Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
RYMILL PARK APARTMENTS PTY LTD v RYMILL HOUSE FOUNDATION PTY LTD & ANOR
[2023] SASC 107
Judgment of the Honourable Justice Hughes
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
The applicant, Rymill Park Apartments Pty Ltd, sought judicial review of a grant of planning consent by the Corporation of the City of Adelaide Council Assessment Panel (“the Panel”). The proposed development at 100 East Terrace, Adelaide (“Rymill House”), has three primary components, however the focus of the challenge was upon the construction of a function facility in the north-western portion of the site, separate from the State Heritage listed dwelling. The Panel granted planning consent pursuant to the Planning, Development and Infrastructure Act 2016 (SA) (“PDI Act”). The development proponent and respondent in these proceedings, Rymill House Foundation Pty Ltd as trustee for Rymill House Foundation Trust, took no active part in the proceedings.
The applicant owns land approximately 53m from Rymill House, for which they have planning consent to build a 16-storey mixed-use apartment building. The applicant was notified of the proposed development at Rymill House and made submissions against the development to the Panel as part of the consultation process.
The applicant contended that the decision should be quashed by the Court because, in light of the obligations upon the Panel to perform the function of assessing the application, the Panel misdirected itself at law, and/or proceeded in a way that was legally unreasonable, or made a decision that was legally unreasonable:
(a) In its treatment of the impact of the development on the heritage value of the site in light of the Planning and Design Code’s (“the Code”) policies with regard to heritage;
(b) In its treatment of the priority of residential amenity in light of the zoning policies with regard to the site;
(c) Because it granted consent in reliance on landscaping documents that were not before it;
(d) Because it did not assess the proposed development against the Code in the manner provided for by the PDI Act.
The interested party in these proceedings, the Panel, assisted the Court by making submissions on the operation of the legislative scheme and the nature of the judicial review sought.
Held, dismissing the application for judicial review:
1. There is no direct evidence the Panel has failed to apply the Code’s hierarchy and has failed to give appropriate weight to higher-order policies.
2. The Panel is more likely than not to have reached the conclusion that any variance from the State Heritage Place Overlay was not significant. A legitimate pathway to consent, from a heritage perspective, existed.
3. It has not been shown that, in relation to the zone policies, the grant of consent was not lawfully open to the Panel to give.
4. The landscaping is insufficiently central to the overall development for any lack of particularity or certainty to void the planning consent; in any event, there was sufficient particularity of the proposed landscaping in the plans and there was nothing proposed that was inimical to the heritage value of the place.
5. The applicant has not established that the Panel could not, on the material before it, have properly reasoned to a conclusion that the development was not seriously at variance with the Code, and that a grant of consent was appropriate.
6. The applicant has not established that the planning authority’s decision to grant planning consent for the development should be quashed for jurisdictional error or unreasonableness.
Planning, Development and Infrastructure Act 2016 (SA) s 12, s 13, s 57, s 66, s 101, s 102, s 107, s 122; Planning, Development and Infrastructure Regulations (General) Regulations 2017 (SA) reg 41; Development Act 1993 (SA) s 32, s 33; Planning Act 1982 (SA), referred to.
Adelaide Hills Council Assessment Manager v Parkins [2023] SASCA 66; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; City of Mitcham v Freckmann (1999) 74 SASR 56; Development Assessment Commission v A&V Contractors Pty Ltd (2011) 109 SASR 276; Fimmell v District Court of Mount Gambier (No 2) (1988) 143 LSJS 429; Khabbaz & Anor v State Planning Commission & Ors [2023] SASCA 10; Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23; Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor [2010] SASCFC 15; Mar Mina (SA) Pty Ltd v City of Marion & Anor [2008] SASC 120; Minister for Aboriginal Affairs v Peko-Walsend Limited (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; R v City of Munno Para ex parte Weeks (1987) 46 SASR 400; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; St Ann’s College Inc v City of Adelaide [1999] SASC 479; The City of Unley v Claude Neon Ltd (1983) 32 SASR 329; Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Upham v The Grand Hotel (SA) Pty Ltd and The Development Assessment Commission (1999) 74 SASR 557, considered.

RYMILL PARK APARTMENTS PTY LTD v RYMILL HOUSE FOUNDATION PTY LTD & ANOR
[2023] SASC 107
Civil: Judicial Review

HUGHES J: On 30 May 2022, the Corporation of the City of Adelaide Council Assessment Panel (“the Panel”) granted planning consent for development application 21039762 at 100 East Terrace, Adelaide. The development proponent is Rymill House Foundation Pty Ltd as trustee for Rymill House Foundation Trust. The applicant in these proceedings, Rymill Park Apartments Pty Ltd, seeks judicial review of the grant of planning consent, and asks the Court that it be quashed. The applicant contends that the decision is vitiated by legal error and/or is legally unreasonable.
About the development site
The proposed development is at a site at allotment 10 in Deposited Plan 14079 in the Area named Adelaide, Hundred of Adelaide.[1] It is known as 100 East Terrace, Adelaide, and the primary building thereon is known as Rymill House. The dwelling is used as a private home by the Constantine family.
[1] Affidavit of P Metljak affirmed on 28 November 2022 (hereinafter: “Affidavit”) PMM-2, Agenda Report at 3.1, p 25.
The dwelling was constructed in 1894. The dwelling faces East Terrace and the site frontage is 55 metres. To the south, the site extends 65 metres along Flinders Street. To the rear of the dwelling, the site extends 55 metres along Hutt Street. To the northern side, the site is adjacent to other occupied sites including land sub-divided from the site last century upon which the former coach house to Rymill House is situated.
Although, for reasons that will become apparent, it is necessary to use the following language with some caution, it is convenient to refer to the East Terrace face of the building as the “front” and the Hutt Street face of the building as the “rear”.
The dwelling is a two-storey State Heritage building, so designated since 1980 on an interim basis and since 1981 on a confirmed basis.[2]
[2] Affidavit, PMM-13, Heritage Register Entry, p 525.
The documents accompanying the application[3] describe Rymill House as “the most elaborately detailed of the parkland frontage town mansions and the only one to have continuity of grandeur and consistent detailing for all façades”.[4]
[3] Affidavit, PMM-2, Agenda Report at 3.1, p 25.
[4] Affidavit, PMM-2, Agenda Report at 2.3, p 24.
The Agenda Report, which synthesised the information concerning the application for the Panel, describes the surrounding locality as containing a mix of land uses including:
·Offices adjoining to the north, fronting Hutt Street;
·Consulting rooms and offices to the south, fronting Hutt Street;
·Offices, consulting rooms and a residential flat building on the western side of Hutt Street (i.e. opposite the rear of the site);
·Dwellings adjoining to the north, fronting East Terrace; and
·Dwellings to the south, fronting Flinders Street East (i.e. facing the southern side of the building).[5]
[5] Affidavit, PMM-2, Agenda Report at, 3.5, p 25.
The site is located within the East Terrace sub-zone of the City Living Zone as designated by the Planning and Design Code. The built character form of the locality is described as “mixed and varied architectural styles and heights ranging from one to four storey buildings”.[6]
[6] Affidavit, PMM-2, Agenda Report at 3.6, p 25.
The proposed development
The proposed development has three primary components:
(1)The construction of a function facility in the north-western portion of the site, separate from the dwelling, and landscaping of the site’s gardens particularly at the rear;
(2)The construction of an outbuilding for use as a carport and storage to accommodate four vehicles, parallel to the north face of the dwelling and accessed from East Terrace;
(3)Alterations to a doorway of the main residence and installation of a lift within the dwelling.
The focus of the challenge was upon the proposed function facility. The consent insofar as it related to the outbuilding and alterations to Rymill House itself were not the subject of challenge.
The function facility is proposed to be constructed in the north-western corner of the site, near the Hutt Street rear boundary and the northern boundary. The proposal is that the building be fabricated with glass and in a pavilion structure. It would have a floor area of 246m² and a roof area of 336m². The difference between these figures is explained by a significant roof overhang on the southern side of the building covering a large unwalled entrance area. The overhang extends beyond the midpoint of the rear boundary and extends beyond the western rear doors of Rymill House when viewed from Hutt Street.[7] Hedging is proposed to demark the part of the site occupied for the function facility and that occupied by Rymill House.
[7] Affidavit, PMM-2, Agenda Report, Enzo Caroscio Plans, p 214-215; 226-228.
The developer
The respondent is the development proponent, Rymill House Foundation Pty Ltd as trustee for Rymill House Foundation Trust, which took no active part in the proceedings.
The applicant
The applicant is the owner and developer of a site at 3-6 Hutt Street, Adelaide, that is approximately 53 metres from the proposed development.[8] Whilst it is currently occupied by a two-storey building, the applicant has planning consent for demolition of that building and construction of a 16-level mixed use building on the site. One of the uses of the building is residential apartments.
[8] Affidavit at [11].
Through its solicitor, the applicant has expressed concern that the function facility proposed for 100 East Terrace will cause adverse traffic effects in relation to on-street parking, and adverse noise effects, which may in turn affect the saleability of and/or the price achievable for the apartments at 3-6 Hutt Street for which the applicant has planning consent.[9]
[9] Affidavit at [16].
The decision-maker
The Panel was comprised of a Presiding Member and four members. Apart from a council member, the Panel Members are all required to be, and were, planning professionals. The Panel appeared through counsel as an interested party and made submissions concerning the Panel’s process and the legislative regime. The development is governed by the Planning, Development and Infrastructure Act 2016 (SA) (“PDI Act”) and the Planning and Design Code containing the policies against which the development application was to be assessed.
The process undertaken by the Panel
The Panel convened to hear representations and deliberate on the application on 30 May 2022. The Panel had been provided with a document which summarised the application materials, hereafter referred to as the “Agenda Report”, compiled by Mr Grieve, Senior Planner, of the interested party. The Agenda Report contained 10 sections:
·Description of the proposal
·Background
·Description of the land and locality with photographs of the site
·Type of consent required
·Category of development for each element of the development
·Identification of the persons who had responded to the public consultation process and a summary of the topics of their representations and the development proponent’s responses
·A summary of the response from the mandatory agency referral to the Minister for Heritage
·A summary of the responses from internal referrals regarding impacts on traffic, infrastructure and waste
·A summary of each of the applicable policies from the Planning and Design Code annotated with the report writer’s opinion as to whether the provision was “achieved” or “not achieved”
Appended to the Agenda Report were:
·The Planning Application drawings by Enzo Architecture
·The development proponent’s planning report by Marcus Rolfe, URPS
·Environmental noise assessment by Resonate
·Report by Stevens Architects dated December 2021 entitled “Heritage Impact Statement for The Rymill House Foundation”
·37 photographs of the site
·Traffic report by MFY Pty Ltd dated 2 December 2021 with 2 attached photographs
·Photograph of the location of representors
·A summary of representations made in response to public consultation
·URPS letter dated 22 March 2022 responding to representations with attachments:
·A letter from Stevens Architects responding to representations regarding heritage issues
·A further report from MFY Pty Ltd dated 18 March 2022 responding to representations regarding traffic issues
·A noise management plan by Resonate
·A response from the delegate of the Minister for Heritage dated 28 January 2022
The proposed development was required to be “performance assessed” against the Planning and Design Code. In other words, there was no particular manner in which this development was required to be assessed except on its merits.[10]
[10] Affidavit, PMM-2, Agenda Report at 5, p 29.
The Agenda Report contained the relevant policies from the Planning and Design Code against which the application was required to be assessed. By way of overview, these were:
·Performance outcomes from the City Living Zone Assessment provisions regarding: land use and intensity, built form and character, building setbacks and ancillary buildings and structures.
·2 desired outcomes from the East Terrace Subzone: development of a catalyst site maintaining an open landscaped setting; and function facility, outbuilding and dwelling share common services and access.
·3 overlays: State Heritage Place Overlay with one desired outcome that the function facility is compatible with existing residential land use and underpins ongoing use of the Place which, in turn, supports maintenance and conservation of the Place, and 17 related performance outcomes; Stormwater Management Overlay with one desired outcome that the proposed stormwater discharge connect with the existing stormwater network and one associated performance outcome; and Urban Tree Canopy Overlay with one desired outcome that grounds to the west and southwest of the House are landscaped with two related performance outcomes.
·One desired outcome from the general development policies: that development is contextual, durable, inclusive and sustainable.
·14 general policies concerning design, external appearance, interface between land uses, landscaping, environmental performance, water sensitive design, garage appearance, massing, and waste storage.[11]
[11] Affidavit, PMM-2, Agenda Report at 9.4, p 42.
The Panel received 15 written submissions from representors. Two were supportive and 13 opposed. Oral submissions were made from or on behalf of five of the 15 representors at the meeting.[12] The majority were residents concerned about the effect of the development on their residential amenity, and in particular the potential for noise late at night and insufficient parking for function attendees. The applicant in these proceedings was a representor and submitted a written objection and appeared at the meeting. Two of the speakers, one who spoke on behalf of the applicant in these proceedings and one who spoke on behalf of an individual resident, spoke in opposition to the proposal and provided professional written opinions in relation to the proposed development.[13]
[12] Seven were listed to be heard but the minutes indicate that two were not present: Affidavit, PMM-3, Minutes, p 450.
[13] Affidavit, PMM-2, Agenda Report, submission by Garth Heynen of Heynen Planning Consultants on behalf of resident Josephine Martin at p 391-404; Fabian Barone of Future Urban on behalf of Rymill Apartments at p 382-389.
The Panel also heard from Mr Rolfe of URPS, the planner engaged by the developer.
The making of the decision
Evidence of the decision-making process was provided to the Court through an affidavit of Mr Grose, Assessment Manager for the Council, who deposed that the Panel deliberated for approximately 30 minutes.[14]
[14] Affidavit of S Grose affirmed on 16 December 2022 at [13].
The minutes of the Panel’s meeting on 30 May 2022 record that the Panel resolved that the development was not seriously at variance with the Planning and Design Code and granted planning consent to the developer subject to 12 conditions.[15] The conditions were not the focus of any particular challenge. The conditions were relevant insofar as proposed condition 3 in the Agenda Report was modified in a material way by the Panel, which will be discussed further below.
[15] Affidavit, PMM-3, Minutes, p 448.
The Panel’s decision was conveyed to the developer in a Decision Notification Form.[16]
[16] Affidavit, PMM-1, p 11-15.
The Panel provided no reasons for its decision.
The challenge
The applicant seeks to have the Court quash the planning consent. The applicant raises four contentions in respect of the decision. Those contentions may be summarised as being that, in light of the obligations upon the Panel to perform the function of assessing the application, the Panel misdirected itself at law, and/or proceeded in a way that was legally unreasonable, or made a decision that was legally unreasonable:
(a)In its treatment of the impact of the development on the heritage value of the site in light of the Code’s policies with regard to heritage;
(b)In its treatment of the priority of residential amenity in light of the zoning policies with regard to the site;
(c)Because it granted consent in reliance on landscaping documents that were not before it;
(d)Because it did not assess the proposed development against the Code in the manner provided for by the PDI Act.
A key submission of the applicant particularising the fourth contention was that the Court should infer that the Panel has adopted an approach to the assessment that overlooked the dominance of performance outcomes in the hierarchy of policies. On the applicant’s case, this led the Panel to overlook or attribute insignificant weight to the failure of the development to meet the State Heritage Place Overlay outcomes in the Code and the residential amenity focus of the zone outcomes. Alternatively, it was the applicant’s view that the Court should infer that the Panel has misdirected itself about the interpretation of the Code or reached a conclusion that was unreasonable in the legal sense. It can be seen, therefore, that the fourth contention alleged an improper approach to the task in a general sense leading to, and accompanied by, specific errors. In due course, it will be convenient to address that contention first.
Establishing error

Given the role of planning judgment, and the absence of reasons, establishing outcome error in respect of a grant of planning consent is difficult. For the applicant to succeed, the Court must infer that the Panel has committed an error in the undertaking of its task or reasoned in an illogical or irrational way to its conclusion, having regard to the material that was before it, the task required of it, and the outcome it reached.[17]
[17] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Error from misconstruction
An error can arise from a misconstruction of the provisions governing the task. In Khabbaz & Anor v State Planning Commission & Ors,[18] the Court of Appeal said, in respect to the regime under the former Development Act 1993 (SA):
[W]hether a decision-maker has interpreted a principle in a Development Plan correctly is a question of law. For a body such as SCAP to interpret a principle wrongly would be an error of law going to its jurisdiction to grant consent, as it would have failed to assess the proposal against the Development Plan properly construed. Having said that, care should be taken before concluding that a particular construction of a provision in a Development Plan was not open.
[18] [2023] SASCA 10.
The Court of Appeal went on to cite St Ann’s College Inc v City of Adelaide[19] in respect of the construction task:
The provisions of the Development Plan are not to be construed like a statute. A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. The plan must be considered as a whole for the purposes of determining its purpose and intent.
[19] [1999] SASC 479 at [16] (Debelle J, Duggan and Williams JJ agreeing).
Relevant considerations arise from the particular development application
The statutory context is central to understanding the nature of the decision-maker’s task and how it is directed to be undertaken. In a joint judgment in Upham v The Grand Hotel (SA) Pty Ltd and The Development Assessment Commission,[20] Doyle CJ and Bleby J, with whom Wicks J concurred, said:
[20] (1999) 74 SASR 557 at [152]-[159].
152    The assessment made by the DAC under s 35(2) involved consideration of a series of facts about the proposal and the locality, and consideration of a number of provisions of the Development Plan. It involved the application of those provisions to the facts by the exercise of a planning judgment. The decision made is not simply a process of fact finding. It involves substantial elements of judgment both at the level of assessing the provisions of the Development Plan and at the ultimate stage of relating the provisions of the Development Plan to the facts.
153    That feature of the decision makes particularly pertinent some observations made by Mason J in Minister for Aboriginal Affairs v Peko-Walsend Limited (1986) 162 CLR 24. In relation to relevance as a ground of judicial review, Mason J said (at 39):
“The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.”
154    A little later he said (at 40-41):
“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. ...
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. ...
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ...”
155    His Honour went on to explain how, in some cases, review on the grounds of relevance might be better expressed as review on the basis that the decision is “manifestly unreasonable” (at 41). We will return to that issue later. However, we make the point that these cautionary remarks appear to us to be equally applicable to review on the grounds of relevance and review on the grounds of reasonableness.
156    The decision made by a relevant authority under s 35(2) of the Act involves, as we have explained, considerations of matters of fact and the exercise of a substantial element of judgment. The terms of the section are such that the decision is not one for which the relevant and irrelevant considerations can be determined from the section that empowers the making of the decision. It seems to us that what is relevant will turn upon the nature of the development application and the provisions of the Development Plan: cf Abebe v Commonwealth (1999) 73 ALJR 584 at [195]. Nevertheless, it remains necessary to avoid drifting into a consideration of the merits of the decision, rather than the process by which the decision is reached.
157    Under the section, the relevant authority does not give detailed reasons. The court must decide an attack on validity on the grounds of relevance by considering the material before the relevant authority, and the decision made. An attack on the grounds of relevance can succeed on such a case only if the court is satisfied that the relevant authority must have ignored a relevant matter, or must have taken into account an irrelevant matter, and that that matter is likely materially to have affected the decision made.
158    In the case of a complex assessment of the kind made under s 35(2), it will not be easy to conclude that a relevance complaint is established.
159    An attack on the validity of a decision on the grounds of reasonableness also requires careful consideration of the remarks of Mason J, for the reason that we have indicated. Those same remarks suggest that Mason J accepted reasonableness as a general ground of judicial review: see Peko-Walsend at 41‑42.
Discretion does not create immunity from error
The fact that the discretion is wide and the scope of judicial review is narrow does not mean that it confers complete protection against error. The Court of Appeal in Khabbaz & Anor v State Planning Commission & Ors[21] recently endorsed the reasoning of Debelle J in City of Mitcham v Freckmann.[22] The Court of Appeal said:
[21] [2023] SASCA 10 at [52].
[22] (1999) 74 SASR 56 at [18] (Debelle J; Doyle CJ and Duggan J agreeing).
Debelle J went on to note that the ultimate judgment against a Development Plan has sometimes been described as an ‘unfettered discretion’.[23] He observed, referring to Town of Walkerville v Adelaide Clinic Holdings Pty Ltd,[24] that the discretion is unfettered only in the sense that there is nothing in a Plan which is mandatory. Rather:[25]
It is preferable to describe the exercise of this unfettered discretion as the exercise of a planning judgment within the ambit, scope and purpose of the Development Act, the Development Regulations and the Development Plan.
[The appellants] emphasised, in addition, the statement by Jacobs J in Fimmell v District Council of Mount Gambier (No 2), that:[26]
… one would normally expect a planning authority, having proper regard to the Plan, to respect what it says unless, as a matter of planning judgment, there is some good reason to justify a different conclusion.
That statement was made in the context of rejecting a proposition that a principle in a Development Plan, expressed in mandatory terms, was indeed mandatory. Section 47(9) of the then Planning Act required the decision-maker ‘to have regard to the provisions of the Development Plan’. Similarly, s 33(1) of the Development Act provided that a development was an approved development only if, among other things, a relevant authority had assessed the development against the provisions of the appropriate Development Plan.
In any event, this statement goes no further than to identify the obvious, that it is a jurisdictional requirement that the decision-maker must assess the proposal against the relevant provisions of the applicable Development Plan.
[23] City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
[24] (1985) 38 SASR 161 at 173 (Jacobs J).
[25] City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
[26] (1989) 143 LSJS 429 at 434.
It is not sufficient to establish that there are erroneous routes to the outcome but that, on the balance of probabilities, one or more of those routes was taken. Given that the decision-maker is a body of persons, each of whom may have reasoned in a different way to the conclusion, there will usually need to be a compelling case that the error should be inferred.
Legal error and legal reasonableness
To establish unreasonableness, there must be a lack of a logical basis for the decision.[27] In the context of a decision that necessarily entails professional judgement, and the weighing of factors of qualitatively different types, the Court will not readily reach a conclusion that a decision lacks a logical basis and must, in conducting its assessment, avoid a review of the merits.[28]
[27] Upham v The Grand Hotel (SA) Pty Ltd and The Development Assessment Commission (1999) 74 SASR 557 at [164].
[28] Ibid, at [169].
To ensure that the scope of the judicial review is not exceeded, such a conclusion must be capable of being “discerned plainly by the court from the material before it, without resolving debatable issues relating to planning merits”: R v City of Munno Para ex parte Weeks.[29]
[29] (1987) 46 SASR 400, at 403 per King CJ.
The evidence before the Court
The Court had before it the affidavit of the applicant’s solicitor, Philippa Metljak, of 28 November 2022 which annexed the Agenda Report and various other documents; the affidavit of the Council’s employee, Sebastian Grose, of 16 December 2022; the second-reading speech for the Planning, Development and Infrastructure Bill 2015; the filed procedural documents; and written submissions including primary submissions and two sets of brief submissions filed after the hearing in accordance with the Court’s permission.
The legislative scheme
The PDI Act
The PDI Act was assented to on 21 April 2016 and came into effect in stages between that date and 19 March 2021, overlapping in operation with its predecessor, the Development Act 1993.
Those involved in the administration of the Act are required to advance its objects, as follows:
12—Objects of Act
(1)The primary object of this Act is to support and enhance the State's liveability and prosperity in ways that are ecologically sustainable and meet the needs and expectations, and reflect the diversity, of the State's communities by creating an effective, efficient and enabling planning system, linked with other laws, that—
(a)     promotes and facilitates development, and the integrated delivery and management of infrastructure and public spaces and facilities, consistent with planning principles and policies; and
(b)     provides a scheme for community participation in relation to the initiation and development of planning policies and strategies.
(2)In association with the object referred to subsection (1), the scheme established by this Act is intended to—
(a)     be based on policies, processes and practices that are designed to be simple and easily understood and that provide consistency in interpretation and application; and
(b)     enable people who use or interact with the planning system to access planning information, and to undertake processes and transactions, by digital means; and
(c)     promote certainty for people and bodies proposing to undertake development while at the same time providing scope for innovation; and
(d)     promote high standards for the built environment through an emphasis on design quality in policies, processes and practices, including by providing for policies and principles that support or promote universal design for the benefit of people with differing needs and capabilities; and
(e)     promote safe and efficient construction through cost‑effective technical requirements that form part of a national scheme of construction rules and product accreditation; and
(f)     provide financial mechanisms, incentives and value‑capture schemes that support development and that can be used to capitalise on investment opportunities; and
(g)     promote cooperation, collaboration and policy integration between and among State government agencies and local government bodies.
Part 7 of the PDI Act creates a scheme for development approval. Within that Part, s 102(1) provides that development is approved development if, and only if, a relevant authority has issued a planning consent. It was not in dispute that the Panel was the relevant authority.
Section 66 of the PDI Act requires that there will be a Planning and Design Code (“the Code”) and that it must set out a comprehensive set of policies, rules and classifications which operate selectively in the various parts of the State. The Code is required to incorporate use of zones, subzones and overlays.[30] It must specify policies and rules directed to guiding the assessment of development. It was not in dispute that the development was required to be assessed against the Code as it was in force at the date of the decision in May 2022, with a version identifier of 2023.6.
[30] Section 66(2).
Section 107 of the PDI Act provides for different types of assessment, as follows:
107—Performance assessed development
(1)In a case where proposed development is to be assessed as code assessed development and the development cannot be assessed, or fully assessed, as deemed‑to‑satisfy development, the development will be assessed on its merits against the Planning and Design Code.
(2)In connection with subsection (1)—
(a)     to the extent that 1 or more elements of the proposed development may be classified as deemed‑to‑satisfy under the Planning and Design Code (if any)—that part of the development will be taken to have been granted planning consent; and
(b)     to the extent that paragraph (a) does not apply (including on the basis that that paragraph does not apply at all)—the development will be assessed on its merits against the Planning and Design Code; and
(c)     to the extent that paragraph (b) applies—the development must not be granted planning consent if it is, in the opinion of the relevant authority, seriously at variance with the Planning and Design Code (disregarding minor variations).
(3)If a proposed development is to be assessed under this section—
(a)     subject to a decision of a relevant authority made in accordance with a practice direction, notice of the application for planning consent must be given, in accordance with the regulations, to—
(i)an owner or occupier of each piece of adjacent land; and
(ii)members of the public by notice placed on the relevant land; and
(b)     a person may, in accordance with the regulations and within a period prescribed by the regulations, make representations to the relevant authority in relation to the granting or refusal of planning consent; and
(c)     if a representation is made under paragraph (b) (being a representation received in accordance with the regulations and within a period prescribed by the regulations), the relevant authority must forward to the applicant a copy of the representation and allow the applicant to respond, in accordance with the regulations and within a period prescribed by the regulations, to those representations.
(4)The subject matter of—
(a)any notice required under subsection (3)(a); and
(b)any representation under subsection (3)(b),
must be limited to what should be the decision of the relevant authority as to planning consent in relation to the performance-based elements of the development as assessed on its merits (and a relevant authority should limit the matters that it will take into account in the same way).
(5)In addition, a representation that is not made in accordance with any requirement prescribed by the regulations for the purposes of this section is not required to be taken into account under this section.
(6)The Planning and Design Code may exclude specified classes of development from the operation of subsections (3) and (4).
(7)A planning consent under this section will apply subject to conditions imposed under this Act and subject to such conditions or exceptions as may be prescribed by the regulations or the Planning and Design Code, and subject to any other provision made by this Act or applying under the regulations.
(8)To avoid doubt, the fact that 1 or more elements of a proposed development may be classified as deemed‑to‑satisfy does not prevent a relevant authority deciding not to grant planning consent on account of the assessment of the balance of the development under this section.
(9)A practice direction may specify the form of any notice to be given under this section.
(10)Nothing in this section requires the assessment of an element of a development that may be classified as accepted development.
It was not in dispute that this development was a “performance assessed development” in accordance with s 107, or that the process in s 107 was followed. Consultation with affected persons occurred. None of the aspects of the development were “deemed to satisfy” elements.
The Planning and Design Code
Section 57 of the PDI Act contains the principles directing the content of the Code. The primary purpose of the Code is expressly stated: it is to set out comprehensive policies, rules and classifications for the assessment of development under the PDI Act for a whole of State scheme including only three spatial layers (being zones, subzones and overlays).[31] Specifically, rules in the Code are to be based on clear performance outcomes, may include deemed-to-satisfy requirements (including requirements that can be met in a variety of ways), should be proportionate, suited to relevant conditions and, insofar as is reasonably practicable, seek to minimise regulatory burdens and aim to achieve consistency.[32]
[31] Sections 66(1), 66 (2) and s 66(3)(c).
[32] Section 57(1)(b), (c) and (d).
The Code assembles its provisions into a ‘library’ containing elements only some of which are applicable to a particular development. This differs from the predecessor development plan scheme under which development at a site was governed by a suite of policies relating to a particular area.
The Code contains rules of interpretation. The rules of interpretation describe Desired and Performance Outcomes as follows.
Desired outcomes
Desired outcome[s] are policies designed to aid in the interpretation of performance outcomes by setting a general policy agenda for a zone, subzone, overlay or general development policy module. Where a relevant authority is uncertain as to whether or how a performance outcome applies to a development, the desired outcome(s) may inform its consideration of the relevance and application of a performance outcome, or assist in assessing the merits of the development against the applicable performance outcomes collectively.
Performance outcomes
Performance outcomes are polices designed to facilitate assessment according to specified factors, including land use, site dimensions and land division, built form, character and hazard risk minimisation.

The Code also contains “designated performance features”, as follows:
Designated performance features
In order to assist a relevant authority to interpret the performance outcomes, in some cases the policy includes a standard outcome which will generally meet the corresponding performance outcome (a designated performance feature or DPF). A DPF provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome, and does not derogate from the discretion to determine that the outcome is met in another way, or from the need to assess development in its merits against all relevant policies.
It was agreed that the proposed development was not informed by designated performance features.
Overlays are policies with respect to particular types of development or issues that apply in particular areas and general policies apply universally in respect of the relevant type of development or issue.
Despite the use of the terms ‘rules’ and ‘policies’ in s 57 of the PDI Act and in the interpretation provisions of the Code, it is evident that the use of the term “rule” in or about the Code does not have the effect that any of the provisions of the Code is determinative of whether planning consent should be granted or refused.
Consideration of the applicant’s grounds of review
Contention 24: construction of the Code in the context of the PDI Act
All of the applicant’s contentions, but particularly contention 24, invited the Court’s consideration of the proper approach to be taken by the Panel to assessment against the Code under the PDI Act. For that reason it is convenient to deal with it first.
Mr Doyle KC on behalf of the applicant submitted that a proper construction of the PDI Act that advances its objectives is one that recognises the legislative intent to create a planning system sufficiently clear and directive that development that is inconsistent with the Code will only exceptionally be granted consent, and only where there is a powerful justification that furthers the objects of the PDI Act. [33] The applicant contended that the PDI Act and Code create a scheme reflecting the following propositions:
(1)The Code governs development of an area – it is not aspirational.
(2)The Code is imperative and variance is, ordinarily, readily identified.
(3)The Code’s explicit hierarchy means that consistency with lower ‘layer’ provisions (e.g., General Development Code provisions) can never be a justification for variance with higher ‘layer’ provisions (e.g. overlay provisions); and
(4)The legislative scheme dictates that a merits assessment which identifies inconsistencies or variance with the Code will result in refusal of planning consent unless the inconsistencies or variance are justified conformably with sections 12 and 13 of the PDI Act.
[33] Applicant’s written submissions filed 19 May 2023.
It was contended that the PDI Act envisages that, by virtue of better signalling of a hierarchy of policy, the Code will be applied in a way that corrals the exercise of the Panel’s discretion. Though the individual policies are not mandatory, the structure of the Code provides greater clarity and direction to the Panel. This leads to greater capacity to reveal, with respect to a proposed development, divergence from the Code’s policies, which in turns entails good reason for such divergence before the consent can be properly given.
The applicant submitted that there had been a shift in emphasis, at least, between the Development Act 1993 and the PDI Act insomuch as the Development Act 1993 required that the proposed development be assessed against individual Development Plan requirements, including assessing for compliance and determining whether there are good reasons for any variance, but that the final step was a holistic one that assessed the development against the overall desired character of the locality. Assessment against the Code also entails checking for serious variance but that final step, it was submitted, had been obviated by the creation of the hierarchy of policy objectives in the Code.
Dr Manetta, on behalf of the Panel, submitted that the applicant’s construction of the PDI Act and the Code overstated the emphasis upon the effect of hierarchy in the Code. He submitted that it tended, wrongly, to suggest that a planning authority was required to approach the Code as a series of prescriptions to be considered individually. He observed that the hierarchy operated to resolve inconsistency. He warned that any construction of the relationship between the PDI Act and the Code that had the effect of diminishing the broad discretion vested by the PDI Act in the professional decision-making body would, in the absence of direct textual support, fail to reflect the legislative regime. It was submitted that the appropriate approach was one that gave effect to the manner in which the PDI Act conditions the exercise of the planning authority’s power, and respected the breadth of the discretion vested in the planning judgment, that remains intact following the transition from the Development Act 1993 to the PDI Act.
Consideration of the legislative scheme and contention 24
In his Second Reading address, the Minister said that the process for development approval needed a “major shakeup”.[34] The Second Reading stated at 2326 that:
The warren of planning rules continually thwart and exasperate ordinary South Australians trying to build a house, or businesses wanting to deliver a development, will be replaced with a single, easy-to-access set of rules that can be applied consistently across the State.
The new rulebook, the ‘Planning and Design Code’, will be written in plain language, and focused on design outcomes that can be tailored to address local character needs.
To streamline delivery at a local level, the burden of maintaining convoluted development plans will be lifted from local government, and replaced with a simpler set of regional plans and a menu of zoning options in the code.
[34] South Australia, Parliamentary Debates, House of Representatives, 18 November 2015, 2327 (John Rau, Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform).
The Minister said:
New assessment pathways will increase certainty for development that is reasonably expected in given locations, while providing a tailored assessment approach for more complex projects.
This will ensure that effort is matched to the scale, impact and risk of proposed projects, and entry points into full environmental impact assessment will be more transparent.
Importantly, this will align us with federal environmental laws.
The assessment task should not be seen as a dilettante exercise.
It requires technical expertise and that's why in the new planning system, suitably qualified professionals will be empowered to make assessment decisions directly.
We will give council assessment panels and staff the professional independence they need to make decisions, without any need for second-guessing by elected officials.
We will not allow assessment panels to be dominated by the vagaries of local politics. Councillors and members of parliament will be precluded from sitting on assessment panels. This will help reduce the risk for conflict of interest and improve turnaround times.
At the same time, the focus will shift to the needs of applicants, facilitating outcomes, allowing greater flexibility in the way in which assessment is staged, and providing more and better options for decisions to be reviewed.
Nevertheless, as the Second Reading Speech goes on to reveal, the drivers of the PDI Act were, with one exception, largely matters that are at most peripherally relevant to the issues in these proceedings. Those drivers were a reform agenda to encourage “urban renewal”, protecting farm lands and environmental areas around Adelaide, producing housing that “meets the needs of contemporary and future household formation”, a focus on long-term planning, the conferral on the new State Planning Commission for coordinating long-term planning, a focus on public realm and the creation of “neighbourhoods that are liveable, attractive and safe” and that “accommodate future growth through urban renewal and neighbourhood regeneration”.[35] In any event, the Second Reading is sufficiently aspirational and broadly-worded that it does not contribute much to the task of discerning the nature and purpose of changes to the language of the PDI Act from its predecessors.
[35] Parliamentary Debates (n 34) at 2326.
Significant aspects of the legislative regime that now operate are identical to those that applied under the Development Act 1993, including that no development may be undertaken unless it is approved,[36] and development is approved following a process of approval by an authority that has assessed the development against an instrument containing the relevant policies and rules.[37]
[36] Development Act 1993 s 32; PDI Act s 101.
[37] Development Act 1993 s 33, PDI Act s 102(1)(a).
Relevant to these proceedings, the language of s 107 of the PDI Act is in relevant respects the same as that in ss 32 – 33 of the Development Act 1993. The phrase “the development will be assessed on its merits against the Planning and Design Code” in s 107(1) of the PDI Act is relevantly identical to s 32 in the Development Act 1993, noting that the breadth of the discretion is slightly narrowed from the predecessor provision in the Planning Act 1982 (SA) which required the decision-maker to “have regard to” the Development Plan.
The focus of the decision-maker under the PDI Act is properly directed if the assessment task is undertaken on the basis that the development must not be granted planning consent if it is, in the Panel’s opinion, seriously at variance with the Code.
In light of the significant continuity in language and principle between the Development Act 1993 and the PDI Act, the authorities addressing the predecessor legislation can, with appropriate deference to the usual consideration of distinguishing textual and contextual matters, be relied upon to assist in the construction of the PDI Act.[38]
[38] See Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [16]-[32] per the majority.
The decision-maker’s opinion must be formed on a correct construction of the relevant law.[39] It not a merely mechanical exercise. There is significant professional judgment entailed in determining whether the development complies or is inconsistent with the various policies governing the development.[40]
[39] Upham v The Grand Hotel (SA) Pty Ltd and The Development Assessment Commission (1999) 74 SASR 557 at [136] quoting R v Connell; Ex parteHetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 per Latham CJ at 430.
[40] Upham v The Grand Hotel (SA) Pty Ltd and The Development Assessment Commission (1999) 74 SASR 557 at [152].
As to how a planning authority approaches an aspect of a proposed development that is inconsistent with a particular policy, a “plainly applicable principle” in the policy instrument must only be departed from for “good reason”.[41] However, this is subject to the outer limit of the grant of power, namely that a deviation from compliance with the policy instrument only operates as a proscription on a grant of consent where it is “serious”. As to the meaning of that expression, Debelle J in Mar Mina (SA) Pty Ltd v City of Marion & Anor[42] said:
In this context “seriously” is the adverb reflecting the fourth of the meanings by which the epithet “serious” is defined in The Macquarie English Dictionary, namely “weighty or important”. Thus, the expression “seriously at variance with the Development Plan” refers to that which is an important or grave departure in either quantity or degree from the Development Plan. It denotes something which is plainly not slight or trifling. See also The Shorter Oxford English Dictionary. It is not enough that the proposal might conflict with the Development Plan; it must be seriously at variance with it: Courtney Hill Pty Ltd v Planning Commission (SA) (1990) 59 SASR 259 at 261-262.
In order to discharge the task committed to it by the Development Act, the Council’s Development Assessment Panel (“the Panel”) had to perform two tasks. The first was to consider the proposed development against the provisions of the Development Plan: s 33(1)(a) of the Development Act. The second was to consider whether the development was seriously at variance with the Development Plan: s 35(2) of the Act. It is implicitly required by s 35(2) that, before a consent is granted, the planning authority must make an assessment that the development is not seriously at variance with the Development Plan: Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at [146]. Thus, two issues must be determined. The first is whether the Panel has directed its mind to the question whether the proposed development is seriously at variance with the Development Plan. The second is whether grounds exist on which the development can be set aside as being seriously at variance with the Development Plan: Upham at [149].
[41] Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [80] per Bleby J.
[42] [2008] SASC 120 at [32]-[33].
If the variance is not serious, the decision-maker is within the scope of its discretion, which then must be exercised on a proper interpretation of the Code leading to an outcome that is not irrational or illogical on the material before it.
In Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor,[43] Kourakis J (as he then was) said:
It is well accepted that principles of development control are guidelines. An application for development must be assessed against those principles. On occasions, perhaps even commonly, developments will advance the objects of some parts of a development plan but be inconsistent with others. In that case, a planning judgment must be made as to the merits of the proposed development. Only if the development is seriously at variance with the Development Plan in the opinion of the planning authority is it necessary to refuse approval.
[43] [2010] SASCFC 15 (Kourakis J, White J agreeing) at [45].
Notwithstanding that the PDI Act may describe essentially the same task for the planning authority as that which occurred under predecessor legislation, it still remains to be considered how the structure and content of the Code operate on the performance of the task. The applicant submits that the more directive structure of the Code will yield fewer opportunities for divergence from the Code to be tolerated. This is consistent with the Court of Appeal’s recent recognition of the hierarchy of policy in Adelaide Hills Council Assessment Manager v Parkins.[44] However, the Code does not purport to address all circumstances or intrude upon the planning judgment, including as to approval of development that is at variance with the Code. It is still the case, as Kourakis J said in Lakshmanan:[45]
Even though Development Plans are generally comprehensive, they cannot be expected to expressly deal with all possible circumstances. There may be reasons arising from sound planning policy considerations or the general principle that development should not needlessly be curtailed which speak for or against approval but which are not expressly dealt with by the terms of a Development Plan.
In my view, there may be good reason not to apply a particular provision of a Development Plan if the departure from it is minor or if the departure will not materially compromise the planning objective which the provision is calculated to achieve. In either of those circumstances, there may be good reason not to burden the occupier of land with a restriction on his or her enjoyment of the land by a strict insistence on the provision. Moreover, an express prohibition on developments may, on occasion, so severely limit the use to which land can be put, through circumstances which were not foreseen at the time the provision was adopted, that good reason to depart from it may be found.
[44] [2023] SASCA 66 at [72].
[45] Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor [2010] SASCFC 15 (Kourakis J, White J agreeing) at [51]-[52].
Further, the hierarchy introduced in the Code does not convert the planning authority’s task into a mechanical exercise. It still must interpret the Code, bring experience to bear on the likely effect of the development in a variety of respects, and must balance and weigh the various factors that contribute to a lawful decision that planning consent should be granted in respect of a particular development.
What may be understood from the Code’s interpretation section is that the desired outcomes inform consideration of “the relevance and application” of a performance outcome. This recognises that the task is not a mechanical assessment of a development, seriatim, against each performance outcome without consideration of other overlapping or competing performance outcomes. Rather, it remains for the decision-maker an iterative weighing and balancing exercise guided by the Code.
The hierarchy of policy within the Code assists a decision-maker to resolve what would otherwise be inconsistent directions. The tension between policies applicable to a development, so-described by Kourakis J in Development Assessment Commission v A&V Contractors Pty Ltd,[46] has been eased by the provision of more sophisticated signals to the decision-maker as to how to resolve inconsistency. However, the task remains one that entails interpretation and professional judgment, and the legislature has not constrained the exercise of power further. It maintained the relationship between the Act and the primary policy document (the Code) against the background of the Court’s consideration of that relationship including those of Layton J in Lakshmanan:[47]
This Court has reinforced on many occasions that the provisions of a Development Plan are not to be construed like a statute. It is a planning document couched in the language of planning objectives and principles, rather than that of a legal obligation. As Debelle J indicated in Telstra Corporation Ltd v City of Mitcham, the plan uses language appropriate to the expression of goals and guiding principles rather than the expression of legal mandates.
[46] (2011) 109 SASR 276.
[47] [2010] SASCFC 15 at [5].
The applicant’s contention 24 requires that the Court conclude that an explanation for the grant of consent is that the Panel has failed to apply the Code’s hierarchy and has failed to give appropriate weight to higher-order policies. There is no direct evidence of such an error of reasoning in a general sense and contention 24 does not succeed at that superficial level. It falls to be considered whether, upon a closer examination of the specific policies in the Code, it must be inferred that the Panel has failed to properly construe the Code. However, a proper starting point for that task is one that reflects the analysis above.
Contention 21: The Panel’s treatment of the State Heritage Place Overlay
It remains to be considered whether the additional guidance in the signalling of hierarchy of policy in the Code has been shown to have been overlooked by the Panel in its consideration of the proposal against the Code. The applicant submitted that it must be inferred to have done so, particularly in relation to the effect of the State Heritage Place Overlay (“SHP Overlay”).
The SHP Overlay is an overlay policy that applies to the development. It takes precedence over general policies to the extent of any inconsistency. In Adelaide Hills Council Assessment Manager v Parkins,[48] Bleby J described the status of an overlay in the following terms:
If there is an inconsistency between planning consent policies for a particular development, the Code has a predetermined hierarchy as to which policy is to prevail. The provisions of an overlay will prevail over all other policies. A subzone policy will prevail over a zone policy or general development policy. A zone policy will prevail over a general development policy. Each of these policies in this hierarchy is informed by specific desired outcomes and performance outcomes.
[48] [2023] SASCA 66.

The applicant’s position is that because the Panel was required to treat the SHP Overlay as a policy occupying a superior role in the hierarchy of policies, any departure from its terms should give rise to serious consideration as to whether consent should be given. That proposition is only correct to the extent that it is understood to be contingent upon the existence of an inconsistency, and subject to the outer limit of the power which is serious variance.
The Desirable Outcome for the SHP Overlay is:
DO 1: Development maintains the heritage and cultural values of State Heritage Places through conservation, ongoing use and adaptive reuse.
The Performance Outcomes for the SHP Overlay are:
Built Form
PO 1.1: The form of new buildings and structures maintains the heritage values of the State Heritage Place.
PO 1.2: Massing, scale and siting of development maintains the heritage values of the State Heritage Place.
PO 1.3: Design and architectural detailing (including but not limited to roof pitch and form, openings, chimneys and verandahs) maintains the heritage values of the State Heritage Place.
PO 1.4: Development is consistent with boundary setbacks and setting.
PO 1.5: Materials and colours are either consistent with or complement the heritage values of the State Heritage Place.
PO 1.6: New buildings and structures are not placed or erected between the primary and secondary street boundaries and the façade of a State Heritage Place.
PO 1.7: Development of a State Heritage Place retains elements contributing to its heritage value.
Alterations and Additions
PO 2.1: Alterations and additions complement the State Heritage Place are sited to be unobtrusive, not conceal or obstruct heritage features and detailing, or dominate the State Heritage Place or its setting.
PO 2.2: Adaptive reuse and revitalisation of State Heritage Places to support their retention in a manner that respects and references the original use of the State Heritage Place.
Ancillary Development
PO 3.1: Ancillary development, including carports, outbuildings and garages, complement the heritage values of the State Heritage Place.
PO 3.2: Ancillary development, including carports, outbuildings and garages, is located behind the building line of the State Heritage Place.
PO 3.3: Advertising and advertising hoardings are designed and located to complement the State Heritage Place, be unobtrusive, be below the parapet line, not conceal or obstruct heritage elements and detailing, or dominate the building or the setting.
PO 3.4: Fencing and gates closer to a street boundary (other than a laneway) than the street elevation of the associated building are consistent with the traditional period, style and form of the State Heritage Place.
Land Division
PO 4.1: Land division creates allotments that:
(a)maintain the heritage values of the State Heritage Place, including setting
(b)are of a dimension to accommodate new development that reinforces and is compatible with the heritage values of the State Heritage Place.
Landscape Context and Streetscape Amenity
PO 5.1: Individually heritage listed trees, parks, historic gardens and memorial avenues retained unless:
trees / plantings are, or have the potential to be, a danger to life or property
or
trees / plantings are significantly diseased and their life expectancy is short.
Demolition
PO 6.1: State Heritage Places are not demolished, destroyed or removed in total or in part unless either of the following apply:
the portion of the State Heritage Place to be demolished, destroyed or removed is excluded from the extent of listing that is of heritage value
or
the structural condition of the State Heritage Place represents an unacceptable risk to public or private safety and results from actions and unforeseen events beyond the control of the owner and is irredeemably beyond repair.
Conservation Works
PO 7.1: Conservation works to the exterior and interior of a State Heritage Place and other features of identified heritage value match original materials to be repaired and utilise traditional work methods.
The applicant submitted that, in particular, Performance Outcome 1.6 was not satisfied but also that Performance Outcomes 1.1, 1.2 and 1.4 are relevant. The applicant submitted that Performance Outcomes 1 and 2 were not met because the development would self-evidently detract from the views to be had of Rymill House and that therefore heritage value would not be maintained by the development. The development was said to be inconsistent with Performance Outcome 1.4 because it is not consistent with boundary setbacks and the setting of Rymill House. It was said to be plainly inconsistent with Performance Outcome 1.6 because the function facility will be located between Rymill House and Hutt Street.
To consider these contentions further, it is necessary to consider the evidence relevant to the SHP Overlay issue.
The URPS reports
The planning consultant engaged by the respondent, Mr Rolfe of URPS, provided 2 reports.[49] The first, dated 6 December 2021, accompanied the development application. The report addressed the heritage issue by relying upon a 17-page report by Stevens Architects dated December 2021 and entitled “Heritage Impact Statement” (“the first Stevens report”).
[49] Affidavit, PMM-2, Agenda Report, URPS Report p 237 and PMM-11, Response by URPS p 519.
The first Stevens report in turn draws heavily from document entitled Conservation Plan of Rymill House, prepared in 1993 by Bruce Harry and Associates, (“the Conservation Plan”) to guide its conclusions. The first Stevens report says:[50]
[50] Affidavit, PMM-2, Agenda Report, Heritage Impact Statement, p 300.
The Conservation Plan states, (page 89):
“It is apparent from the assessment of Cultural Significance that the highest heritage value of ‘Rymill House’ resides in its rarity and completeness as an example of a large Queen Anne style Adelaide town resident, and as the ‘seat’ of a family who have played a prominent role in the development of Adelaide and South Australia.”
The Conservation Plan goes on to identify four general requirements to retain heritage value. Three of the general requirements relate to the physical fabric of the building, (externally and internally), arising from the changes to the fabric, loss of fabric or incompatible changes arising from building use or compliances. The fourth general requirement states, (page 90):
“Limiting the scale and extent of any development within the grounds, to preserve the associational links of the house with its setting, and buildings.”
The discussion of alternative uses in the Conservation Plan is coloured by development plan policy of the 1990s, nor does it anticipate the unique circumstances of the occupancy of the Constantine family and the activities of the Rymill House Foundation.
Nevertheless, while speaking against “substantial building development within the grounds”, (page 99), the Conservation Plan does anticipate the possibility of compatible new development stating that:
A restrained development on the Western (tradesmans, rear yard) side, sympathetic in its use of materials and building forms, should not be precluded. Such a proposal would need to be low scale, allow views of Rymill House from all major aspects (ie. from the Hutt Street/Flinders Street intersection, from the Coach-house), and not lead to the loss of any historic trees.”
The first Stevens report proceeds at 4.1.1:[51]
Consistent with this statement, the pavilion is located in the north-western corner of the site in a part of the site which was the former tradesman’s yard at the rear of the historic house. In the context of Rymill House itself, the pavilion is therefore very much a background element, located at the rear of the house and has little impact on the appearance of the grand mansion when viewed from the front (East Terrace) approach.
Furthermore, views of Rymill House from East Terrace and Finders (sic) Street are maintained, and sufficient views from Hutt Street are also maintained to enable the historic house to be viewed “in the round” as was intended by the architect. The important views, from the two adjacent street intersections (East and Flinders, Hutt and Flinders) and from the visitor’s approach from north-east, identified in the Conservation Plan as being fundamental to appreciation of the three-dimensional qualities of Rymill House are also maintained.
[51] Affidavit, PMM-2, Agenda Report, Heritage Impact Statement, p 303.
The first Stevens report concluded:[52]
[52] Affidavit, PMM-2, Agenda Report, Heritage Impact Statement, p 309.
The heritage impact of the proposed development at Rymill House is considered to be acceptable for the following reasons:
·The proposed development underpins the ongoing use of the place which in turn supports maintenance and conservation of historic Rymill House.
·The pavilion and the outbuilding do not physically impact on Rymill House or the former coach house.
·The pavilion building is compatible with the historic Rymill House and nearby former coach house because of its lower scale and simplicity of form and detailing that defers to the more substantial scale and visual complexity of the historic buildings.
·The materials and finishes of the pavilion appropriately differentiate new from old in a simple, subtle way.
·The pavilion is located in the most unobtrusive part of the site and the location identified for future development in the Conservation Plan.
·The ancillary outbuilding is discreetly located, low scale and unobtrusive with little material impact on the context and setting of the place.
·The proposed development does not impact on the important views, from the two adjacent street intersections (East and Flinders, Hutt and Flinders) and from the visitor’s approach from north-east, identified in the Conservation Plan as being fundamental to appreciation of the three-dimensional qualities of Rymill House.
·The important visual connection between Rymill House and the coach house when viewed in the Hutt Street landscape, and from within the site, is maintained.
·The use is compatible with the heritage value of the place.
The second URPS report was dated 22 March 2022 and was compiled on behalf of the respondent in response to the representations made following consultation on the development. In relation to heritage impact, the second URPS report observed that the project was considered acceptable by the first Stevens report, and by the Minister’s delegate. It annexed a letter from Stevens Architects dated 19 February 2022 (“the second Stevens report”) which said:
Any development involving a new building on the subject site will have an impact on the context and setting of the place. This does not mean that development should not occur, most developments involving a heritage place are likely to have some impact on the place.
The question that needs to be answered is whether or not the impact is acceptable in relation to the heritage value of the place. For reasons stated in the Heritage Impact Statement, I am of the opinion that, in this case, the impacts of the proposed pavilion and outbuilding are acceptable.
Location of the proposed pavilion
It is acknowledged that the proposed pavilion could be interpreted to be located between a secondary street boundary and the façade of a State Heritage Place. The word “façade” refers to an elevation of a building, most commonly but not exclusively, the front elevation of a building. In this case we are dealing with the rear elevation of the building.
In any event, I do not consider this aspect of the proposed development to be flawed because proposed pavilion is:
·Located at the rear of the historic house in what was the former tradesman’s yard.
·Located such that the principal and important views of the place as a whole and visual connections are maintained.
·Appropriate in form, scale, detailing and use of materials as described in the Heritage Impact Statement.
Views of the place and visual connection
While the proposed pavilion has some visual impact in the context of the house and the former coach house, the impact is most pronounced at close range. The fact that there is impact on some views in a relatively confined area does not negate an ability to appreciate Rymill House “in the round”.
Taking a broader view from vantage points on the western side of Hutt Street, from Flinders Street and from East Terrace the impact is much lower or even negligible. All of the available views of the place should be taken into account in considering this aspect of the proposed development.
As the HIS states (page 11)
Furthermore, views of Rymill House from East Terrace and Flinders Street are maintained, and sufficient views from Hutt Street are also maintained to enable the historic house to be viewed “in the round” as was intended by the architect. The important views, from the two adjacent street intersections (East and Flinders, Hutt and Flinders) and from the visitor’s approach from north-east, identified in the Conservation Plan as being fundamental to appreciation of the three-dimensional qualities of Rymill House are also maintained.
A representor raises concern about restriction of views from the upper storey window of the adjacent former Coach House. The Conservation Plan does say at page 99 that new development should allow views of Rymill House from the former Coach House.
Views of Rymill House could still be obtained from the eastern-facing, upper-storey window of the former Coach House and likely from within the courtyard of the former Coach House. Therefore, views from the southern-facing, upper storey window of the former Coach House towards Rymill House are not essential in maintaining the heritage value of the Place. Furthermore, there are many other vantage points that afford an understanding of the connection between the buildings.
The Heritage Delegate’s letter
The Heritage SA letter referred to in the second URPS report was signed by the Minister’s delegate Mr Queale, and dated 28 January 2022.[53] It was provided in response to a mandatory referral under s 122 of the PDI Act and reg 41 of the Planning, Development and Infrastructure (General) Regulations 2017 (SA). After formalities, the letter stated:
The subject land is affected by the State Heritage Place Overlay of the Planning and Design Code because it is a State Heritage Place.
The proposed development is considered to be acceptable in relation to the above State Heritage Place for the following reason/s.
·The proposed pavilion is located as recommended in the Conservation Management Plan for the Place, clear of building fabric and significant views of heritage value associated with the Place. Further, the scale, footprint and restrained use of detailing and materials minimises visual dominance within the setting of the State Heritage Place.
·The proposed location of the garage/outbuilding is clear of significant views of heritage value associated with the State Heritage Place – from the west, south and east of the site. The scale and low scale of the outbuilding further reduces adverse visual impact.
·The proposed lift has been located in ancillary areas of Rymill House and little fabric of heritage value will be altered. The screening of a ground floor window is reversible in the future. The proposed lift is also supported, as it allows flexibility in the ongoing use of the dwelling as a residence, ensuring continued maintenance of the place.
·Proposed doorway to the north elevation is supported, as the door utilises an existing window opening and will be mostly concealed from view, behind existing colonnade wall screening.
·Proposed landscaping framework for the site is complimentary to the era of the dwelling, providing a much-needed landscape setting for the State Heritage Place.
[53] Affidavit, PMM-2, Agenda Report, Letter to D Grieve from M Queale, p 446.
There followed in the delegate’s letter two proposed conditions for the development and some “general notes” that are not relevant to the proceedings.
The Agenda Report
The Agenda Report synthesised the heritage information set out above by describing the SHP Overlay as “achieved” and stated:[54]
[54] Affidavit, PMM-2, Agenda Report, p 45.
The Applicant and their representatives have used Rymill House Conservation Plan prepared by Bruce Harry and Associates in 1993 to inform the understanding of heritage value and guide decisions relating to the proposed development while being mindful of potential heritage impact.
The design of the pavilion is restrained with the new structure being a simple, glass box. The supporting structure will be concealed by glass curtain walls capped in a slender, minimalistic roof that projects and cantilevers at the southern end to form an uplifting and dramatic entry statement that frames views of the main western gable of Rymill House.
The prominence of Rymill House will be maintained together with the relative prominence of the former coach house in the Hutt Street landscape and the visual connection between Rymill House and the former coach house.
[Quoting from the Stevens report without explicit reference to it] The outbuilding is low in scale, simple in form and discreetly sited. It will not extend forward of the front façade of Rymill House as it is viewed from East terrace and is relatively concealed on the northern side. The impact of the outbuilding on the context and setting of Rymill House is minor and acceptable.
The Rymill House alterations and additions including a lift will have minimal impact on the historic fabric of the Place.
Heritage South Australia is supportive of the proposal as outlined in Section 7 of this report.
The applicant’s contentions regarding the heritage evidence and how the Panel should be inferred to have reasoned
The development did not comply with the SHP Overlay
The applicant argued that the development was not compliant with Performance Outcome 1.6 which concerns the position of the function facility between a façade of a State Heritage Place and a primary or secondary street boundary. It was not disputed that Hutt Street is a secondary street and that the pavilion would be sited between Rymill House and the Hutt Street boundary. The applicant submitted that “façade” should be understood to mean, in this context, any face of this building which was constructed to be viewed “in the round”.
Further, it was submitted that the views of Rymill House that can currently be enjoyed from various angles are diminished by the placement of the function facility. The appellant’s case places significant focus upon heritage value of the site attaching to the views of the building that are available. The development therefore fails to “maintain the heritage value of the State Heritage Place” as sought by Performance Outcome 1.2.
The Panel could not have found that there was good reason to depart from the SHP Overlay
Alternatively, the Panel must have concluded that there was good reason to depart from the SHP Overlay bearing in mind its status in the policy hierarchy. However, the applicant argued that the available ‘candidates’ for such a reason reveal that none could have appropriately been relied upon.
The first postulated candidate for consideration is that the Agenda Report observed that the Bruce Harry report described the proposed location of the building as the best of the available alternatives for the location of development on the site. The applicant contended that it would have been wrong for the Panel to have afforded the Bruce Harry report this much weight given that the proposed development extends beyond what was under contemplation when the Bruce Harry report was written. The roof overhang extends the development such that it encroaches much more significantly on the views of the building “in the round”.

A second candidate is the reliance upon the first Stevens report. The applicant submitted that the view expressed in that report, that the impacts of the function facility and the outbuilding are “acceptable”, should be ignored or given little weight because the writer did not express an opinion that was given by reference to the Code’s policies.
The third candidate is that the development was justified as an “adaptive reuse” of a heritage place. “Adaptive reuse” of a State Heritage Place is a Performance Outcome in the SHP Overlay. Adaptive reuse was referred to in the first Stevens report as a reason to be supportive of the development. It was said that “the function facility underpins the ongoing use of the Rymill House and grounds and supports the conservation and maintenance of the historic house. The use also provides opportunity for members of the public to appreciate, interpret and understand the historical place”.[55] The applicant submitted that the construction of a new, independent building on the grounds was not an “adaptive reuse” as the State Heritage building is not being reused. Further, it was suggested that there was no guarantee that the income from the function facility would flow to the conservation of Rymill House.
[55] Affidavit, PMM-2, Agenda Report, Heritage Impact Statement, p 305.
Finally, the applicant contended that the Heritage Minister’s delegate’s letter could not have provided a basis for the approval of the non-compliance with the SHP Overlay when the role of the Minister in the process is properly understood. That role was to decide whether to exercise a discretion to direct that the development be refused on heritage grounds. Anything beyond a mere exercise of the right of veto was liable only to distract the Panel because an expression of opinion was not made by reference to the policies in the Code.
The Panel merely adopted the Agenda Report
The applicant argued if it were accepted, as it must be, that the heritage policies had not been complied with without good reason, the Court should infer that the Panel was tempted into error by reliance upon the erroneous Agenda Report which described compliance with Performance Outcome 1.6 as “achieved”.
The interested party’s position on contention 21
Dr Manetta observed that the applicant’s objection to the development on the basis of non-compliance with Performance Outcome 1.6 was a matter that had been squarely before the Panel. It was addressed in the applicant’s written objection to the Panel. He invited the Court to conclude that there was no evidence of adoption of, or undue reliance upon, the Agenda Report by the Panel, but that there was evidence that the Panel considered the whole of the materials and representations, deliberated and reached its own decision. He further submitted that the content of the Stevens reports and the Heritage delegate’s report constituted appropriate evidence from which the Panel may have been satisfied that the heritage outcomes of the development were satisfactory and did not demand that consent be refused. Dr Manetta submitted that whilst the Minister’s delegate had a right under the Planning, Development and Infrastructure (General) Regulations 2017 to direct the Panel to refuse the application, the information conveyed outside of an exercise of that power of direction was, to the extent that it concerned heritage, nonetheless permissible for the Panel to use in its decision-making processes. It was observed that the applicant had not sought to have any heritage evidence adduced in the consultation process or in the proceedings and that the Court should be wary about accepting that it was evident that the heritage value of the place would be diminished by the development, when the evidence did not support such a conclusion.
Consideration of contention 21
The task of the Panel was to determine whether to grant planning consent, having regard to a range of policies in the Code including consideration of those which are found in the State Heritage Place Overlay.
It was open to the Panel to find that there was compliance or that non-compliance was not serious
The first issue is whether the Panel misdirected itself as to the meaning of “façade” and should be inferred to have reasoned erroneously to the conclusion that Performance Outcome 1.6 was achieved as a result. This argument must be rejected. It is possible that the Panel considered that Performance Outcome 1.6 was not contravened because it took the view that “façade” in Performance Outcome 1.6 means “front façade”. However, this is unlikely, particularly because the Stevens report observes that “façade refers to an elevation of a building most commonly, but not exclusively, the front elevation”.[56] A close examination does not yield a conclusive result as to whether the broader or narrower approach was intended by the words of Performance Outcome 1.6. The provision refers to secondary streets, suggesting that the façade referred to may not be that which is directed at the primary street. It also refers to “a façade” and not “the façade”. However, it would be wrong to determine the matter by strict reference to principles of statutory interpretation as the Code is not to be construed like a statute: Town ofGawler v Impact Investment Corporation Pty Ltd.[57]
[56] Affidavit, PMM-11, p 430.
[57] [2007] SASC 356, per Bleby J at [74].
In the end, the issue could not conclusively demonstrate an error on the part of the Panel. Whichever interpretation the Panel adopted, it was still available to the Panel to conclude that any variance was not serious. If the Panel accepted that Performance Outcome 1.6 contemplates multiple façades, which is more likely, it may have reasoned that all facades are not necessarily equal. The proposed development is in the location at that corner identified as “least obtrusive” and is not sited between the primary façade and East Terrace. To that extent it must have been open to the Panel to find that the Performance Outcome variance was not serious, or that the presence of multiple façades provided good reason to depart from the objective in this particular case.
Nor can the candidates for concluding that there was good reason to depart from the objective be dismissed.
In addition to the professional planning expertise that the Panel members brought to bear to the task, they had several sources of information and opinion available to them about the manner in which the proposed development would bear on the heritage value of the State Heritage Place. They had the Bruce Harry and Associates Conservation Plan from 1993, the Stevens report and the follow-up letter, and the views of the Heritage Minister’s delegate.
The applicant’s complaints that the heritage value of the State Heritage Place was diminished by the obstruction of views such as to demand a conclusion that the development is seriously at variance with the Code, cannot be sustained. It is not for the Court to enter the arena and express an opinion as to whether the development maintained or diminished the heritage value of the place. It is sufficient to dispose of this ground of review to observe that the Panel had available to it expert opinion as to the heritage impact of the development which was consistent with (and none inconsistent with) the outcome that the Panel reached when it brought its own expertise to the assessment.
The Panel was not bound to set aside the view of the Heritage delegate, or the Stevens reports, merely because those reports were not expressed in terms of whether the development was compliant with the Code. That was not its role. Those reports expressed professional opinion that was available to the Panel so that the Panel’s members might bring their own professional expertise to bear on the task of assessing the development against the Code.
I find that the Panel is more likely than not to have reached the conclusion that any variance from the State Heritage Place Overlay was not significant, and did not proceed to consider the justifications. That pathway was open to it. I find that a legitimate pathway to consent, from a heritage perspective, existed.
No evidence of adoption
I am not satisfied that the Panel adopted the Agenda Report without turning its mind to the material that lay behind it. There was no language of adoption in the decision. Adoption may be an inescapable conclusion from the circumstances of the decision-making, as in Carrascalao v Minister for Immigration and Border Protection.[58] That case concerned two applicants, each of whom had had the cancellation of their visas set aside by the Full Court of the Federal Court. The cancellations related to character tests. Within four hours of the Court’s decisions, the Minister made fresh visa cancellation decisions based on new briefs from the Department. The fresh cancellation decisions were challenged on the ground that the Minister had failed to give proper, genuine and realistic consideration of the merits of their cases.
[58] [2017] FCAFC 107 (Griffiths, White and Bromwich JJ).
However, adoption was not supported by the evidence in this case. The evidence relevant to the issue is in Mr Grose’s affidavit filed by the interested party[59] and from the decision itself. Mr Grose was the Assessment Manager for the Council and was present as an observer at the meeting at which the Panel made its decision.
[59] Exhibit IP2.
Mr Grose’s evidence that the Panel heard representations and deliberated for approximately 30 minutes is consistent with the Panel having considered the issues and is not evidence of adoption. More importantly, however, the Panel did not adopt the recommendation from the Agenda Report completely. It substantially changed one of the conditions that had been proposed for the planning consent to be provided. It is evident that the Panel brought its own mind to the exercise and to that extent, establishing an error in the Agenda Report does not provide a basis, without more, for the conclusion that the Panel’s reasoning was erroneous.
The applicant’s ground of review that the Panel has erred in granting consent because of non-compliance with the State Heritage Place Overlay is dismissed.
Contention 22: the City Living Zone
The applicant contended that the Panel reasoned by way of legal error, or in an illogical and irrational way, in its assessment of the development with respect to the policies relating to the particular zone for the development.
The development is proposed in the City Living Zone and, within that, the East Terrace Subzone.
The applicant drew the Court’s attention to the following Code provisions applicable to the City Living Zone:
Desirable Outcome 1
Predominantly low-rise, low to medium-density housing, with medium rise in identified areas, that supports a range of needs and lifestyles located within easy reach of a diversity of services and facilities that support city living. Small scale employment and community service uses contribute to making the neighbourhood a convenient place to live without compromising residential amenity.
Performance Outcome 1.1
Diverse housing and accommodation complemented by a range of compatible non-residential uses supporting an active and convenient neighbourhood.
DFO 1.1
Development comprises one or more of the following:
(a)Community facility
(b)Consulting room
(c)Dwelling
(d)Educational establishment
(e)Office
(f)Personal or domestic services establishment
(g)Place of worship
(h)Pre-school
(i)Recreation area
(j)Residential flat building
(k)Retirement facility
(l)Supported accommodation.
Land Use and Intensity
PO 1.2
Non-residential development located and designed to improve community accessibility to services primarily in the form of:
(a)Small-scale commercial uses such as offices, consulting rooms and personal or domestic services establishments
(b)community services such as educational establishments, community centres, places of worship, pre-schools, childcare and other health and welfare services
(c)services and facilities ancillary to the function or operation of supported accommodation or retirement housing
(d)open space and recreation facilities
(e)expansion of existing hospital and associated facilities.
PO 1.3
Non-residential development sited and designed to complement the residential character and amenity of the neighbourhood.
PO 1.4
Commercial activities improve community access to services are of a scale and type to maintain residential amenity, and primarily comprise:
(a)home-based business activities
(b)the reuse and adaption of existing commercial premises
(c)new businesses along street frontages with an established mixed use character, particularly the following
(i) within the Medium-High Intensity Subzone and fronting:
A.Gilles Street / Gilbert Street
B.Sturt Street
C.Carrington Street (west of Hurtle Square)
D.Archer Street
E.Ward Street
(ii) Tynte Street (west of Bevis Street)
Built Form and Character
PO 2.1
The number of dwellings is increased in the zone while maintaining residential amenity.
Mr Doyle KC submitted that the function centre fails to meet any of the City Living Zone performance outcomes. The development is not housing or accommodation and does not support housing or accommodation in the neighbourhood. The function facility will not be available for use by those living in the area.
The applicant submitted that the Court should infer that the Panel adopted the invitation in the Agenda Report to consider the development on the basis that it was non-residential land use which, whilst not explicitly sought in the zone, is complementary to the character and amenity of the neighbourhood.[60] The applicant observed that the Agenda Report thereby failed to distinguish between the focus on residential amenity, which is what is referred to in Desirable Outcome 1, over amenity in a more general sense. The applicant submitted that the fact that the development does not provide for any parking for function facility patrons leads to the unavoidable conclusion that the development in fact detracts from residential amenity.
[60] Affidavit, PMM-2, Agenda Report, p 39.
Further, it was argued that it is difficult to conceive of any “good reason” to authorise a departure from the performance outcomes unless it is based on an influence of the principles governing the neighbouring Capital City Zone, which would be in error. Buildings adjacent either side of the rear entrance of the subject site and facing onto Hutt Street, are in the Capital City Zone.
The interested party’s submissions on the zone outcomes
Consistent with the interested party’s limited role in the proceedings, Dr Manetta did not make specific submissions about this aspect.
Consideration of contention 22
At least two paths of reasoning were available to the Panel that were consistent with a lawful decision to grant consent to the development in respect of its coherence with the zone policies.
The first is that the extent of variance was not serious. The second was that the variance was capable of mitigation via the imposition of conditions on the grant of consent.
The conclusion that the variance was not serious can be reached by an assignment of low relevance and applicability to some of the zone policies. It was open to the Panel to attribute low relevance and applicability of some of the policies identified by the applicant.
It is evident that the sub-zone policies are directed primarily at the park lands to the east of the site. Increasing street level activity facing the park lands, and creating a greater level of activity fronting the park lands, are the focus of the performance outcomes. The development has no impact on those outcomes. In fact, it is evident that there are few conceivable developments within the boundaries of the State Heritage Place that would meet the zone or sub-zone policies but that did not adversely affect its heritage value. This underscores the need to respect the planning judgment and the decision-maker’s role in attributing different weight to the various policies by reference to the particular context.
The function facility may have been found by the Panel to be within the spectrum described by the Kourakis J in Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor:[61]
A development may merit approval on balance even if it is not expressly supported by a particular provision, whilst another, perhaps more exceptionally, may not warrant approval even if it is not inconsistent with any of the Development Plan’s express provisions.
[61] [2010] SASCFC 15 (Kourakis J, White J agreeing) at [47].
I find that on the evidence available to the Panel it was open to the Panel to concur with the Agenda Report’s conclusions[62] and to reason that:
·The location of the function facility at the rear of the site where it opens onto Hutt Street which has a “distinct commercial character” is appropriate;
·The impacts on residential amenity can be ameliorated with conditions;
·Once conditions are imposed, the development, though not promotional of the zone’s outcomes, does not constitute a significant variance from the Code.
[62] Affidavit, PMM-2, Agenda Report p 44.
The conditions imposed by the Panel were almost all addressed to the matters associated with residential amenity. Of the 12 conditions, the following were relevant to residential amenity:
·Measures associated with noise level monitoring (Condition 2)
·Limiting opening hours (Condition 3)
·Noise amelioration measures (Conditions 4, 5 and 6)
·Disability parking (Condition 7)
·Conditions imposed by the Minister for Heritage concerning the colour selections to reduce visual dominance of the function facility (Conditions 11 and 12)
It has not been shown that, in relation to the zone policies, the grant of consent was not lawfully open to the Panel to give.
Contention 23: the Landskāp plans
One component of the development proposal entailed landscaping of the existing grounds surrounding Rymill House. Landscaping is relevant to the heritage value of the site. The landscaping proposed is designed to introduce more formality into the existing garden. It is intended to include “expansive lawned areas, hedging, formal and informal geometry and gravel paths”, the retention of many of the established, mature trees and a small citrus garden.[63]
[63] Affidavit, PMM-2 Agenda Report, URPS Report, p 260.
The applicant complained that the URPS Report referred to landscaping plans by Landskāp to justify the landscaping aspect of the proposal, but that the plans were not in fact included with the documents available to the Panel.[64]
[64] Affidavit, PMM-2, Agenda Report, URPS Report, p 241.
The applicant contended that it was irrational for the Panel to approve an application that entails acceptance of material that was not before the decision-maker. The interested party informed the Court that the Landskāp plans were at some point intended to be appended to the URPS report but a late decision was made to incorporate the landscaping proposals into the architect’s report and the reference to separate plans in the report was not corrected.
The applicant submitted that there was nothing before the Panel that conveys how the landscaping is to be laid out. It was submitted that because the Panel’s consent is conditioned by a requirement that the developer comply with the proposal plans,[65] that the developer must comply with the text in the URPS report. However, it was argued that wording is sufficiently uncertain, and the issue sufficiently important, to render the Panel’s decision void for uncertainty.
Consideration of contention 23
[65] Affidavit, PMM-1, Condition 1 of the Planning Consent, p 11.

An approval that is conditioned by acts that lack finality, or lack particularity or certainty, may be void.[66] However, this consent does not lack the requisite particularity. There is adequate description of the landscaping to enable it to be envisioned and implemented. There are two contextual issues associated with this.
[66] The City of Unley v Claude Neon Ltd (1983) 32 SASR 329.
The first is that the landscaping is very much subordinate to the primary aspects of the development, being the construction of the function facility and outbuilding, and structural changes to the door and lift of Rymill House. There is no contention that any of these parts of the development proposal lack particularity.
In Kindimindi Investments Pty Ltd v Lane Cove Council & Anor,[67] the New South Wales Court of Appeal was required to consider whether several conditions imposed on the development were invalid for uncertainty. However, the Court was also required to consider a claim that some architectural drawings were imprecise in such a manner as to create an invalidity of the consent. This claim had been summarily dismissed in the Court below, and was upheld on appeal, on the basis that the imprecision did not lead to the possibility of a significantly different development.
[67] [2006] NSWCA 23.
The Court of Appeal (per Basten JA, with whom Handley JA and Hunt AJA agreed) said:
24    In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of “significantly altering the development in respect of which the application is made”: at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.
25    These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed.
26    In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced “to the satisfaction of Council’s Chief Town Planner”. Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application.
27    Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was “an important aspect of” the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development “which was beyond question of critical importance”. However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission.
28    Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.
So too must the conclusion follow in these proceedings. Despite there being some latitude in the layout of the landscaping by virtue of the precise diagrams of plant and path placement not being before the Panel, it could not be said that the development could be significantly different as a result. Firstly, the landscaping is insufficiently central to the overall development. Secondly, the description of the landscaping is sufficiently detailed to narrow the range of outcomes.
For this reason, the consent itself is not void.
Secondly, it is evident from the reports that the proposed landscaping is likely to add heritage value rather than diminish it. It is evident that the grounds have not been maintained in a manner that is sympathetic to the heritage value of the site, leading the first Stevens report to observe of the existing landscaping: [68]
Unfortunately, it does not provide a pleasing setting for the historic house.
[68] Affidavit, PMM-2, Agenda Report, Heritage Impact Statement, p 306.
The URPS report states that although the building and grounds were designed to be viewed “in the round”, the original garden layout and design are now lost, and the proposed landscaping will provide “an appropriate context and setting for the historic house”.[69] Hedging is proposed to separate the function facility from the house and the drawings[70] show the hedging between the function facility and the house to extend to the northern boundary to provide a partial visual barrier from East Terrace.
[69] Affidavit, PMM-2, Agenda Report, URPS Report, p 261.
[70] Affidavit, PMM-2, Agenda Report, Enzo Caroscio Architure plans, p 215, 216.
In short, there was evidence concerning the landscaping upon which it could be concluded that there was nothing proposed that was inimical to the heritage value of the place presented by the landscaping proposal.
Conclusion
The applicant has not established that the planning authority’s decision to grant planning consent for the development should be quashed for jurisdictional error or unreasonableness. It has not been established that the Panel could not, on the material before it, have properly reasoned to a conclusion that the development was not seriously at variance with the Code, and that a grant of consent was appropriate.
The application to quash the planning consent given in respect of development application 21039762 is dismissed.

[2023] SASC 107

21 July 2023