Rhylyn v District Council of Willunga

[1994] SASC 4919

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS Administrative law - application for judicial review - Development consent to use part of premises as dentist's rooms - premises in District Commercial Zone - District Commercial Zone divided into five areas including retail area and off ice/consulting rooms area - development consent related to premises in retail area - Council held not to have considered whether proposed development is seriously at variance with Development Plan - in exercise of discretion, consent not quashed.

Building control and town planning - Development consent to use part of premises as dentist's rooms - premises in District Commercial Zone - District Commercial Zone divided into five areas including retail area and off ice/consulting rooms area - development consent related to premises in retail area - whether Council required to consider whether proposed development is seriously at variance with Development Plan - Council failed so to consider - whether consent invalid. Development Act, 1993 5533, 35 and Planning Act, 1982 547. South Australian Housing Trust v Lee (1993) 81 LGERA 378; Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 and Parramatta Cit Council v Hale (1982) 47 LGRA 319, applied.

HRNG ADELAIDE #DATE 22:12:1994

Counsel for plaintiff:         Mr Hayes QC with Mr Costello

Solicitors for plaintiff:     Jeff Jones

Counsel for defendant         District Council of Willunga:
   Mr Bell

Solicitors for defendant     District Council of Willunga:
   Finlaysons

Counsel for defendant         Ashford Holdings:
   Mr S Walsh Qc With Mr Hamilton

Solicitors for defendant     Ashford Holdings:
   Grope Hamilton

ORDER
Application dismissed.

JUDGE1 DEBELLE J This is an application for judicial review. The applicant applies for a declaration that a development consent granted by the District Council of Willunga to Ashford Holdings Pty Ltd to use premises as dentist's rooms is invalid. It seeks also an order in the nature of a certiorari quashing the consent.

2. On 29 June 1994, Ashford Holdings Pty Ltd ('Ashford') applied to the District Council of Willunga ('the Council') to use existing premises as dentist's rooms. The premises are at Aldinga Beach, which is within the Council area. The premises are part of a complex of shops. At the time of the application, the existing use of the premises was for the sale of fruit and vegetables.

3. Pursuant to that part of the Development Plan which applies to the Council's area, the shopping centre is within a District Centre Zone. The Development Plan also includes what is called a 'Concept Plan' for this District Centre Zone. The Concept Plan is depicted in a map which forms part of the Development Plan and is called Map Wi/18.

4. The Development Plan also refers, in terms, to the 'Concept Plan'. The Concept Plan divides the area of the District Centre Zone into five. The largest is Policy Area 1 containing an area of 8.5 hectares. It is intended, as the Development Plan states, to be used as the 'Retail Component'. Policy Area 2 is an area of some 3.1 hectares and is intended as the 'Civic Component'. Policy Area 3 is intended to be the site of a tavern and contains some 1.25 hectares. Policy Area 4 is described as the "Commercial Component" and contains an area of 1.8 hectares. Policy Area 5 is intended as an area in which offices or consulting rooms are to be developed and contains some 1.6 hectares. The premises which are the subject of the application by Ashford are in policy area 1, that is to say, the retail area.

5. The Development Plan sets out the Objectives and Principles of Development Control for this District Centre Zone. The Objectives provide:-
    "Objective 1: A centre which develops as the main focus of
    retail, civic, administrative, community, educational,
    office and recreational activities to serve the residents of
    the Willunga area.
    Objective 2: A centre in which all development is designed
    and sited to achieve a cohesive and co-ordinated built form.
    Objective 3: A centre conveniently located in relation to
    main roads and existing and possible future public transport
    facilities.
    Objective 4: A centre developed in accordance with Map
    Wi/18."

6. A number of the Principles of Development Control for this zone are also relevant. They are Principles 1 to 9:
    "1. Development undertaken in the District Centre Zone
    should be, primarily, a range of retail, civic,
    administrative, community, educational, office and
    recreational activities related to the size and
    characteristics of the population served.
    2. Centre uses are to be developed in accordance with the
    Concept Plan, and should be integrated between Policy Areas
    primarily through the focusing of safe pedestrian links to
    the central public space.
    3. The centre should be developed in orderly stages, and
    retailing in particular should be provided in accordance
    with a demonstrated demand for such facilities. Development
    proposals at each stage should contribute to the long term
    orderly growth of the centre.
    4. Policy Area 1, identified on Map Wi/18, should be
    developed with major retail facilities for the population
    served by the Centre, with a total gross leasable floor area
    (for shopping facilities only) of 15,000 square metres,
    comprised of a small module discount department store, a
    supermarket and specialty shops.
    5. Policy Area 2 should primarily accommodate civic
    facilities, such as municipal offices, a library and public
    buildings, together with buildings which may be used for
    complementary purposes, such as child-minding/day care
    facilities, ambulance, police or fire stations, technical
    and further education, government office accommodation and
    indoor recreation facilities.
    6. Policy Area 3 should be developed as a hotel or tavern in
    conjunction with the development of adjoining facilities to
    ensure the co-ordinated provision of car parking, pedestrian
    and vehicle movement.
    7. Policy Area 4 should be developed for small-scale
    showroom facilities, indoor recreation facilities and
    commercial facilities such as service stations. The only
    retailing allowed in the Policy Area should be bulky goods.
    8. Policy Area 5 should be developed predominantly for
    office purposes, such as consulting rooms and similar
    establishments which will serve to separate or 'buffer'
    commercial development in Policy Area 4 from residential
    development north of Heathersay Avenue.
    9. No retail development should occur in Policy Areas 2, 3
    and 5."

7. On 19 July 1994, the application by Ashford was considered by the Environment Services Committee of the Council. A report had been prepared by the Council's planning officer. It recommended that the application be approved. The report is brief. After stating the name of the applicant and providing brief particulars of the development, it concluded with a section entitled 'Planning Consideration'. It reads:
    "The applicant wishes to use part of shop 9 (which is
    presently approved for use as a shop) for the establishment
    of dentist's consulting rooms. The proposal is considered
    appropriate with regard to the site and locality and accords
    with the relevant provisions of the Development Plan."

8. The report concluded with the recommendation that the Council approve the application.

9. The minutes of the meeting of the Environment Service Committee show that the application by Ashford was one of a number of matters which were dealt with under the heading 'The following items were not reserved at callover'. The effect of that note is that the item was not listed for specific discussion at the meeting of the Committee unless any member of the Committee moved that it be discussed. In other words, it was intended that the proposal be approved on the basis of the planning officer's report unless any member of the Council sought to have the matter singled out for discussion and the matter made the subject of separate consideration by the Council and the subject of a separate resolution.

10. The Environment Services Committee adopted the recommendation and in turn recommended this and other matters for the approval of the Council. Later that evening the Council adopted the recommendation of its Environment Services Committee. As a consequence, Ashford then had what the DevelopmentAct calls a provisional development plan consent. By reason of the terms of s.33 of the Development Act 1993, it was necessary for Ashford also to obtain provisional building rules consent. That consent was obtained at a meeting of the Council on 5 August 1994. It is common ground that, in the particular circumstances of this case, all that Ashford had to obtain was a provisional development plan consent and a provisional building rules consent. Upon those two consents having been obtained, Ashford was then at liberty to proceed with its development.

11. The plaintiff seeks to set aside the development consent granted by the Council on three grounds:-
    (1) the proposed development is seriously at variance with
    the Development Plan;
    (2) that the Council failed to make any or any proper
    assessment of the proposed development by having regard to
    the relevant provisions of the Development Plan; and
    (3) that the Council has not validly approved the proposed
    development.

12. In the course of argument in this application, a number of issues have been debated. I think, however, the issues for determination fall under three headings. First, did the Council proceed in accordance with the procedures required by the terms of the Development Act; secondly - and this is a subsidiary aspect of the first question - did the Council consider whether the proposed development was seriously at variance with the Development Plan; and, thirdly, if the Council has failed to act as required by the terms of the Development Act, should an order quashing the consent be made in the exercise of my discretion?

13. There are some material differences between the Development Act and its predecessor, the Planning Act 1982. Both require a planning authority, charged with the duty of determining whether planning consent should be granted, to have regard to the terms of the Development Plan. However, the Development Act 1993, unlike the Planning Act 1982, does not in terms require a planning authority to determine whether the proposed development is seriously at variance with the provisions of the Development Plan. Expressing the matter another way, s.33(1) of the Development Act, like s.47(9) of the Planning Act, requires the planning authority to have regard to the Development Plan but the Development Act does not contain a provision such as s.47(9)(b). However, s.35 of the Development Act retains the concept of whether a proposed development is seriously at variance with the Development Plan. S.35(2) provides:
    "A development that is assessed by a relevant authority as
    being seriously at variance with the relevant Development
    Plan, must not be granted consent."

14. It will be apparent that there is a substantial difference in emphasis, if not also in purpose, between the provisions of s.35(2) of the DevelopmentAct and provisions of 47(9) of the Planning Act. Given the terms of s.35(2), it is curious, to say the least, that the Development Act does not include a provision along the lines of s.47(9). Nevertheless, the retention in the Development Act of the concept of a proposal being seriously at variance with the Development Plan carries with it the clear implication that a planning authority has a duty, when considering any application before it, to determine whether it complies with the Development Plan or is seriously at variance with it or in what other respect it accords or does not accord with the provisions of the Development Plan. In this respect I refer to the observations of this court in South Australian Housing Trust v Lee (1993) 81 LGERA 378, 388. Although the court was there referring to the duties imposed upon planning authorities under the Planning Act, the same duties must obtain in relation to the Development Act and have equal application to it. The validity of this conclusion can be tested by examining what the position would be if that were not so. If it were not so, the curious position would obtain, that, whilst a Council is charged by s.33(1) of the Development Act to have regard to the Development Plan, it could avoid the responsibility of determining whether a proposal was seriously at variance with the Plan. The proposition has only to be stated to demonstrate the conclusion that councils considering applications made under the Development Act must determine whether the proposal is seriously at variance with the Development Plan, as they did under the Planning Act. This conclusion then leads to the second question, namely, whether the Council, on this occasion as the relevant planning authority, considered whether the proposal was seriously at variance with the Development Plan. There are three reasons why I think it did not.

15. First, as already mentioned, the Environment Services Committee had before it a report from the Council's planning officer which stated that the proposal 'is considered appropriate with regard to the site and locality and accords with the relevant provisions of the Development Plan.' Expressed in those terms, the report is misleading. It does not draw to the attention of the members of the Committee or the members of the Council the fact that the development is not in accordance with the provisions of the Development Plan. The proposed dentist's rooms are consulting rooms of the kind which the Plan contemplated would, in the ordinary course, be situated in Policy Area 5. A set of consulting rooms has already been erected in Policy Area 5. They are the premises owned by the plaintiff. It does not even require a careful reading of the Development Plan to notice that it would be wrong to say that the proposal accords with the relevant provisions of the Development Plan. What ought to have been stated was that the proposal did not comply with the terms of the Plan in that it is proposed to place consulting rooms in an area which the Development Plan stated should be developed for retail shops. If it was the opinion of the planning officer that it was appropriate, nevertheless, to grant planning consent, that opinion could have been stated. In that way, all of the relevant issues would have been drawn to the attention of the members of the Committee and of the Council.

16. Secondly, it has already been mentioned that this application was listed on the agenda of the Environment Services Committee as an item 'not reserved at callover'. The evidence of the District Manager suggests, and I infer, that the decision as to whether a matter is on the list of items not reserved at callover is an administrative decision. Once that decision has been made, it is for members of the Committee to determine whether the matter should be taken off that list. The fact, therefore, of listing the matter in that way might lead members of the committee to conclude that it was not of special significance.

17. Thirdly, although both the District Manager and the Council's planning Officer have sworn affidavits, there is nothing to indicate what transpired at the meeting of either the Environment Services Committee or the Council. It is, I think, reasonable to infer, in the absence of such evidence, that there was no discussion by the Council of this application other than to adopt the recommendations, respectively, of the planning officer at the meeting of the Environment Services Committee and of the Environment Services Committee at the meeting of Council.

18. Mr Walsh QC, who appeared for Ashford, strongly submitted that, notwithstanding these three matters, it was not open to the court to take the next step and infer that the Committee or the Council collectively had not considered the question whether the development application was seriously at variance with the Development Plan. In this respect, he referred to the observations of Pearlman J in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, 195 where Her Honour said:
    "Furthermore, the material from which the state of mind of
    the Council can be inferred is not limited to what occurred
    at the Council meeting or the content of the material
    actually or constructively before the Council in relation to
    the application the subject of the Council's decision.
    Councillors do not make decisions in a vacuum; they have
    local knowledge and general knowledge which is available to
    inform them on issues which they have to consider."

19. All that is true, and the court must not lightly infer that in their examination of the agenda and their later consideration of the recommendations, the members of the Council, or some of them, did not consider whether Ashford's proposal accorded with the Development Plan. In all the circumstances, I do not think one can overlook the fact that there was a recommendation which, on any view, was capable of misleading the members of the Committee and of the Council.

20. In this respect it is, I think, appropriate to apply the observations of Moffitt P in Parramatta City Council v Hale (1982) 47 LGRA 319, 346:
    "While it is the collegiate body which must take the matters
    into consideration and accordingly must be aware of such
    matters to enable it to do so, that body may rely on the
    inquiry, advice and recommendations of its officers.
    Accordingly it is open to it to adopt such recommendation,
    provided in doing so it is aware from the report or from
    some other source, for example it's general knowledge of all
    the relevant ... matters ..... By adopting the
    recommendations it takes such relevant matters into
    consideration. The simple adoption even without debate of a
    recommendation made by the Council's officers in a report
    which refers to the relevant .... matters would without
    more, leave no room for an inference that the collegiate
    body had not taken such matters into consideration."

21. But as his Honour also observes, the case may be otherwise. The case, I think, is otherwise where there is a report which states that the development accords with the Development Plan, when on any view it does not.

22. The burden of proof on the question whether the Committee and the Council considered these matters is, of course, upon the plaintiff. In my view it has discharged that burden. In my view, the irresistible inference, in all the circumstances, is that the Committee and the Council did not address its mind to the question whether the proposed proposal accorded with the terms of the Development Plan or, more accurately, whether this proposal was seriously at variance with the terms of the Development Plan. It follows, therefore, that the Council has failed to discharge the task which it is charged to do by the Development Act.

23. The question then remains whether in all the circumstances and in the exercise of my discretion it is appropriate to grant the relief the plaintiff seeks. Here, I think, it is necessary to determine the extent to which this proposal departs from the terms of the Development Plan.

24. In the course of his submissions Mr Hayes QC, who appeared for the plaintiff, properly pointed out that the court cannot infer what decision the Council would have made had its attention been drawn to the fact that the proposal did not strictly accord with the terms of the Development Plan. As he said, once that issue had been raised, it was open for the Council either to take the view that notwithstanding the departure from the terms of the Development Plan, the proposal ought to be approved as it was not seriously at variance with the Plan, or to take the view that it was a serious departure from the Plan and, as such, one which the terms of s.35(2) required it to refuse. There is considerable force in the submissions. I am conscious also of the fact that this court cannot permit itself to stand in the shoes of a planning authority and attempt to determine the planning merits or otherwise of a proposal on an application for judicial review. All that is very well established, and it is unnecessary to refer to authority.

25. However, the fact nevertheless remains that what is proposed is to develop one small part of a retail centre for use as a dentist's consulting rooms. The significance of this departure from the Plan is in part signified by the evidence that the part of the premises to be used for dentist's consulting rooms is 0.63% of the retail area. Whatever the precise percentage might be and, although the proposal is a departure from the terms of the Development Plan in that it seeks the establishment in the retail area of that which according to Plan ought to be in the office and consulting room area, it is but one set of rooms.

26. I have regard also to the fact that this is an area which, until very recently, was in broad acre form and undeveloped so that it is possible for the Council to be more insistent upon requiring adherence to its Development Plan than it might be in other areas where the relevant area is substantially developed.

27. It must also be said that councils who propose Development Plans of this kind should, in the interests of proper planning, do their best to adhere to the terms of the Development Plan. If they do not, it is futile on their part to propose a Development Plan upon which people make investment decisions.

28. It might also be said that to permit this development is to allow, as it were, the thin end of the wedge and thereby encourage other development of this kind and thereby frustrate the Development Plan. I think that is to overstate the position. Had this been a suite say of consulting rooms, the position might have been quite different.

29. I am mindful of all the circumstances which, in other circumstances, might militate against this court exercising its discretion in this way. However, I think that in all the circumstances, it appropriate not to grant the relief which the plaintiff seeks. I think this is a case which, when all relevant considerations are weighed, amounts to a de minimis departure from the terms of the Plan. However it is characterised, I do not think it is such a departure which justifies the court in granting the relief which the plaintiff seeks.

30. For all of these reasons the application is dismissed. The orders will be: Application dismissed. No order as to costs.