstrates that Saints is unlikely to be able to attract eight personal establishment tenants and eight restaurants. Even if I were to find on the balance of probabilities that it is unlikely that Saints will attract more than, say, four personal services establishment tenants and four restaurant tenants, this would not render the application “hypothetical” and, in any event, would not result in the proposal not being a “proposed development” within the meaning of the Act.
Parabanks also contends that, because there is an existing lease of lot 7 to Woolworths Limited which does not expire until 2016 and construction of the shopping centre would require Woolworths to surrender its lease, the development was not sufficiently certain to be a “proposed development”. I reject that contention. The Council was entitled to proceed on the basis that Saints would obtain a surrender by Woolworths so as to permit demolition of the building.
Validity of delegations
The development plan consent dated 20 December 2012 granted by Mr Sproule was made under a delegation by the Council to the chief executive officer dated 24 October 2011 and a sub‑delegation by the chief executive officer to the development officer, planning, dated 15 October 2012.
Parabanks contends that the delegation to the chief executive officer dated 24 October 2011 was invalid because the Council simultaneously delegated identical functions to the chief executive officer and the Development Assessment Panel in contravention of section 34(23) and (24) of the Act.
Section 34(23) of the Act provides:
A council must delegate its powers and functions as a relevant authority with respect to determining whether or not to grant development plan consent under this Act to—
(a) its council development assessment panel; or
(b)a person for the time being occupying a particular office or position (but not including a person who is a member of the council); or
(c)a regional development assessment panel (if such a delegation is consistent with the extent to which the panel may act under the provisions of the regulations constituting the panel and in addition to the operation of subsection (1)(ab)).
Section 34(24)(c) and (d) provides:
but a Council cannot at any time—
(c) act in its own right in a matter that is subject to delegation under that subsection; or
(d) give a direction with respect to the exercise or performance of a power or function under the delegation.
A reading of subsections 34(23) and (24) together discloses that the purpose of section 34(23) is to prevent elected Council members from making the determination whether development plan consent should be granted. Presumably this is to avoid the politicising of determinations and to make them independent of influence from ratepayers on Council members.
Parabanks contends that, by the use of the disjunctive word “or” between the paragraphs of subsection 34(23), the Council is precluded from making simultaneous delegations to its Development Assessment Panel under paragraph (a) and its chief executive officer under paragraph (b).
Section 34(24) (a) and (b) provides:
A Council may, in connection with the operation of subsection (23)—
(a) make a series of delegations according to classes of development; and
(b) vary any delegation from time to time,
Section 34(26) provides:
A power or function delegated under subsection (23) may be further delegated (and any such further delegation may be made subject to specified conditions and limitations, is revocable at will and will not derogate from the power of the panel or person making the delegation to act in any matter).
When used between legislative provisions, the word “or” is capable of meaning “one or the other but not both” or of meaning “one or the other or both”.[27] It is a matter of construction as to which is the proper meaning.
[27] Ormerod v Blaslov (1989) 52 SASR 263 at 269-272 per O’Loughlin J; Commissioner of Taxation v Industrial Equity (2000) 98 FCR 573 at [19] per Hill, Heerey and Hely JJ.
It is notable that section 34(23)(b) permits a delegation to any person holding any office or position in the Council (other than a member of the Council). The Act is not concerned to ensure that the determination to grant development plan consent is necessarily made at any particular level. This is reinforced by the fact that section 34(26) permits a sub-delegation. This consideration makes it less likely that the intention is to preclude simultaneous delegations to the Development Assessment Panel and a particular office holder of the Council.
Section 34(24) permits a series of delegations according to classes of development. Parabanks accepts that there can be a delegation to the Development Assessment Panel in respect of one class of development and to an office holder in respect of a different class of development. However, if such delegations are permitted, there is no obvious reason to confine them to different classes of development. This is particularly so as section 34(24) does not constrain the Council’s selection of the different classes of development.
Parabanks contends that simultaneous delegations in respect of the same classes of development or in respect of all classes of development would lead to uncertainty in the administration of the Act. There would be no way of knowing whether a given development application was to be decided by the Development Assessment Panel or the chief executive officer and no mechanism for distributing applications amongst potential decision makers. There would also be the possibility of conflicting decisions.
There is no reason why the Council could not leave it to any of the delegates to decide whether they would exercise the delegation in respect of a particular application or refer it to another delegate. There is no reason why the Council could not leave it to the discretion of one person such as the chief executive officer to decide which delegate deals with a particular application. The coexistence of simultaneous delegations does not lead to a possibility of conflicting decisions: once a delegate has exercised the power, it is spent.
The existence of section 34(26) permitting sub‑delegations suggests that there is no legislative policy precluding multiple simultaneous primary delegations because the grant of multiple sub‑delegations would simply side step such a policy.
In Ormerod v Blaslov,[28] the Fisheries Act 1982 (SA) empowered the Minister to delegate to “the director or any other officer of the Public Service”. O’Loughlin J held that, on its proper construction, this provision permitted simultaneous delegations to the director and to several officers of the Public Service.[29]
[28] (1989) 52 SASR 263.
[29] (1989) 52 SASR 263 at 269-272.
I conclude that simultaneous delegations are permissible under section 34(23). It follows that the grant of development plan consent by Mr Sproule was not invalid by reason of invalidity of the delegation to the chief executive officer impacting the sub‑delegation to Mr Sproule.
Regulated trees
Unbeknown to the Council when it assessed the application for and granted development plan consent in 2012, there were three regulated trees within the footprint of the proposed buildings which would need to be removed before construction.
Development approval is required for the removal of a regulated tree because “tree damaging activity” is defined by section 4 of the Act to be a species of “development” and removal of a tree is defined to be a species of tree damaging activity.
Parabanks contends that the development application was void because it failed to include an essential aspect of the proposed development, namely the removal of the regulated trees.
Parabanks makes the following alternative contentions:
1.Saints’ first application was invalid because it failed to include an essential aspect of the proposed development, namely the removal of the three regulated trees;
2.the development plan consent dated 20 December 2012 was invalid because the Council failed to determine the nature of the development under regulation 16 of the Regulations as encompassing removal of three regulated trees which was a prerequisite to construction of the proposed buildings; and
3.the Council failed to have regard to a relevant consideration, namely that the construction of the proposed shopping centre required the removal of three regulated trees and this in turn required development approval under the Development Plan.
Validity of application
Parabanks cites as authority for the proposition that an application for development approval is invalid if it fails to include an essential aspect such as the removal of regulated trees the decision of the Full Court in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd.[30] I address that decision at [202] below. The decision of the Full Court is not authority for the proposition advanced by Parabanks.
[30] [2001] SASC 409; (2001) 80 SASR 435.
I find that Saints was unaware of the existence of the regulated trees in April 2012 when it made its application for development approval. The omission to include the removal of the trees did not render the application invalid. The consequence was that, unless Saints obtained development approval to remove the trees, it could not lawfully commence construction of the shopping centre. That is a different matter.
Validity of approval
Parabanks contends that the development plan consent granted by the Council was invalid because it failed to correctly determine the nature of the development pursuant to regulation 16 of the Regulations. Regulation 16(1) provides:
If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
In Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd,[31] the relevant development plan provided that use of land as a landfill proposing to receive 20,000 tonnes or greater volume of waste per annum was a non‑complying development. Four related companies lodged separate development applications seeking development approval to receive 19,500 tonnes of waste per annum for four adjoining pieces of land, each over a three month period in the year. If granted, collectively the four companies could have received 78,000 tonnes of waste per annum. The Full Court held that this was a single proposed development which was non‑complying. In the course of his reasons, Bleby J (Doyle CJ and Lander J agreeing) said that it was essential for the planning authority to determine the nature of the development in order to properly characterise and to classify it.[32]
[31] (2001) 80 SASR 435.
[32] (2001) 80 SASR 435 at [28]-[30].
I find that in December 2012, when it granted Development Plan consent, the Council was unaware of the existence of the regulated trees. If it had been aware, it ought to have determined that the nature of the development encompassed removal of regulated trees. However, its failure to do so in ignorance of the existence of the regulated trees does not render the grant of development plan consent invalid. Saints could not commence construction of the shopping centre unless it obtained development approval to remove the regulated trees, but that is a different matter. The decision of the Full Court in Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd is not authority for the proposition advanced by Parabanks.
Refer to a relevant consideration
Parabanks contends that, in granting the development plan consent, the Council failed to have regard to a relevant consideration, namely the fact that removal of the regulated trees was a precondition to the development for which application was made.
If the grant of development plan consent had automatically authorised Saints to remove the regulated trees, it might well be contended that the Council failed to have regard to a relevant consideration. However, it had no such effect. Saints could not remove the regulated trees unless it obtained development approval to do so. In those circumstances, there was no failure to have regard to a relevant consideration of the type which vitiates a decision.
The 17 January 2013 development plan consent
Parabanks contends that the development plan consent purportedly granted by Mr Taylor on 17 January 2013, bearing the date 20 December 2012, was void because the Council’s power to deal with the application for development plan consent had been exhausted by the decision made by Mr Sproule on 20 December 2010.
On 20 December 2010, Mr Sproule, under a sub‑delegation from the chief executive officer, granted development plan consent in respect of the application and imposed 19 conditions.
On 8 January 2013, Saints wrote to the Council requesting deletion of conditions 12 and 13.
On 17 January 2013, Mr Taylor purported to grant development plan consent in respect of the same development application, imposing 17 conditions (omitting conditions 12 and 13 from the 20 December 2012 development plan consent decision notification form signed by Mr Sproule).
Parabanks contends that, once Mr Sproule determined the application for development plan consent on 20 December 2012, the power of the Council to grant development plan consent was spent and was not capable of being exercised again. I accept that contention. A determination under section 33 of the Act can only be made once. For example, if the Council refused development plan consent, it could not subsequently grant consent and vice versa.
The defendants contend that Mr Taylor was exercising the power of variation conferred by section 39(6) of the Act. That subsection provides:
Subject to this section, a person may seek the variation of a development authorisation previously given under this Act (including by seeking the variation of a condition imposed with respect to the development authorisation).
Subsection 39(6) expressly contemplates the variation of a development authorisation by way of variation of a condition imposed, which encompasses deletion of a condition. On 8 January 2013, Saints sought such a variation.
However, Mr Taylor did not purport to vary the development authorisation granted on 20 December 2012. The power conferred by section 39(6) was only to vary the development authorisation. It was not a power to make a fresh decision on the original application for development authorisation. The decision notification form signed by Mr Taylor purported to be a fresh decision made on 20 December 2012, which he did not have power to do.
The purported grant of fresh development plan consent on 17 January 2013 by Mr Taylor was invalid.
Validity of development plan consent
The development plan consent purportedly granted on 20 December 2012 by Mr Sproule was void and of no effect. The Council had no jurisdiction itself to determine the development plan consent because the gross leasable area of shops (excluding bulky goods outlets, retail showrooms, personal service establishments and restaurants) exceeded 5,500 square metres. The proposed development was non‑complying and Category 3. Concurrence by the Development Assessment Commission was required for any grant of development plan consent, as was public notification appropriate to Category 3.
The gross leasable area of the relevant shops exceeded 5,500 square metres because the receiving area was required to be included.
In any event, there was no valid variation of the application to remove the pad site from the application for development plan consent.
The purported development plan consent granted by Mr Taylor on 17 January 2013 was in any event void because the Council’s power to determine the application had been spent.
The grounds of challenge based upon hypothetical development, failure to seek details, simultaneous delegations and regulated trees fail.
Exercise of discretion
The relief sought by Parabanks is declaratory and prerogative relief. It is common ground that this relief is discretionary.[33]
[33] Bade v Rural City of Murray Bridge [2008] SASC 189; (2008) SASR 302 at [96] per Bleby J (Doyle CJ and Anderson J agreeing).
Conceptually, there are various reasons why discretion might be exercised not to grant relief. One reason is a lack of utility. On the assumption that Parabanks were to fail in its challenge to the second development plan consent granted in August 2013, it is not suggested that there is a lack of utility in granting relief in respect of the first development plan consent. The subject matter of the two consents is different.
Another reason for exercising a discretion not to grant relief is where the developer has reasonably acted on the basis of the consent and would suffer substantial detriment if the consent were to be quashed. It is not suggested that this applies in the present case. Saints has not proceeded to construct the shopping centre and indeed has made a second application against the possibility that the first consent might be quashed.
Another reason why the discretion might be exercised is delay by a plaintiff in issuing judicial review proceedings. The defendants contend that I should exercise my discretion not to grant prerogative relief due to delay by Parabanks in challenging the Council’s original characterisation and classification decisions in or after July 2012.
It is appropriate to exercise my discretion to quash the first approval. The Council had no jurisdiction to grant development plan consent and it would be inappropriate to so decide but then decline to quash the development plan consent. In assessing the effect of any delay, it is important to consider any prejudice which might be suffered by a developer as a result of delay. In the present case, it is not suggested that Saints acted to its detriment by proceeding with construction due to delay by Parabanks.[34]
[34] Contrast Bade v Rural City of Murray Bridge (2008) 101 SASR 302 at [96]-[114] per Bleby J (Doyle CJ and Anderson J agreeing) finding that there was such prejudice due to delay but that it was not a reason to exercise the discretion against granting relief.
Parabanks was not obliged to institute proceedings to challenge the Council’s categorisation/classification decisions made on 30 April 2012. There was nothing to prevent Parabanks waiting to see whether the Council ultimately approved the application and then bringing judicial review proceedings in respect of the approval. While Parabanks can be justifiably criticised for asserting that the gross floor area of the relevant shops exceeded 5,500 without disclosing the basis of its contention, its failure to do so does not afford good ground to refuse to exercise my discretion.
The time for Parabanks to institute judicial review proceedings under rule 200(2) of the Supreme Court Civil Rules 2006 (SA) only commenced to run on 20 December 2012 when the Council granted development approval. The proceedings were instituted on 8 March 2013 within the six month period specified by rule 200(2). Rule 200(2) requires an action for judicial review to be commenced as soon as practicable and the Court may exercise discretion to deny relief because of undue delay even when proceedings are brought within the period of six months.[35] However, it is not seriously suggested by the defendants that there was undue delay in the institution of the action after 20 December 2012 and I do not consider that there was any such undue delay.
[35] Ex parteSavage and Savage [1989] WAR 46 at 52 per Nicholson J.
The defendants also contend that I should exercise my discretion not to grant prerogative relief because Parabanks’ contentions concerning the receiving area and the pad site are technical. I reject that contention. Whether Parabanks’ contention be regarded as technical or not, the Council had no jurisdiction to grant development plan consent and it would be inappropriate to so decide but then decline to quash the development plan consent.

Accordingly, I quash the development plan consents conveyed by the decision notification forms dated 20 December 2012 signed by Mr Sproule and Mr Taylor.
Second development application
The questions which arise in relation to the second development application are:
1.Did the gross leasable area of relevant shops exceed the cap of 5,500 square metres and in particular;
(a)    should an area adjacent to the supermarket at basement level designated “shared receiving area” be included in the calculations?
(b)    should an area at the basement level designated “common plant” room (“the plant room”) be included in the calculations?
(c)    should the area at the level of the ground floor occupied by the supermarket’s two goods lifts and stairs be included in the calculations?
(d)    should tenancies shown as “personal services”, “restaurants” or “bulky goods outlet” be included in the calculations?
2.Alternatively, was the Council obliged in the circumstances to make further inquiries into those issues before classifying and characterising the application and before granting development plan consent?
3.Was the application invalid on the basis that it was hypothetical?
Gross leasable area
When Saints lodged the development application on 21 May 2013, it attached a planning statement showing a calculation said to have been made by Fyfe Surveyors of the area of the proposed supermarket, 14 retail shops, the supermarket’s two goods lifts and stairs at basement level totalling 5,336.6 square metres. All parties accept that figure as the total area for the purposes of the calculation of gross leasable area of those 18 areas.
However, Parabanks contends that the following additional areas are also relevant shops within the meaning of the definition of gross leasable area and should be included in the calculation:
1.part of the area labelled “common plant room which was previously labelled “supermarket plant room” comprising 154.5 square metres;
2.the shared receiving area comprising 101.3 square metres;
3.the two goods lifts and stairs at ground level (in addition to the basement level already counted) comprising an additional 48.6 square metres;
4.the areas designated “personal services”, “restaurant” and “bulky goods outlet”.
Plant room
The drawing DA-07 in the May 2013 plans lodged with the second application showed a common plant room at the southern end of the basement level. The western half was 9 metres deep and the eastern half was 4.8 metres deep.
The equivalent drawing DA-07 contained in the November 2012 plans the subject of the first development plan consent showed two separate plant rooms in the same location. There was a general plant room 9 metres deep on the western side and a “supermarket plant” room 4.8 metres deep on the eastern side. The two plant rooms were separated by a trolley lift and a set of stairs.
Parabanks contends that the apparent creation of a single common plant room encompassing what was formerly two separate plant rooms as shown on the November 2012 plan was effectively a sham and that the true intent was to dedicate the eastern half of what is now designated “common plant room” to the supermarket.
On 21 June 2013, Mr Taylor on behalf of the Council wrote to the planners for Saints. Enclosed was a copy of a letter from Parabanks’ solicitors dated 13 June 2013 demanding that the Council require information from Saints including the nature and dimensions of the plant and equipment to be used as part of the proposed supermarket operations, and a description of where that plant will be located in the current development application plans. The Council invited but did not require Saints to provide that information.
On 11 July 2013, the solicitors for Saints responded to Mr Taylor’s letter. In relation to the common plant room, the letter included the following passages:
The precise dimension of all items of plant and equipment are not known and are irrelevant as is the precise location of that equipment within the plant room.
The important matter is that the plant will be housed in a single room. The room will not be leased to any tenant and all tenants will have access to the room. Many items of plant and equipment including sprinkler controls, air filtration, generators, main switchboard and the building distributor will be single items of plants serving the whole building. The final design of the equipment to be housed in the common plant room will be determined by the engineers’ expert in fields such as electrical, hydraulic, mechanical, fire and the like.
...
The intent is that air conditioning plant, motors, compressors and any electrical transformer etc will be located in this common space. It is not intended that any part of the room will be dedicated exclusively to plant for any one tenancy. It is not intended that supermarket plant will be housed exclusively or even mainly in the area of the room which corresponds with the area marked “Supermarket plant” in the first application.
Parabanks did not adduce any positive evidence showing that Saints’ intentions in respect of the plant room are contrary to those shown on the revised drawing DA-07 or contrary to those set out in its solicitors’ letter dated 11 July 2013. Parabanks’ case is based solely on inviting me to draw the inference that the original intention for a dedicated supermarket and plant room has not changed and that the appearance of change is solely to give the false appearance that the total gross leasable area of relevant shops is less than 5,500 square metres.
I find on the balance of probabilities that the area designated “common plant room” was not dedicated to the supermarket and was intended to be laid out in the manner described by Saints’ solicitors on 11 July 2013. The area is a common tenancy area within the meaning of the definition of gross leasable area and is not to be counted in the gross leasable area of relevant shops. There is no basis to draw the inference which Parabanks invites me to draw.
Receiving area
Drawing DA-07 in the May 2013 plans lodged with the second development application showed changes to the receiving area shown on the previous version in the November 2012 plans the subject of the first development plan consent. The roof covering the area was greatly reduced to cover only the northern-most approximately 8 metres of the receiving area. The area was designated “shared receiving area” and roller doors were shown on the bulky goods outlet to provide access from the receiving area and also to provide access from the loading dock in the south eastern corner of the bulky goods outlet.
The result of the reduction in the roof was that the receiving area covered by the roof was reduced from 457 square metres to 101.3 square metres.
Parabanks contends that the designation “shared receiving area” and the roller door in the bulky goods outlet adjacent to it are effectively shams, that it was the intention of Saints to dedicate the receiving area exclusively to the use of the Foodland supermarket. Parabanks invites me to draw the inference that Saints’ intention that the receiving area be dedicated to the supermarket has not changed and that labelling it “shared” is purely to give the appearance that the total gross leasable area is less than 5,500 square metres.
Parabanks did not adduce any positive evidence showing that Saints’ intentions in respect of the plant room are contrary to those shown on the revised drawing DA-07.
I find on the balance of probabilities that the receiving area was now intended to be used in common by the supermarket and the bulky goods outlet. It is a shared tenancy area within the meaning of the definition of gross leasable area and is not to be included in the calculation of the gross leasable area of relevant shops. There is no basis to draw the inference which Parabanks invites me to draw.
Goods lifts and stairs
Parabanks contends that the horizontal area occupied by the supermarket’s two goods lifts and stairs is required to be calculated in the definition of total floor area for the purposes of determining the gross leasable area.
Total floor area is defined by the Regulations relevantly to mean:
The sum of the superficies of horizontal sections thereof made at the level of each floor, inclusive of all roofed areas and of the external walls and of such portions of any party walls as belonged to the building.
Parabanks contends that the goods lifts and stairs transcend both the basement and ground levels of the main building. It does not matter that there is only one base of the lift shafts, or that the floor of the goods lifts moves between the basement and ground floor levels. It does not matter that the landing for the stairs on the ground floor does not take up the whole of the void in which the stairs are placed.
The defendants accept that the area of the spaces occupied by the goods lifts and stairs should be counted once at the basement level but should not be counted again at the ground floor level. They contend that they are effectively voids at the ground floor level and do not constitute part of the floor.
Parabanks went as far as to contend that, if there were a mezzanine floor which only occupied 10 per cent of the footprint of a building, the entirety of the footprint of the building at the mezzanine level is required to be counted as part of total floor area. I reject Parabanks’ contention in this extreme form. However, the definition of total floor area makes it clear that it is not confined to areas which comprise a floor and it focuses instead upon the more general concept of “superficies of horizontal sections” at the level of each floor. For example, areas occupied by walls would not sensibly be described as being floors, but are explicitly required to be included in the calculation of total floor area.
Where there is a void enclosed on two or three sides by the floor, the void is relatively small and dedicated to a specific use such as the movement of persons or goods between floors, it is to be counted as part of the “superficies of horizontal sections at the level of each floor” for the purposes of total floor area.
The area occupied by the two goods lifts and the stairs at the level of the ground floor totalling 48.6 metres is to be counted in the calculation of gross leasable area for the purposes of principle 25.
Personal service establishments, restaurants and bulky goods outlet
Parabanks makes the same contention in respect of the second application as it made in respect of the first application which I have addressed at [102]-[117] above.
On 21 June 2013, the Council wrote to Saints’ planners inviting a response to the questions posed by Parabanks’ solicitors in their letter dated 13 June 2013. Parabanks’ solicitors referred to Mr Brisbane’s report to the effect that the Neighbourhood Centre has too many personal services tenancies and restaurant tenancies to be feasible. They demanded that the Council require from Saints information about the nature of the goods and/or services to be sold from each tenancy in the building to determine whether each tenancy comprised a “personal services establishment” or “bulky goods outlet”, and inquire as to the tenancies labelled “restaurant” to enable the Council to determine whether each tenancy is intended to function as a dine-in or takeaway facility.
On 11 July 2013, the solicitors for Saints responded to the Council’s letter. In relation to personal services and restaurants, their response included the following passages:
Our client is yet to engage in any active discussions in relation to the proposed tenancies or to market the centre …
Our client has not yet entered into any arrangements with tenants other than the “anchor” tenant which will be leased as a “Foodland supermarket” …
There are many styles of PSE’s and bulky goods outlets. The precise services offered are constantly evolving … Our client is not seeking approval for any particular style of PSE and is not required to do so. Our clients expects that the range of offerings will continue to evolve and that there will be future types of PSE offerings which are not currently contemplated.
Most importantly our client will only be able to use any of the designated premises as a PSE.
…
Our client has sought approval for restaurants. The proposal is clear. Our client is not seeking approval for a takeaway food shop and the tenancies designated as restaurants could not be use in that way.
For the avoidance of doubt the premises designated as “restaurant” will be used primarily for the consumption of meals on site. The proposed tenancies are plainly capable of being used in such a way. Our client will seek to enter into arrangements with tenants after obtaining development approval. It intends that they will be traditional restaurants offering different styles of food …
I reject Parabanks’ contentions for essentially the same reasons as in respect of the first development application.
Parabanks puts an alternative contention that mandamus should be issue to compel the Council to exercise its powers under section 39 of the Act to obtain further information from Saints. The defendants contend that section 39 confers upon the Council a power but the Council has no duty to exercise that power either in the circumstances of the present case or generally. It is not necessary to resolve that question.
There is no basis for making an order in the nature of mandamus compelling the Council to make further inquiries. Saints responded on 11 July 2013 to the inquiries which Parabanks’ solicitors demanded that the Council make. Given the nature of that response, in a practical sense there is no further information which the Council could seek on the matters the subject of the demand by Parabanks.
For the reasons given at [105]-[107] above, the designation of areas as “personal services”, “restaurant” and “bulky goods outlet” is, in the absence of evidence to the contrary, to be taken at face value. Saints will be confined to using those areas for those purposes as a result of the development plan consent referring to the approved plans which so designate those areas.
Conclusion
The gross leasable area of relevant shops the subject of the second application for development plan consent does not exceed 5,500 square metres.
Hypothetical development
Parabanks puts the same contentions in respect of the second application as were put in respect of the first. I reject those contentions for the same reasons given at [173]-[178].
Conclusion
I grant relief in the nature of certiorari to quash the purported development plan consents conveyed by the decision notification forms dated 20 December 2012 signed by Mr Sproule and Mr Taylor.
I do not grant any relief in respect of the second development plan consent dated 21 May 2013.
I will hear the parties as to the precise form of the orders to be made and consequential orders.