Supreme Court of South Australia
(Full Court: Civil)
TOWN OF GAWLER v IMPACT INVESTMENT CORPORATION PTY LTD
[2007] SASC 356
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
3 October 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES
Appeal from ERD Court decision to grant provisional development plan consent – Council had previously refused consent – ERD Court reversed decision of Council finding proposal was sufficiently compliant – whether ERD Court erred in decision – whether compliance with particular principle of development control was mandatory condition precedent – relevant principles for interpretation of Development Plan – resolution of conflict between planning principles – whether good reason shown to depart from Development Plan – whether argument as to weight of evidence was question of fact or law on appeal.
Held: ERD Court did not err in judgment – decision considered relevant planning matters – findings made were available on evidence – good reason shown to depart from Development Plan – argument as to weight of evidence was question of fact not arguable on appeal.
Development Act 1993 (SA) ss 25, 33, 35; Roads (Opening and Closing) Act 1991 (SA) ss 3, 10, 24; Roads (Opening and Closing) Regulations 2006 (SA) reg 5; Environment Resources and Development Court Act 1993 (SA) s 30; Planning Act 1982 (SA), referred to.
City of Mitcham v Freckmann (No 2) (2000) 76 SASR 145, applied.
Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165; Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; The Strath Hub Pty Ltd v Alexandrina Council [2004] SASC 382, distinguished.
Impact Investment Corporation P/L v Corporation of the Town of Gawler [2007] SAERDC 16; City of Mitcham v Freckmann (1999) 74 SASR 56; Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd and Another (1985) 38 SASR 161; District Council of Angaston v Hamilton (1995) 64 SASR 110, discussed.
Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165; Maxwell v Murphy (1957) 96 CLR 261; Frankham v Adelaide City Council (2004) 89 SASR 372; South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35; Hassen v District Council of Murray Bridge and Anor (1984) 35 SASR 448, considered.
TOWN OF GAWLER v IMPACT INVESTMENT CORPORATION PTY LTD
[2007] SASC 356Full Court: Doyle CJ, Bleby and Anderson JJ
DOYLE CJ: The Environment, Resources and Development Court (“the Court”) reversed a decision by the Town of Gawler (“the Council”) refusing to grant provisional Development Plan consent. The Court granted the consent.
The Court found that the proposed development sufficiently complied with the relevant provisions of the Development Plan, with one exception.
The proposal did not comply with Business Zone Principle 8 which provides:
No development should occur within the zone until alterations to the roads and traffic signals depicted in Fig B/1 have been completed and other traffic management infrastructure constructed including but not limited:
§ acceleration/turning lanes adjoining the land on Main North Road;
§ modification of the open swale drain across Main North Road;
§ roadside landscaping and should works.
The proposed development is on land in the Business Zone. It is a substantial parcel of land, 3.68 ha in area. The land comprises most of that part of the Business Zone that is on the north-western side of Main North Road. As can be seen, Principle 8 is categorical. Figure B/1 indicates that Principle 8 has direct application to the subject land. That, no doubt, reflects the significance of the land in the Zone resulting from its size, its position adjacent to Main North Road and its substantial frontage to that road. While Principle 8 refers to the Zone as a whole, it is fair to say that it is of particular significance in relation to the subject land.
The Court granted provisional Development Plan consent, notwithstanding the fact that the works contemplated by Principle 8 had not been carried out, and would not be carried out as part of the proposal.
Mr Henry, counsel for the Council, submits that Principle 8 reflects a planning policy decision made “authoritatively” in the process of formulating the Development Plan. He describes it as a strategic policy decision, or as a higher order decision, meaning of a higher order than the various Objectives and Principles that are to be balanced in assessing the proposal against the Development Plan. Because it is a clear and applicable planning policy, Mr Henry submits that good or strong reasons had to be shown to justify any departure from it.
Mr Henry submits that the departure from Principle 8 that the Court approved is not justified by the Court’s conclusion that the development “sufficiently complied” with other provisions of the Development Plan. He submits that those other provisions are of a lower order of importance.
Mr Roder submits (and Mr Henry does not deny) that no provision of the Development Plan is mandatory. Mr Roder argues that Mr Henry wrongly gives Principle 8 a special status, as if compliance with this particular principle is a condition precedent to a grant of approval. Mr Roder accepts that the proposed development departs from Principle 8. He submits that the Court correctly considered and weighed all of the provisions of the Development Plan, the arguments for and against the proposal, and was entitled to make the planning judgment that it made. The Court was entitled to find, in all the circumstances, that the contravention of Principle 8 was acceptable as a matter of planning judgment.
The decision in this appeal turns ultimately on whether the departure from Principle 8 can be justified. The appeal requires a consideration of whether Principle 8 is to be accorded particular weight, such that it can be departed from only if good reason (narrowly described) exists to do so.
Background
I have had the opportunity to consider the reasons of Anderson J. As far as possible I will avoid repeating matters found in his reasons.
The proposed development involved the construction of four large separate buildings on the land. The land was to be used as:
Integrated bulky goods retailing development including a petrol filling station.
Substantial car parking was proposed. Traffic issues were a significant factor in assessing the proposed development. The movement of vehicles onto and from the site was a significant issue, as was the use of Main North Road and the impact of the proposed development on traffic movement and safety on Main North Road.
After considering the provisions of the Development Plan, and the evidence before it, the Court concluded (Impact Investment Corporation Pty Ltd v Corporation of the Town of Gawler [2007] SAERDC 16):
[68]The proposed development is sufficiently in compliance with the relevant provisions of the Development Plan regarding land use, building form, landscaping, stormwater disposal, advertising displays and carparking provision and lay-out. It is sufficiently in compliance with the provisions of the Development Plan concerning traffic convenience and safety and will have a minimal effect on adjoining roads. …
I consider that those findings and conclusions were open on the evidence. I am not persuaded that Mr Henry has demonstrated any error in them.
On the matters referred to, the Court had to make a planning judgment of the kind that it is best placed to make. This Court should be slow to interfere with such a decision. It should interfere only if clear error has been demonstrated. That has not been done.
Mr Henry made a particular attack on evidence given by an expert witness dealing with traffic volumes and movement, with safety, and in particular with the impact of the proposed development on traffic and traffic movements on Main North Road. Apart from criticising the evidence, and the Court’s conclusions, Mr Henry argued that the opinions of the expert were based on significant assumptions that were unreliable or not justified, and on matters or assumptions not sufficiently identified. I agree with Anderson J that having regard to the manner in which the issue was dealt with before the Court, Mr Henry cannot now raise objections to the basis of the expert’s opinion that were not clearly raised before the Court below. In effect, Mr Henry attempted to re-argue the merits of the expert opinion on traffic issues by challenging its basis and he did so in a manner not pursued in the Court below.
For those reasons, that part of the Court’s conclusion that I have set out above should be accepted.
That does not dispose of all issues concerning traffic. Principle 8 presented a difficultly for Impact Investment Corporation Pty Ltd (“Impact”) because, as the Court said at [61], the relevant government department did not intend, in the immediate future, to carry out the works contemplated by Principle 8. The Court was unable to make any finding as to when those works would be carried out. My impression from the Court’s reasons is that it was likely to be some time before they were carried out. As the Court said at [63], if Principle 8 were to be complied with, the development of the subject land would be delayed “to some uncertain time in the future”.
The Court considered two particular aspects of this conclusion. It was put to the Court that the proposed development would in fact delay the carrying out of the works, because it proposed diverting traffic away from an intersection just north of the site, and this diversion would have the effect of reducing the need to carry out the works contemplated by Principle 8. So the submission was that approving the proposed development could delay the works contemplated by Principle 8, and this was a factor against approval. As to that, the Court said at [65] that traffic arrangements should not be made to “accommodate funding pre-requisites” (that is, to support a case for the funding of the works), but should be “designed having regard principally to safety and convenience”, as the Court considered they were.
Another argument raised by the Council was that even if the relevant traffic signals were installed, and the other works carried out, the intersection with traffic lights would handle less traffic than it otherwise would, because of the manner in which the proposed development contemplated traffic would be handled. As to that, the Court said at [67] that if in future the work contemplated by Principle 8 was carried out, changes might then have to be made to the access arrangements to the site of the proposed development.
Principle 8
That leaves for consideration the weight to be given to Principle 8 in deciding whether or not provisional Development Plan consent should have been given. I set out above the first part of the Court’s conclusions, taken from paragraph [68] of its reasons. The balance of those conclusions is as follows:
[68]… It does not comply with Business Zone Principle 8. In all of the circumstances, however, on balance, it is supported by the Development Plan. It is more conducive to orderly and economic development to approve the proposed development now than to demand compliance with Principle 8 as a pre-condition with the effect of deferring the development of the land to some time possibly far into the future.
This conclusion was supported by some points made by the Court at [63]. There the Court said:
[63]… Rather, it [the Plan] is to be read as a series of provisions against which a proposal is to be assessed. Those provisions are to be weighed according to their relevance and terms. Few proposals comply with each and every relevant provision of the Development Plan. In this matter, we have a Business Zone with a clear desired future character statement. A range of specified business activities is sought in the Zone. The proposed development is consistent with the intention of the Zone, as discussed above. We agree with Ms Mellen’s assessment that it is largely consistent with those provisions of the Development Plan which deal with traffic safety and convenience. Mr Wohlstadt considered that the failure to comply with Business Zone Principle 8 would not be orderly and economic. Orderly and economic development is sought by the Development Plan (see Metropolitan Adelaide Objective 1). It seems to us, however, that orderly and economic development is best achieved by allowing development which largely conforms with the objectives of a zone even where the aspirations for public infrastructure expressed by the plan have not yet been fulfilled, rather than delaying such development to some uncertain time in the future when those aspirations have been fulfilled. Mr Wohlstadt argued that the creation of the Business Zone and Principle 8 are relatively recent and cannot be said to have been overtaken by subsequent events. The more relevant consideration is the question of whether and when the traffic signals in question have a prospect of being installed. Ms Mellen and Mr Morris agreed that the proposal would not create a requirement for traffic signals and they considered the traffic volumes likely to be generated by underdeveloped land now zoned residential and deferred urban. There was no resulting consensus as to when or, indeed, whether the warrant for the installation of the traffic lights would be met. The site is zoned Business, not Deferred Business. On an assessment of the proposed development against all of the relevant provisions of the Development Plan, the failure to meet Principle 8 is not fatal to the proposal.
Mr Henry attacked the conclusions in para 63 and para 68 in particular.
The reasons of the Court rest on a conclusion that the proposed development complied with relevant provisions of the Development Plan; was consistent with the intention or purpose of the zone; was consistent with provisions dealing with traffic safety and convenience; and the further conclusion that it was appropriate to allow a development which largely conformed with the objectives of the zone even though proposals for relevant “public infrastructure” had not been yet fulfilled. That was in the context of the Court also having concluded that the proposed development would not create a requirement for the traffic signals and other work contemplated by Principle 8, although that requirement might arise in the future when other underdeveloped land was developed.
Consideration of Submissions
I agree with Mr Henry that Principle 8 states a clear and applicable planning principle.
I note also that Mr Henry does not argue that the decision made by the Court is seriously at variance with the provisions of the Development Plan, and so one that the Court was not permitted to make.
I accept that Principle 8 provides clear guidance to a planning authority in relation to this particular site, and that that guidance should not be disregarded unless there is good reason to do so: Angaston District Council v Hamilton (1995) 64 SASR 110 at 117-118.
However, this proposition has to be applied with care. It is not to be used as a means of elevating Principle 8 to a unique status, to be applied ahead of all other Principles and Objectives. It remains necessary to bear in mind that Principle 8 is but one of a number of relevant Principles and Objectives found in the Development Plan. It calls for particular attention because it is applicable to this particular site, and is quite definite in its terms. What it calls for involves no exercise of judgment, no weighing of competing considerations.
The ultimate question is whether Principle 8 is to be given effect, or perhaps to put it better, is whether a consideration of Principle 8 leads to a conclusion that despite other matters, supporting a grant of provisional Development Plan consent, consent should be refused.
In his submissions, Mr Henry gave some examples of what might amount to good reason to depart from a principle such as Principle 8. He said that if a principle that embodied a policy was contradicted by another policy elsewhere in the plan, it will then be necessary to resolve that contradiction, and give precedence to one policy over the other. This case does not involve conflicting policies. It is a case of deciding the weight to be given to provisions of the Development Plan that, in their application to particular circumstances, are capable of supporting different outcomes: cf Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 167-169 Debelle J. He said there might be something unusual about a particular site that made a general policy inapplicable or inappropriate. He said that since a policy was propounded, events might have occurred that made the policy redundant, either generally or in the particular circumstances.
They are all, as Mr Henry says, illustrations of circumstances in which there might be good reason to depart from what appears to be a clear and applicable planning principle. But they are not, and cannot be, exhaustive.
At the risk of repetition, it remains the case that the task of the Court was to give appropriate weight to Principle 8, having regard to its clear application and its definite terms, but to have regard to Principle 8 along with the application of other Objectives and Principles. The decision to be made has rightly been described as a discretionary one. But as Debelle J said in City of Mitcham v Freckmann (1999) 74 SASR 56 at [21]:
[21]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.
I add that I also accept Mr Henry’s submissions that if, the proposed development proceeds, Principle 8 will largely be spent. There will be little work for it to do, having regard to the significance of the proposed development in the Business Zone.
However, I do not accept Mr Henry’s submission that the decision of the Court amounts to the Court substituting its view for the policy or judgment found in Principle 8. That submission assumes a mandatory operation for Principle 8, which Mr Henry acknowledges it does not have. If the proper application of Principle 8 requires the exercise of a planning judgment, taking into account all relevant considerations, it follows that the Development Plan contemplates that in a particular case a proper planning judgment might involve a departure from Principle 8.
These considerations merely illustrate the care that is required in considering Mr Henry’s submissions. The Court had to give appropriate weight to Principle 8. But the Court should not allow Principle 8 to displace other relevant Principles and Objectives, and should not depart from the usual approach to a consideration of the provisions of the Development Plan. What is significant about Principle 8 is its specificity and definite terms.
In the course of his submissions Mr Henry invoked the decision of Bleby J in Alexandrina Council v Strath Hub Pty Ltd [2003] SASC 382; (2003) 129 LGERA 389, subsequently approved by the Full Court in The Strath Hub Pty Ltd v Alexandrina Council [2004] SASC 382. The facts of the case are set out in the reasons of Anderson J. In the course of his reasons in that case, Bleby J said at [35]:
[35]Considering a development plan as a flexible, advisory planning policy document and as a practical guide for practical application, and not as a mandatory legal statute, is an acceptable and sensible way of approaching a development plan. However it does not enable the objective and the essential principles of development control to be ignored simply because the view is taken that the objective of the plan is unlikely to be achieved for various reasons. To consent to a subdivision of more than one-third of the area of the Zone without any certainty as to whether, where or when a golf course might be created is to compromise the whole objective of the Zone and to render that objective less likely to be achievable.
In the present case the Court has not ignored a relevant objective or principle of the Development Plan because it thought that the objective or principle was unlikely to be achieved. Rather, it has taken the view that adherence to Principle 8 should not delay what it concluded was otherwise an appropriate development having regard to other applicable provisions of the Development Plan. Nor did the Court approve a development which would compromise “the whole objective of the zone”. To the contrary, as the Court explained, the proposed development was in fact consistent with relevant principles and objectives. The issue for the Court was the significance of the proposals for traffic management reflected in Principle 8, and whether compliance with Principle 8 required a refusal of consent.
In short, it seems that the Court gave greater weight to the fact that the proposed development was consistent with the objectives of the business zone, than it did to a principle directed more to how those objectives were to be achieved, than to the objectives themselves.
In the Strath Hub case Bleby J went on to say at [39]:
[39]Nor is it any answer to ignoring the Objective and the Principles of Development Control to say that the Objective of the plan cannot be or is unlikely to be achieved. On the evidence before him it was not open to the Commissioner to make such a finding. But even if it were, it is not open to a planning authority to ignore the essential thrust and objective of the Plan. If the view is taken that for some reason the objective is not achievable, it is for the relevant planning authority to decide upon an amendment to the Plan after due preparation and consideration of a Plan Amendment Report in accordance with the requirements of Part 3 of the Development Act, and after the sort of consultation that the legislation requires. The perceived inability of the Development Plan to be carried out is no reason to ignore it in respect of a particular application for development.
Once again, I consider that these observations are distinguishable. In the present case the Court did not say that an objective of the Development Plan could not be achieved. In particular, it cannot be said that it ignored “the essential thrust and objective of the Plan”, if that can be taken to refer to what the Plan contemplated by way of development. What the Court did was to say that the proposed development was generally consistent with the relevant provisions of the Development Plan, did not give rise to circumstances that called for the works contemplated by Principle 8, and did not of itself compromise the ultimate implementation of Principle 8. I agree with Mr Roder that this is not a case in which it can be said that the decision that the Court made was one that called for an amendment of the Development Plan, if that decision was to be made at all. The effect of the Court’s decision was that in time circumstances making it appropriate to carry out the works contemplated by Principle 8 would occur, and that the carrying out of those works would not be compromised by the consent that the Court gave.
So, in the end, one comes back to the question of whether the Court erred in deciding, as it did, that a proper exercise of its planning judgment supported the grant of provisional Development Plan consent.
I agree with Mr Roder that there were solid reasons for a grant of provisional Development Plan consent, subject to the weight to be given to Principle 8. It can also be said that the evident purpose of Principle 8, sound traffic management and safety, was not compromised having regard to all the circumstances. But, on the other hand, as Mr Henry submits, Principle 8 reflects the planning principle that the traffic management arrangements it contemplates should be in existence before the development in question occurs.
Conclusions
I have given careful thought to the central parts of the reasoning of the Court. The planning judgment to be made is a difficult one. It is a case that might have gone either way.
The matters that have had a particular influence on me are these.
First, the use of “should” in Principle 8 indicates that it is not mandatory, but is directory only. It is true that it is applicable to this particular site, and is specific in its terms, but it is not mandatory.
The Court properly had regard to all relevant Objectives and Principles, giving due weight to each. It acknowledged, I consider, that Principle 8 was of particular significance.
The Court was satisfied that the proposed development complied sufficiently with provisions of the Development Plan other than Principle 8. It was satisfied that the proposal sufficiently complied with the provisions of the Development Plan bearing on traffic management and safety, matters particularly relevant when considering Principle 8.
The matters canvassed by Bleby J in the Strath Hub case are relevant to the present case. However, in my opinion there are material differences between this case and the Strath Hub case. I have identified them.
I do not agree that by its decision the Court has departed from a principle or policy that bound it. Acknowledging the significance of Principle 8 to the ultimate decision to be made in the present case, Principle 8 remained a matter to be considered in making the planning judgment referred to in Angaston District Council v Hamilton.
I consider that there were factors in the present case that were capable of amounting to a good reason to depart from the policy or principle reflected by Principle 8. This is not a case in which the Court can be said to have erred in the sense that it made an error of principle, coming to a decision for which, in the circumstances, there was no proper basis. The question is whether, when all matters are taken into account, the Court has erred in the planning judgment that it made.
I am not persuaded that the Court erred in arriving at its decision. It gave careful consideration to the relevant matters. In the end, it was persuaded that a departure from Principle 8 was appropriate. That is an issue on which minds can easily differ. A contrary conclusion could be justified. But I am not persuaded that the decision is erroneous, or that it demonstrates an error in the making of the planning judgment that calls for the intervention of this Court. And it is implicit in what I have said that I do not agree that the decision reflects an error of law or of principle: cf Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173-174 Debelle J. I do not agree that the Court misunderstood its task.
For those reasons, I would dismiss the appeal.
BLEBY J.
Introduction
The question in this appeal is whether the Environment Resources and Development Court (“the ERD Court”) was justified in allowing an appeal by the respondent, Impact Investment Corporation Pty Ltd (“Impact”) against the decision of the appellant, the Town of Gawler, which had refused provisional Development Plan consent for an “Integrated bulky goods retailing development including a petrol filling station” in the Business Zone depicted in the Gawler (CT) Development Plan. However, the appeal also raises important questions as to the role of a Development Plan in the planning process and whether and in what circumstances a planning authority may depart from what is a clear planning policy expressed in the Development Plan.
The Business Zone and the existing road configuration
The provisions of the Development Plan relating to the Business Zone include the Structure/Site Layout Plan Fig B/1. That plan assumes some importance in a consideration of the appeal and provides a convenient reference for a description of the Business Zone, its surrounding areas and the present road configuration affecting it. The plan is reproduced below.
For the purpose of these reasons I will assume that Main North Road where it traverses the Business Zone travels in a northeast/southwest direction and that Para Road, which forms the northern boundary of part of the Zone, travels in an east-west direction.
The Business Zone includes not only the area shown on the plan on the southwestern corner of the junction of Para Road and Main North Road (“the western portion of the Zone”), but also the seven allotments forming an approximately triangular area on the southern corner of the junction of Potts Road with Main North Road (“the eastern portion of the Zone”).
The existing road configuration is not as shown on the plan. The eastern end of Para Road is closed at Main North Road. Traffic travelling east along Para Road wishing to enter Main North Road must turn left to travel in a northerly direction along the Para Road extension for a short distance before turning right into an extension of Barnett Road (which travels north from Main North Road) which forms an uncontrolled T-junction with Main North Road at a point on Main North Road northeast of Potts Road but southwest of Morrow Road. Potts Road and Morrow Road form two other uncontrolled T-junctions with Main North Road from the southeast.
Main North Road is an arterial road under the care, control and management of the Commissioner of Highways. All other roads in the vicinity are under the care, control and management of the appellant.
The western portion of the Zone is, for all practical purposes, undeveloped, and may be treated, for present purposes, as vacant land. In the eastern portion of the Zone there is a petrol filling station and shop and a used car yard.
Creation of the Business Zone
The Business Zone is surrounded on the west, south and east by residential zones. Immediately north of the Business Zone and bounded on its south and west by Para Road and on its east by Barnett Road is St Brigid’s Catholic School. Immediately north of that is Gawler High School, while further north again but on the eastern side of the railway line is Evanston Primary School. Between Barnett Road and Main North Road is the Gawler Racecourse.
The Business Zone was created by amendment to the Development Plan on 17 February 2005. It was created out of what was then zoned residential. That amendment followed the preparation of a Plan Amendment Report and the procedure specified by s 25 of the Development Act 1993 (SA).
The proposed development
The general nature of the proposed development is described in other judgments. I will not repeat the details except where it is necessary to do so for the purpose of these reasons. Together with separate applications for provisional Development Plan consent for a fast food outlet and car wash in the northeast corner of the western portion of the Zone, the development appears to occupy the whole of the western portion of the Zone. Although intended to provide for separate retailing areas, the building location and car parking areas accord generally with those shown in Fig B/1 referred to above. In its original form the application indicated access and egress points and their respective directions generally as shown in Fig B/1. In particular, on the Main North Road frontage there was proposed to be left turn only ingress and egress at the southern corner of the development, and at the only other access point on Main North Road, left and right turn ingress but only left turn egress. For reasons which will become apparent, the application was amended to provide also for right turn egress from the central access point on Main North Road.
The application did not include the carrying out of roadworks to give effect to the road and traffic signal design contemplated by Fig B/1. However, it did include the provision of median strips and appropriate holding lanes on Main North Road to accommodate vehicles entering and leaving the premises.
Compliance with the Development Plan
Subject to one exception, the proposal complied with or did not vary substantially from all the objectives and principles of development control applicable to the Zone, whether metropolitan or council wide policies or policies applicable to the Business Zone. Compliance with the provisions of the Development Plan was such that the proposal otherwise warranted provisional Development Plan consent. Although it was argued that the development failed to comply with some more general principles relating to safe and efficient traffic movement into, from and around the site, these arguments were based on a criticism of the evidence in the ERD Court of the traffic engineer called by the developer. I agree, for the reasons given by the Chief Justice and by Anderson J, that it was open to the ERD Court to find that there was compliance with the relevant principles of development control in that regard, and that any attempted attack on that finding should fail.
That leaves the one exception referred to above with which the development did not comply. That was principle of development control No. 8 applicable to the Zone. The application of that principle is central to the resolution of this appeal.
The effect of principle No. 8 and Fig B/1
Fig B/1 is referred to twice in the section of the Development Plan relating to the Business Zone. In expressing the desired future character and use of the land, the Plan includes the following:
The design and layout of community access roads; car parking; entry points onto public roads; landscaping; and direction of traffic movements should be in accordance with the structure in Fig B/1.
Design and layout of community access roads will generally be the responsibility of the local council. That does not mean that such a provision as it relates to the functions of the council should not be included in the Development Plan. It is a plan which guides the council as well as intending developers. Provisions shown in Fig B/1 relating to car parking, entry points, landscaping and direction of traffic movements in and out of the site will generally be the responsibility of the developer.
The other observation which should be made about that provision and Fig B/1 is that it is highly specific to the western portion of the Zone and therefore to this particular development. It seems to say little, if anything, about future development of the eastern portion of the Zone.
As originally lodged, the application for provisional Development Plan consent complied in all respects with those requirements insofar as it was within the power of the applicant to do so.
The other reference to Fig B/1 is in principle of development control No. 8:
No development should occur within the zone until alterations to the roads and traffic signals depicted in Fig B/1 have been completed and other traffic management infrastructure constructed including but not limited:
-acceleration/turning lanes adjoining the land on Main North Road;
-modification of the open swale drain across Main North Road;
-roadside landscaping and shoulder works;
A number of observations need to be made about that principle. In the first place, it does not say anything about the nature of the development which should occur in the Zone. It is a principle which relates only to the timing of any such development.
Secondly, it is a principle which has obvious direct application to this development and to the development generally of the western portion of the Zone, whatever else it might say about other developments in the Zone. Despite its all-encompassing nature by the expression “No development should occur...”, it is most unlikely to apply to every possible development in the Zone. An example mentioned in argument was an application of the proprietor of the petrol filling station in the eastern portion of the Zone to alter the canopy of the service station – a relatively minor development. It is most unlikely that the principle would apply to that sort of development.
Thirdly, as this development incorporates almost the whole of the western portion of the Zone and more than 50% of the whole Zone, it is a principle which, if not observed in relation to this development, is unlikely to be of any further useful application in any subsequent application for development in the Zone.
Fourthly, it is important to understand what the principle requires if it is to be observed. By reference to Fig B/1, it requires the opening of Para Road at its junction with Main North Road, the closure, at least to south bound traffic, of the southern end of Barnett Road, the opening of a new section of Barnett Road to form a four-way intersection at the present T-junction of Morrow Road with Main North Road, the closing of Morrow Road and the installation of traffic signals at the new intersection of Main North Road with Para Road and Potts Road. Those works could only be undertaken by the appellant as the relevant authority under the Roads (Opening and Closing) Act 1991 (SA). As Main North Road is a road under the care, control and management of the Commissioner of Highways, the Commissioner is a “person affected” to whom notice of such a proposal would need to be given.[1] The process would require confirmation by the Minister.[2] The carrying out of those roadworks would therefore be dependent upon a decision of the appellant to proceed with the work and the approval of the relevant Minister, who would no doubt take into account any recommendations of the Commissioner of Highways as to whether it should occur at all, and whether any conditions, such as the installation of traffic signals at the new intersection, should be a condition of the approval.
[1] Roads (Opening and Closing) Act 1991 (SA), s 10(1). See also s 3, definition of “person affected”, and Roads (Opening and Closing) Regulations 2006 (SA), reg 5(a).
[2] Roads (Opening and Closing) Act 1991 (SA), s 24.
Fifthly, it cannot be said that this principle is in conflict with any other provision of the Development Plan. It does not prevent development of the Zone in the way the Development Plan intends. It merely purports to affect the timing of any such development in relation to the carrying out of certain roadworks.
Sixthly, as Mr Henry, counsel for the appellant, observed, it reflects a clear policy contained within the Development Plan directly applicable to a major development of this kind in the Zone. To approve a development of this scale in the western portion of the Zone is to act in contravention of a clearly stated policy of the Development Plan.
The role of the Development Plan in determining an application for provisional Development Plan approval
Section 33(1) of the Development Act provides that a development can be an approved development “if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of”, among other things, the provisions of the appropriate Development Plan.
The application for provisional Development Plan consent was lodged on 27 April 2005. The appellant made its decision refusing consent on 10 April 2006. With effect from 12 January 2006 s 35(5) of the Development Act came into effect. That subsection provides:
(5)A proposed development that does not fall into a category of development mentioned in a preceding subsection will be merit development (and any such development must be assessed on its merit taking into account the provisions of the relevant Development Plan). [Original emphasis]
Neither the word “merit” nor the expression “merit development” are defined or used elsewhere in the Act.
This development does not fall into a category of development mentioned in a preceding subsection. The question may arise as to whether s 35(5) had application to the decision made by the Council or whether it merely affected the procedure of the Council and was binding from the date of its operation.[3] It is not necessary to resolve what could be a very difficult question because, in my view, the subsection really adds nothing to and does not detract from the obligation of a planning authority under s 33 to assess the development against the provisions of the appropriate Development Plan.
[3] See Maxwell v Murphy (1957) 96 CLR 261 at 286 per Fullagar J.
It is well settled that a Development Plan is not to be construed or applied like a statute.[4] Telstra Corporation Ltd v Corporation of the City of Mitcham[5] was decided by a bench of five members of this Court. Four members of the Court agreed with the judgment of Debelle J who said:
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann’s College v Corporation of City of Adelaide [1999] SASC 479. 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: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ 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.[6]
[4] That does not mean to say that principles of statutory construction will be irrelevant in construing the meaning of the Plan: Frankham v Adelaide City Council (2004) 89 SASR 372 at 378, [2004] SASC 263 at [20], Besanko J.
[6] Ibid at 515-6, [25].
That case was decided under the provisions of the Development Act. However, care must be taken in applying dicta in cases decided under predecessors to s 33 of the Development Act cast in slightly different terms. One of the leading cases on the topic and one referred to by Debelle J in the passage quoted above is Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd & Anor.[7] In that case King CJ said:
The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned. The mandate “to have regard to” the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime. I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy and by Jacobs J in the present case. As was pointed out by Wells J in Hassen’s case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as “advisory”. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates. If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed “find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate”. That, however, is not its function, as the Full Court has indicated in Dorrestijn’s case. For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.
The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.[8] [Case citations omitted].
That case was decided under the Planning Act 1982 (SA) where the mandate to a Planning Authority was “to have regard to” the provisions of the Development Plan. The present obligation to assess a development against and to take into account the provisions of the relevant Development Plan does not confer quite the same width of unfettered discretion as the obligation, under the former Act, to make a decision having regard to the Development Plan. However, the second paragraph of the passage quoted above from the former Chief Justice is equally apposite to a consideration of development applications under the present Act.
[7] (1985) 38 SASR 161.
[8] Ibid at 187. O’Loughlin J concurred with the Chief Justice.
Consistent with the notion of a Development Plan containing relevant objectives and principles rather than stating legal obligations, most principles expressed in this Development Plan, and principle 8 is no exception, are cast in the language of what “should” occur and not what must occur. Even those principles which appear to be cast in mandatory terms are not necessarily mandatory in effect. For example, principle 28 relating to the Business Zone in this Development Plan provides:
A maximum wall height of 6.0 metres, with an expressed mansard roof element commencing at 5.0 metres and rising to 6.5 metres pitched at 45 degrees.
The principle contains no verb and might appear to be mandatory in effect. In fact, some parts of this Development do not comply with it. The wall heights are slightly higher than 6.0 metres. That does not mean that the Development cannot be approved because it fails to comply with that particular principle. Even a principle expressed in that form should be construed as a guide and objective which may be departed from if the departure is relatively insignificant and is desirable to accommodate some particular architectural or engineering feature of the Development without detracting from other relevant development objectives and principles.
There is a further reason why a principle like principle 8 cannot be read or construed as a mandatory requirement or as a necessary pre-condition to the granting of consent. Some provisions of s 35 of the Development Act are mandatory requiring that approval be given to a “complying” development as described in the Regulations or in the relevant Development Plan.[9] This development is not a complying development. Yet other provisions of the same section require that a development assessed by a planning authority as being seriously at variance with the Development Plan must not be granted consent.[10] The appellant did not so assess this development, and it was not suggested on this appeal that the development was seriously at variance with the Development Plan. Yet other provisions of the section require that a development described as “non-complying” in the relevant Development Plan must not be granted consent unless other certain stated conditions are fulfilled.[11] This was not a non-complying development. Those are the only provisions which dictate what a planning authority must do in certain circumstances. Any other type of development, which this one is, must be assessed in accordance with the requirements of s 33(1) and (now) s 35(5). That necessarily involves the exercise of a planning judgment in the light of the relevant provisions of the Development Plan in whatever language those provisions may be cast. It follows that principle 8, although of direct application to this development, cannot be treated as a mandatory pre-condition to the granting of provisional Development Plan consent in respect of this or any other development in the Business Zone.
[9] See s 35(1).
[10] See s 35(3).
[11] See s 35(3) and (3A).
How are the principles of the Development Plan to be applied?
The point is well made that to fail to apply principle 8 to this development is to fly in the face of a clear policy expressed in the Development Plan, and a policy which is obviously intended to apply to a development which occupies the whole of the western portion of the Business Zone, and which complies in general terms with the requirements of Fig B/1 as to desired building layout, car parking and traffic flow to and from the site. To allow this development to proceed before the external road works depicted in Fig B/1 are carried out will, in effect, render principle 8 nugatory. Yet to ignore the principle simply because it will not be complied with in the foreseeable future is to fail to assess the development against the Development Plan. Obviously one must consider a clear policy plainly affecting a particular development very seriously before departing from it. However, one must always remember that the Development Plan is a guide. I respectfully adopt what Debelle J said in District Council of Angaston v Hamilton:[12]
In determining the effect to be given to it, the Tribunal should have noted that principle 43 is not mandatory in its operation. It states, instead, a goal to be aimed at and the relevant planning authority must be guided by those standards in considering whether to grant planning consent: South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35. Principle 43 is expressed in terms which, though not mandatory, are directory and persuasive and 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: Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429 at 434.
[12] (1995) 64 SASR 110 at 117-8. See also South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35 at 38, Prior J.
However, as Debelle J noted, it is also well established that a plainly applicable principle should only be departed from for good reason. In considering most principles of development control a careful planning judgment will need to be exercised as to the degree of compliance with that principle or group of principles. But there will always be a question as to the weight to be given to clear expressions of policy, such as principle 8, evident in the objectives and principles of a Development Plan.
In order to determine whether a relevant Planning Authority or the ERD Court is justified in departing from a clearly expressed policy like principle 8, I consider that each of the following matters is relevant:
1The language of the principle or principles concerned – whether it is direct or contemplates some flexibility in approach;
2Whether the relevant principle is in conflict with some other applicable planning principle. That is likely to happen only rarely, in which case the more specific principle may displace the more generally expressed principle;[13]
3The evident purpose and objective of the policy expressed in the principle or principles concerned;
4The significance of the policy to this particular Development. The clearer the policy in its application to a particular development, the more compelling the reasons for departing from the policy will need to be;
5Where the policy contemplates possible degrees of compliance, the extent of the Development’s compliance with the policy;
6Consistency of the Development with other objectives and purposes of the Zone;
7Whether there is something unusual about the Development or the land on which it is to take place which makes the policy inapplicable or inappropriate;[14]
8Whether other events have happened since the Development Plan was adopted which make the policy redundant, either generally or in respect of this particular development;
9The probable effect of non-compliance with the policy on the planning objectives of the Zone; and
10Whether non-compliance with the policy in this case is likely to encourage other non-complying developments in the Zone.
[13] See Hassen v District Council of Murray Bridge and Onsoy (1984) 35 SASR 448 as explained in Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd and Anor (1985) 38 SASR 161 and Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165.
[14] See for example Paradise Developments Pty Ltd v Nature Conservation Society of SA (1990) 59 SASR 239.
In other cases there may be other relevant considerations. This list should therefore not be considered to be exhaustive but merely a useful guide.
Consideration of the relevant matters
It is convenient to consider in turn each of those matters I have listed in relation to this development. The first matter relates to the language of principle 8. Insofar as it concerns the timing of any development in the Zone, it is quite clear and direct. On the other hand, there is an indication of some flexibility in the degree of compliance with the principle before any development should occur given that the principle expresses a goal or objective in the sense discussed above. There is also some flexibility in the expression “other traffic management infrastructure” subject to inclusion of the three particular matters then set out in the principle.
As to any conflict between principle 8 with other principles contained in the Development Plan, it was not suggested that there was any conflict which required the application of this principle in favour of some other. Indeed it might be said that this principle is merely giving effect in some greater detail to other more general principles contained in the Development Plan relating to traffic management.[15]
[15] See, for example, Council wide objectives 1 and 4; Council wide principles 30, 31, 34, 35, 36, 37 and 40; and Zone objectives 3 and 4.
I turn to a consideration of the evident purpose and objective of the policy expressed in principle 8. As previously observed, it says nothing about the nature and form of the development to take place in the western portion of the Zone other than by way of assumption that such development will generally be in accordance with the Structure/Site Layout Plan Fig B/1. Its plain effect is to require that such development should not take place until the relevant road redesign and traffic signals are in place. It is not immediately apparent from other provisions of the Development Plan itself why that should be so. As I have already indicated, the Zone was created out of a residential zone with effect from February 2005 following the preparation of a Plan Amendment Report in accordance with the provisions of s 25 of the Development Act. That required widespread consultation, including comments from “any government Department or agency that has a direct interest in the matter”.[16] In this case, that included the Transport Services Division (“TSD”) of the Department for Transport, Energy and Infrastructure, having an obvious concern with the effect of creation of the Zone on Main North Road as an arterial road. In a letter dated 20 January 2006 from TSD to the developer’s traffic consultant, the author said of Fig B/1:
This plan was developed with input from TSD to ensure that any development of the site did not compromise the safety and efficiency of Main North Road.
[16] Section 25(5)(a).
In the material before the ERD Court there was little other explanation for the reason for principle 8 and the nature of the proposed road design. One can conceive a number of possible reasons for the redesign of the intersection. It might be associated with the amenity of the surrounding residential areas or associated with traffic movements related to schools immediately north of the Zone. It might be in order to preserve or enhance the entity of the Business Zone as a unit, including the eastern portion of the Zone, which, without the redesign, might appear to be severed from the western portion of the Zone. It might have been perceived as influencing traffic movements beyond the points of access to and egress from developments in the Zone, or it might have been in order to accommodate the increased traffic movements in and around the Zone generated by the development itself.
A perusal of other provisions of the Development Plan does not give much indication that any reasons other than the last one stated above motivated the inclusion of principle 8. The inclusion in Fig B/1 of such detail including the limited direction of travel into and from the site suggests that the primary purpose of principle 8 was directed to the safety and management of the increased traffic movements likely to be generated by the development itself.
The fourth matter for consideration is the significance of the policy to this particular development. The policy of principle 8 is plainly directed to this very development and probably to no other. It will therefore require compelling reasons to depart from it.
The fifth matter for consideration is the extent of compliance with the policy by the development. As it is also relevant to the eighth and ninth matters to be considered, it is necessary to give a little more background to the processing of the application.
As originally lodged with the appellant, the plan for the development, insofar as it provided for vehicle access to and egress from the site, complied in every respect with the intended traffic movements shown in Fig B/1 on both the Para Road and Main North Road frontages of the site. In particular, the main access point on Main North Road was proposed to be restricted to left-turn in, left-turn out and right-turn in, as shown on Fig B/1. It seems to have been assumed that the road reconfiguration would be undertaken, but the application was not dependent on that having occurred. The submission in support of the application included the following:
The nature of this application does not propose the upgrade of Main North Road. However, the subject site is not the only impetus for this upgrade. Within the broader context it is unreasonable to delay the provision of this facility, given the existing pressure on the town centre, while waiting for the relevant authority to action, fund and develop appropriate traffic controls.
It is understood that Council has begun investigative work into this issue in order to realise this principle and accordingly, the applicant is willing, if requested to do so, to make a contribution to the Council’s project.
It is also clear from documents supporting the application that the traffic proposals were developed in consultation with TSD.
The proposal also provided for acceleration and turning lanes on Main North Road and roadside landscaping and shoulder works as required by principle 8. Substantial drainage works had been carried out on the land beforehand, and any question of the modification of the open swale drain across Main North Road does not appear to have been an issue. There was, therefore, partial compliance with the requirements of principle 8, but not in relation to the proposed road reconfiguration.
No agreement was reached between the appellant and Impact for contribution to the road reconfiguration and in particular the cost of traffic signals at the proposed intersection. It became apparent to Impact and its advisers that the appellant was unlikely to undertake the reconfiguration from its own financial resources. This caused Impact, through its traffic consultants, to submit a redesigned proposal, initially to TSD. That proposal eventually became an amendment to the original application. It proposed continued left-in and left-out only access from Main North Road to the rear car park of the development. It proposed that access from Main North Road to the front car park would cater for all movements in and out at that point and a modified right turn lane into Potts Road.
A letter dated 20 January 2006 from TSD included the following:
Should Para Road be realigned to form the Main North Road/ParaRoad/Potts Road four-way intersection, TSD would require the intersection to be signalized from a safety and efficiency perspective. The signalized intersection would need to be designed and constructed to the satisfaction of TSD and at no cost to TSD.
The author of the letter expressed the understanding that the developer was not proposing the realignment of Para Road and the four-way signalized intersection as part of the development application. The letter continued:
In the event that Para Road is not realigned to form a four-way intersection, the following comments are provided on the access arrangements shown on Drawing No. 05-0262-DR1 dated 16 December 2005.
In principle, no objection is raised to the access on Main North Road to the front carpark. The traffic impact study shows that if a right turn out is allowed onto Main North Road at this access location, then the numbers generated are acceptable and traffic signals would not be required at the existing Para Road/Main North Road junction. Accordingly, TSD raises no objection to this access and the median opening and sheltered right turn lane catering for all movements.
In principle, no objection is raised to the southern access point on Main North Road on a left turn in, left turn out basis. The solid median must be extended further south past this access point.
Apart from the median opening for the front carpark, a solid median must be installed on Main North road along the whole frontage of this development.
Other incidental conditions were suggested.
It was therefore clear that TSD was satisfied with the amended proposal from the point of view of traffic management, subject to incorporation in the plan of certain median and other incidental controls.
In a letter from the appellant to Impact’s solicitors dated 24 February 2006 the council said:
It would appear that Transport Services Division’s comments to the applicants are at odds with the Development Plan. The Council will not support an application unless the signalized crossing is funded. The Council has no funds for this, and in any event, the primary responsibility for the arterial road is Transport Services Division. Advice from Transport Services Division is it will not commit funds to the signals.
In its formal response dated 31 March 2006 to the amended application, TSD repeated its earlier observations that in principle there was no objection to the proposed access onto Main North Road to and from the front car park catering for all turning movements and without the proposed road reconfiguration. It noted that current traffic volumes and direction with additional traffic generated by the proposal would not warrant the installation of traffic signals at the existing junction of Para Road with Main North Road.
It follows that, insofar as it was within the power of Impact to do so, the amended plan complied in all material respects with the requirements of Fig B/1 except for the prohibition of traffic turning right from the main car park onto Main North Road, and that subject to further median strip and incidental controls, the amended proposal met the requirements of TSD with respect to Main North Road without the road reconfiguration shown in Fig B/1.
The next matter to consider is the consistency of the proposed development with other objectives and purposes of the Zone. As mentioned above and on the evidence accepted by the ERD Court, the proposed development, when assessed against all other relevant principles and objectives of the Development Plan, warranted consent. In particular, it was proposed as an integrated development for the whole of the western portion of the Zone which was consistent with the objectives and purposes for which the Zone was created. If principle 8 was to stand in the way, it would sterilise for an indefinite period the development of the western portion of the Zone in the very way that the Development Plan contemplated that it should proceed and in a way which was entirely appropriate for the recently created Business Zone. Unlike other areas in a number of Development Plans, this was not a deferred Business Zone or one that was proposed for future but not present development.
The next matter to consider is whether there was something unusual about the development or the land in question which made the policy inapplicable or inappropriate. One would have to conclude that there was no such factor operating in respect of this development or the land on which it was proposed to be built which would render principle 8 inapplicable.
The eighth matter to consider is whether other events have occurred which render the policy behind principle 8 redundant. While nothing had happened to render the policy redundant, it had become evident that the policy enshrined in principle 8 was not necessary to achieve its evident principal purpose, namely to accommodate the increased traffic movements generated by the development itself. That had the effect of substantially lessening the impact of the policy on the proposed development.
The ninth matter to consider is the probable effect of non-compliance with the policy on the planning objectives of the Zone. While there was substantial evidence in the ERD Court as to the likelihood or otherwise of the installation of traffic signals at the present junction of Para Road with Main North Road, resulting in some uncertainty as to when any such signals might be installed, that question had little relevance to the implementation of the Development Plan, as the Development Plan involved the creation of a new signal-controlled intersection, rather than the maintenance of existing junctions. The evidence was that traffic signals would definitely be required if the intersection were created. There was nothing in the evidence to suggest that proceeding with the development would prevent or effectively impair the ability to proceed with the reconfiguration of the roads and traffic signals as shown in Fig B/1. It may entail some relatively minor road redesign which may prevent traffic turning right from the main car park into Main North Road. That would be consistent with principle 8 in any event. Generally speaking, major road reconstruction such as that contemplated would not be the responsibility of a developer, and certainly could not be controlled by the developer either as to nature or timing. That is a process which would be governed by the requirements of the Roads (Opening and Closing) Act. Therefore, while there is nothing to prevent the reconfiguration if the development is approved, the reconfiguration itself and its timing is very much in the hands of the appellant.
The final matter to be considered is whether non-compliance with the policy is likely to encourage other non-complying developments in the Zone. As I have already observed, the policy appears to be directed to this intended development and to that alone. While the effect of consenting to this development is likely to mean that principle 8 is unlikely to be an impediment to the approval of other developments in the Zone, such developments are likely to be relatively minor compared with the scale of this development, having little effect on traffic movement in the area. Of course any future development elsewhere in the Zone will have to be assessed against all relevant principles of the Development Plan, including principle 8. The fact that this development is approved is unlikely to act as an undesirable precedent and thus to erode the objectives of the Development Plan.
While the policy enshrined in principle 8 was directly applicable and relevant to this Development and was cast in reasonably clear and definite terms, it is evident that the policy behind the principle was primarily to ensure safe and efficient management of increased vehicles generated by the Development. There was sufficient compliance by Impact with those features of Fig B/1 which had application to Impact as the developer, including the provision of appropriate and necessary traffic lanes and median strips. From the point of view of both TSD and the justifiable findings made by the ERD Court, the provision that was made for control of vehicular traffic provided for safe and efficient vehicle movements in and around the Development. The Development otherwise warranted consent, and the strict application of principle 8 would defer indefinitely the Development of the western portion of the Zone in accordance with the objectives of the Zone contained in the Development Plan. It was clear that the desired future character of the Zone and future implementation of the Development Plan as shown in Fig B/1 would not be compromised by proceeding with the Development.
Viewed in this way it can be seen that, while principle 8 had direct application to the development in question, there were significant factors which, when properly considered, substantially diminished the significance of the principle itself. In my opinion their combined weight was sufficient to justify departure, as a matter of planning judgment, from the strict implementation of principle 8 if the relevant planning authority were to reach that conclusion.
Conclusion
As is apparent from what I have already said, whether to depart from the policy evident from principle 8 is ultimately a matter of planning judgment. There was ample justification for the ERD Court to reach the conclusion it did consistent with its obligation under the Development Act. On the evidence accepted by the ERD Court and which it was justified in accepting, there was sufficient compliance with the Development Plan concerning safe and efficient movement of vehicles in and around the Development. It was open to the ERD Court to conclude that allowing the development to proceed would be more conducive to orderly and economic development of the Zone than to prevent it by the application of principle 8. Of significance in justifying that conclusion was the finding that traffic safety and efficiency would not be impaired by the development proceeding with the present road configuration and that the development would not impair future implementation of the road configuration contemplated by the Development Plan.
Finally, I agree with other members of the Court that my decision in Alexandrina Council v Strath Hub Pty Ltd[17] and the decision of the Full Court of this Court on appeal[18] are distinguishable. The proposed development in that case compromised fulfilment of the very object and purpose of the Zone in question and could not be approved consistent with the provisions of the relevant Development Plan.
[17] (2003) 129 LGERA 389; [2003] SASC 382.
In my opinion the appeal should be dismissed.
ANDERSON J.
Introduction
This is an appeal from a decision of the Environment Resources and Development Court (the ERD Court). In that decision, the ERD Court granted Provisional Development Plan consent for an application lodged by Impact Investment Corporation Pty Ltd (Impact) pursuant to the Development Act 1993 (SA) (the Act). That application had previously been refused Provisional Development Plan consent by the Council of the Town of Gawler (the Council).
The ERD Court was satisfied that the proposal was sufficiently in compliance with the consolidated Development Plan dated 17 February 2005 for the Council to grant Provisional Development Plan consent. The ERD Court imposed a number of conditions.
The relevant planning provisions are contained in the Gawler (CT) Development Plan, which includes the Metropolitan Adelaide, Council Wide and Business Zone Objectives and Principles of Development Control, including objectives for centres and shops, the movement of people and goods in the business zone generally.
Background
The relevant land was initially zoned for residential development, but amendments to the Development Plan in February 2005 created a Business Zone for the land in which the proposed development is located.
Business Zone Principle of Development Control 8 became a central feature of the argument in the ERD Court and in this Court. It reads as follows:
No development should occur within the zone until alterations to the roads and traffic signals depicted in Fig B/1 have been completed and other traffic management infrastructure constructed including but not limited:
– acceleration/turning lanes adjoining the land on Main North Road;
– modification of the open swale drain across Main North Road;
– roadside landscaping and shoulder works;
Fig B/1 depicts the Structure/Site layout plan for the relevant land bounded by Main North Road and Para Road. It includes the subject land and provides for car parking and pedestrian linkages within the site. It also provides for vehicular access to and from the site. However beyond the site it provides for traffic signals at the main intersection on the north-east corner of the site, road closures further to the north, a road realignment again to the north, and finally a possible bus-only lane, again further north from the site.
Figure B/1 also shows that the boundaries of the Business Zone and the proposed development site essentially occupy the same area. It is a case of one site monopolising the land in the Business Zone. It is not a case where the Business Zone contains several sites, which makes the present situation relatively unusual.
The proposed development is described in Development Application No 490/297/05, as “Integrated bulky goods retailing development including a petrol filling station”. The land is a 3.68 hectare site at the corner of Main North Road and Para Road, Evanston Gardens. The site has a frontage to Para Road of approximately 152 metres, and a frontage to Main North Road of approximately 150 metres. It comprises Allotment 15 in DP 69706, Allotment 29 in FP 154030 CT 5611/156 and Allotment 30 in FP 154031 CT 5357/938, Evanston in the Hundred of Munno Para. The existing use of the site is vacant land.
The ERD Court described the relevant features of the locality as follows:
[15]Immediately to the north of the site, across Para Road, St Brigids Primary School is located. The Gawler High School is immediately to the north of St Brigids Primary School. North-east and east of the schools, the Gawler Racecourse is located. To the west and south of the site is a residential area, in a Residential 2 Zone, comprising mostly low density residential development. Immediately west of the site is a new, 16 lot residential development, which is fully developed, together with a drainage reserve. East of the site, across Main North Road, there is a small area of commercial activity in the Business Zone next to residential development in a Residential 1 Zone.
The ERD Court found at [16] that:
The most far-reaching effect, geographically, that the proposed development will have upon the surrounding area will be caused by the traffic which it will generate.
The issue in this appeal is the status of Principle of Development Control 8. The question is whether non-compliance with that principle should be regarded as preventing a grant of Provisional Development Plan consent for this development or whether the ERD Court was correct in its decision, which reversed the Council’s refusal to grant that consent.
The authorities are clear on the point that no provision of a Development Plan is mandatory. It follows that because compliance with the Plan is not mandatory, Principle 8 should not be regarded as a condition precedent to development generally.
A second point raised by the appellant involved the weight that was given to the evidence of the traffic experts in the ERD Court. Mr Henry, for the appellant, sought to argue that no weight should be given to the evidence of a traffic expert, Ms Mellen. He submitted that the evidence was so tainted with error that it could not form any proper basis for the conclusions reached by the ERD Court. He argued that this was a matter of law and that leave was not required.
The Council’s decision
The Council refused Provisional Development Plan consent. The reasons for the refusal were as follows:
(i)The proposal is at variance with the following provisions of the Gawler (CT) Development Plan (Consolidated 17 February 2005):
Metropolitan Adelaide
Objectives 25, 26, 47 and 48
Principles of Development Control 17, 20, 35, 36 and 38
These objectives and principles deal with the integration of the surrounding environment, land use and traffic management. In particular they focus on controlling the impact of advertising and also the movement of people and goods throughout zones and centres but not related exclusively to this zone.
(ii)Council-wide
Principles of Development Control 29, 30, 31, 32, 34, 35, 36, 110 and 112
Each of these principles is related either to the ease of movement of people, traffic and goods or to the design and scale of advertising within the Gawler (CT) Development Plan.
(iii)Business Zone
Principles of Development Control 1, 8, 9, 10, 15, 17, 22 and 36.
These principles are relevant to the character and use of the subject land, covering topics such as access, parking, stormwater drainage, building size and advertising.
The ERD Court considered that many of the matters raised by Council in its refusal were not relevant to the proposed development.
ERD Court decision
The ERD Court decided that the proposed development was sufficiently in compliance with relevant provisions of the Development Plan. The ERD Court found that the proposal did not comply with Business Zone Principle 8. The ERD Court found that on balance the proposal was supported by the Development Plan.
The ERD Court said at [68]:
The proposed development is sufficiently in compliance with the relevant provisions of the Development Plan regarding land use, building form, landscaping, stormwater disposal, advertising displays and carparking provision and lay-out. It is sufficiently in compliance with the provisions of the Development Plan concerning traffic convenience and safety and will have a minimal effect on adjoining roads. It does not comply with Business Zone Principle 8. In all of the circumstances, however, on balance, it is supported by the Development Plan. It is more conducive to orderly and economic development to approve the proposed development now than to demand compliance with Principle 8 as a pre-condition with the effect of deferring the development of the land to some time possibly far into the future.
The decision of the Council was thereby reversed.
The ERD Court granted Provisional Development Plan consent and imposed conditions relating to aspects of the proposal concerning amended plans that had been submitted to the ERD Court, car parking, vehicular access, fencing, landscaping, stormwater drainage, waste management, goods loading, the operation of plant and machinery, the carrying out of works, flood management and roadworks.
Business Zone Principle of Development Control 8 and Figure B/1
As previously indicated the consideration of Principle of Development Control 8 and Figure B/1 was the key issue argued by the appellant.
The Development Plan states:
PRINCIPLES OF DEVELOPMENT CONTROL
Design Techniques are one way in which a relevant principle of development control may be satisfied. There may be other appropriate design techniques that could be applied, depending upon local circumstances. It is not necessary for every proposal to satisfy every design technique.
1.Development should be consistent with the desired character and use of land for the Zone and with Fig B/1.
2.Development located within the zone to minimize impact on the locality. Reference should be given to the scale of the buildings; the intensity of use; the hours of operation; and generation of emissions.
Principle of Development Control 8 is set out above. Figure B/1, as indicated, covers the Structure/Site Development Plan but is principally concerned with traffic movement and ingress to and egress from the subject land.
Figure B/1 relates to traffic control proposals to the north as far as Barnett Road, which crosses Main North Road and becomes Morrow Road on the eastern side of Main North Road. Figure B/1 also provides for traffic signals at the junction of Para Road, Main North Road and Potts Road at the northeast corner of the relevant land. It further provides traffic ingress and egress details from the site to and from Para and Main North Road.
Traffic control measures regarding the proposed development are described in the ERD Court judgment at [10] as follows:
A two way vehicular access/egress to the site is proposed approximately half way along the Main North Road boundary. All vehicular movements are to be permitted at this access way and it is proposed that a right turn storage lane and left turn deceleration lane will be provided on Main North Road at the access. A left in and left out only vehicular access/egress is to be provided at the southern corner of the site onto Main North Road. This will give access to the delivery and staff parking area. An egress point for this area is also to be provided off Para Road, at the north-western corner of the site. It is intended that delivery vehicles associated with the service trade premises will enter the site off Main North Road and exit to Para Road. Next to the Para Road access point, it is proposed to provide a drop off and pick up area for the schools to the north. Further east along Para Road, a vehicular ingress/egress point is to be provided.
The existing situation is dealt with at [41]-[42]:
Main North Road bounds the site to the east, and Para Road bounds the site to the north. Para Road does not form a right angled T junction with Main North Road. Instead, it doglegs to the north to join Main North Road. The resulting junction is some distance to the north of where Para Road would join Main North Road in a T junction if it did not dog leg.
There is a right turn storage lane for drivers turning right from Main North Road into Para Road and a dedicated southbound lane for drivers who turn right onto Main North Road from Para Road. That dedicated lane merges with the other southbound lane about 60 metres further south along Main North Road. Potts Road is a road on the eastern side of Main North Road. Fig B/1 of the Development Plan is entitled "Business Zone Structure/Layout Plan" and shows, among other things, "anticipated development areas" on the site and changed traffic arrangements for the surrounding roads. Were Fig B/1 to be implemented, Potts Road and Para Road would form a four way intersection with Main North Road.
Right turn storage lanes let the traffic approaching a right hand turn off Main North Road onto Para Road merge to the right into a dedicated median lane, allowing vehicles to await the opportunity to safely make the turn without impeding the flow of through-traffic coming from behind.
Similarly a right hand storage lane allows the traffic turning right from Para Road onto Main North Road to seek refuge in a median lane after turning across the lanes of traffic coming from the right (south) and then merge with the flow of traffic coming from the left (north).
The future situation is described by the ERD Court at [45]:
If the proposed development proceeds, there will be an internal road, principally for delivery vehicles and staff cars, around the southern and western edges of the site. The general path of delivery vehicles will be by way of entry from Main North Road and exit to Para Road, though it will be possible to circulate in the opposite direction. The site is to have a main entry/exit to Main North Road, with a right hand turn in to the site from Main North Road and out of the site onto Main North Road at this point. A raised median is proposed for the centre of Main North Road to facilitate the vehicle movement in and out of the site. There is also to be an ingress/egress onto Para Road, again with right hand turns permitted in and out of the site.
ERD Court’s consideration of traffic safety and efficiency
It is clear that the ERD Court spent considerable time analysing the evidence before it from the experts relating to traffic safety. The court summarised the evidence in its reasons at [48] to [59].
In summary the ERD Court preferred the evidence of the expert Ms Mellen who had undertaken an analysis of the traffic flow, in particular a “critical gap analysis” which included entry onto Main North Road from the subject land. It was her opinion that the proposed development would have only a minimal effect upon the safety of traffic relating to the Para Road/Main North Road intersection. Another expert, Mr Morris, agreed with Ms Mellen’s forecasts for proposed traffic. The ERD Court accepted Ms Mellen’s evidence against the evidence of the expert called by the Council, Mr Wohlstadt.
Upon acceptance of that evidence the ERD Court was able to find that the proposed development was in accordance with Metropolitan Adelaide Objective 25(b) and Council-Wide Principle 29(c).
Objective 25(b) encourages the protection of existing and compatible arrangements between future land uses and a transport system.
Council-Wide Principle 29(c) recommends that development in a business zone should be located so as not to generate significant increases in traffic in adjacent residential areas.
The ERD Court reached the following conclusion after consideration of expert traffic evidence at [59]:
We are satisfied that in terms of traffic safety and efficiency the proposed development is sufficiently in compliance with Metropolitan Adelaide Objectives 25 and 26 and Centres and Shops Principle 17, Council Wide Principles 29, 30, 31, 34, 35 and 36 and Business Zone Principles 9, 10, 11 and 12.
The ERD Court took account of the fact that the Department of Energy and Infrastructure had no present intentions to alter the road alignments and provide traffic signals in accordance with Principle 8 and Figure B/1.
Having agreed with Ms Mellen’s assessment in relation to traffic matters the ERD Court found that her evidence was in accordance with the provisions of the Development Plan, which dealt with traffic safety and convenience.
The ERD Court analysed the situation by reference to the evidence of Ms Mellen and Mr Morris to the effect that the proposed development did not create any present need for traffic signals. The ERD Court was clearly mindful of the fact that the requirement for traffic signals was a projection into the future in relation to the likely traffic volumes which would be generated by the development of land zoned residential and deferred urban which is presently underdeveloped.
In its conclusion the ERD Court found the proposed development to be in compliance with the Development Plan in relation to the likely traffic volumes which would be generated by the development of land zoned residential and deferred urban which is presently underdeveloped.
Appellant’s argument
Mr Henry argued that Principle 8 means what it says, namely, that development on this particular piece of land cannot occur until certain alterations to the roads have been completed and traffic signals installed. Mr Henry did not contend that Principle 8 was mandatory. He argued that it was “directory, persuasive and that some good reason needs to be found before it can simply be brushed aside”.
Mr Henry argued that the Act contains the strategic policy relating to planning, which was the first stage in a two-stage process. The second stage was the process of development control. He argued that there was no ability for the Council or the ERD Court to revisit the strategic policy in the plan. Mr Henry argued that the precise topic, that is, the future development of this land, was investigated and that Figure B/1 and Principle 8 emerged from that investigatory process. He submitted that the relevant planning authority then had no ability to question the merit of the policies incorporated in the plan.
Mr Henry argued that there must be good reason to depart from the plan. The decisions relied on by Mr Henry are Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429 at 434 per Jacobs J and District Council of Angaston v Hamilton (1995) 64 SASR 110 at 117 per Debelle J.
In Angaston Debelle J said at page 117:
In determining the effect to be given to it, the Tribunal should have noted that Principle 43 is not mandatory in its operation. It states, instead, a goal to be aimed at and the relevant planning authority must be guided by those standards in considering whether to grant planning consent: South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35. Principle 43 is expressed in terms which, though not mandatory, are directory and persuasive and 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: Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429 and 434.
From those cases and the principle emerging from them Mr Henry argued that where there is a principle embodied in a plan which applies directly to a particular application, effect should be given to that principle unless some good reason for departure is made out. He argued that no such good reason existed in this case.
Mr Henry submitted that the ERD Court, in taking account of the evidence of the traffic experts, allowed that evidence to undermine the policy made clear in the plan and that therefore, in deciding that the traffic management was adequately dealt with, found that it was not necessary to comply with Principle 8. He argued that this was an approach which was not open to the court.
Mr Henry did not submit that this proposal was seriously at variance with the plan. His argument, it seems, was directed more to matters of planning principle and the fact that this land had been specifically catered for in relation to future development by the particular proposal embodied in Figure B/1.
Mr Henry submitted that the reasoning in Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389 was persuasive. The case concerned an area of land identified as a Residential (Golf Course) Zone. It comprised one objective that contained the principles of development control. Principle 2, stated the following:
Development of residential allotments should not occur unless integrated with the provision of an eighteen hole golf course.
In other words residential development had to occur contemporaneously with the development of a golf course. Principle 3 canvassed a similar condition:
Residential development should not be commenced north of the Stage 1 Development Line shown on Concept Plan Fig R (GC)/1 until all eighteen holes of the golf course have been developed and are in use.
Both of these principles were argued to be conditions precedent to development plan consent.
The proposed development did not initially incorporate a golf course and on that basis the Council rejected the application for Provisional Development Plan consent. The decision of the Council was reversed in an appeal to the ERD Court where the commissioner considered that a failure to include an 18-hole championship golf course was not fatal and that the proposal was not seriously at variance with the Development Plan. The presiding commissioner was persuaded by a separate development application lodged by the developer to incorporate a par 3 golf course on the site and the ERD Court therefore ordered that the proposal receive Provisional Development Plan consent.
That decision was appealed to the Supreme Court where Bleby J held that the granting of Development Plan consent seriously compromised the relevant Objective of the Development Plan in that the proposed development was not integrated with the 18-hole championship golf course. In his reasons Bleby J said at [35]:
Considering a development plan as a flexible, advisory planning policy document and as a practical guide for practical application, and not as a mandatory legal statute, is an acceptable and sensible way of approaching a development plan. However it does not enable the objective and the essential principles of development control to be ignored simply because the view is taken that the objective of the plan is unlikely to be achieved for various reasons.
His Honour found that the Commissioner had erred in the proper interpretation of the Development Plan in that he ignored or misconstrued the essential requirements for the zone, namely, the integration of an 18-hole championship golf course, to the extent that he had therefore failed to use it as a practical guiding tool.
Bleby J also said at [39]:
Nor is it any answer to ignoring the objective and the principles of development control to say that the objective of the plan cannot be or is unlikely to be achieved. On the evidence before him it was not open to the commissioner to make such a finding. But even if it were, it is not open to a planning authority to ignore the essential thrust and objective of the plan. If the view is taken that for some reason the objective is not achievable, it is for the relevant planning authority to decide upon an amendment to the plan after due preparation and consideration of a plan amendment report in accordance with the requirements of Pt 3 of the Development Act, and after the sort of consultation that the legislation requires.
The decision by Bleby J was upheld by the Full Court.
Mr Henry relied on the decision in Strath Hub for its parallels with this case and for Bleby J’s statements of planning principle. Mr Henry submitted that the proper course here was to amend the plan if the objectives could not be achieved in the short term.
Respondent’s argument
Mr Roder, for the respondent, relying on the concession made by Mr Henry, namely, that the proposal was not seriously at variance with the Development Plan, argued that it was open to the ERD Court to approve the proposal as a matter of planning judgment.
He then argued that specific principles, such as Principle of Development Control 8, do not diminish the significance and importance of general planning principles contained elsewhere in the plan.
He further pointed to the fact that the word “should” was used in Principle 8, and on its face that would tend to indicate that it was being used, as he put it, in a less emphatic way than the word “shall” is used in other parts of the plan.
Finally, he argued that it was not appropriate, as Mr Henry had suggested, that an amendment to the Development Plan was the preferable way of dealing with future development on the proposed land. Mr Roder submitted that you would really only expect that an amendment to the Development Plan would be proceeded with if the proposal was in fact seriously at variance with the plan and, of course, that is not the case in this matter.
In his submissions Mr Roder argued that the particular development proposed for the subject land has no connection with the general need for the traffic lights in Figure B/1. He submitted that the need for those lights is a future need if and when the development that is anticipated takes place in deferred residential zones to the east of the Main North Road. In short he put it that with knowledge that the surrounding land is going to be further developed for residential housing, and with the knowledge that traffic lights are not required at the present time, the ERD Court was applying appropriate planning principles in the decision it made regarding Business Zone Principle of Development Control 8 and the associated Figure B/1.
There is support in the evidence for Mr Roder’s contention. Mr Morris was a consulting traffic engineer and transport planner who gave evidence in this matter. In his report he deals with future traffic growth and says:
The future traffic growth on Main North Road, Potts Road and Para Road have been reviewed based on the continuation of residential development on and adjacent to Potts Road. This development is in existing residential zones in the current Development Plan.
He goes on to say later in his report:
Based on the results of the Evanston Gardens/Evanston South Transport System study, it is predicted that the traffic volume on Potts Road could increase to approximately 3,600 vehicles per day by 2011. The peak hour volumes on Potts Road would therefore be approximately 360 vehicles per hour, with approximately 300 vehicles anticipated to exit or enter Potts Road during the morning or evening peak period respectively.
He then attaches as an appendix to his report the future predicted turning movements at the intersection of Main North Road, Potts Road and Para Road.
Apart from his report, which formed the basis of his evidence in chief, he also said in evidence, when discussing the survey figures regarding vehicle use of the intersection:
These figures in our estimation of traffic volumes on Potts Road and Para Road are a result of a structure plan developed with the Town of Gawler so it included intensive modelling of the intended future development of Evanston, South Evanston Gardens and Evanston Park I think it is on Potts Road. I believe that we have got a good indication of what the traffic volumes will be as a result of that development in the future.
Mr Roder went on to submit that effectively all the plan says is that there should be a realignment incorporating traffic lights at some future stage.
In its decision the ERD Court also commented on the evidence provided by road traffic experts in respect of the status of Principle 8. At [63] it said:
Mr Wohlstadt argued that the creation of the Business Zone and Principle 8 are relatively recent and cannot be said to have been overtaken by subsequent events. The more relevant consideration is the question of whether and when the traffic signals in question have a prospect of being installed. Ms Mellen and Mr Morris agreed that the proposal would not create a requirement for traffic signals and they considered the traffic volumes likely to be generated by underdeveloped land now zoned residential and deferred urban. There was no resulting consensus as to when or, indeed, whether the warrant for the installation of the traffic lights would be met. The site is zoned Business, not Deferred Business. On an assessment of the proposed development against all of the relevant provisions of the Development Plan, the failure to meet Principle 8 is not fatal to the proposal.
Mr Roder distinguished the Strath Hub case on factual grounds. He said, “In the Hub case it was found the departures were so extensive because we had a zone whose principal objective was a golf course and we weren’t getting a golf course”.
He identified the Strath Hub case as an example of what could be deemed “seriously at variance” on a scale where its antithesis is “compliance”. Matters that fall within the middle ground, he said, require the exercise of planning judgment and are matters for the ERD Court. Mr Roder submitted that the issue of compliance in this matter fell within the middle ground.
Resolution of planning issues
There is in this appeal obvious conflict between relevant planning concepts. On the one hand the appellant contends that the principle embodied in Principle 8 and depicted in Figure B/1 is part of the strategic planning policy and that therefore there must be good reason to depart from it. Unless there is good reason to depart from that principle, the appellant argues that the implementation of that policy effectively creates a condition precedent to the approval of any proposed development on the subject land. One planning authority, the Council, took that view and refused the proposal.
On the other hand the respondent points to principles of good planning as involving the ability to currently use the land for the purpose for which it is zoned. It is not without significance that this land was rezoned as recently as 2005.
In the present case, prior to February 2005 the development site was zoned for residential purposes and was largely vacant and undeveloped land. In February 2005 a Plan Amendment Report received ministerial approval and rezoned the land to be subject to a set of planning policies for a Business Zone.
The respondent argued that to allow the land to remain vacant for several years in an undeveloped state, would render the land sterile and that does not accord with good planning. The ERD Court decided, for the reasons it gave, that this was the proper planning approach.
It seems to me that both of these planning objectives are available as appropriate and considered conclusions from the set of facts which confronted the ERD Court. This Court should be reluctant to interfere with the planning judgment of the expert planning tribunal. That is, of course, subject always to the proviso that if an error can be shown to have occurred, the judgment of the planning tribunal can be set aside.
Debelle J in City of Mitcham v Freckmann (No 2) (2000) 76 SASR 145 at 148 said:
It will interfere only where the court has made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional … This Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles, Ampol Road Pantry Pty Ltd v Brighton City Corporation (1993) 62 SASR 165 at 173.
It is my view that no error has been demonstrated in this case. The appellant did not seek to argue in this appeal that there was no room for approval for any development on this land, come what may, unless and until the criteria set out in Principle 8 and as depicted in Figure B/1 were implemented. The appellant argued, as I have already indicated, that good reason must be shown to depart from that principle.
The ERD Court, in my view, properly considered all relevant planning considerations. It considered in some depth matters relating to traffic movement and safety in and around the site, and analysed the evidence of the expert witnesses. The ERD Court made findings based on that evidence, and it cannot be said that the findings made were findings that were unavailable on the evidence.
In particular, the ERD Court analysed Principle 8 in detail. I agree with the ERD Court’s analysis and the conclusion that the failure to meet Principle 8 should not be fatal to the development proceeding. The ERD Court found that the development was supported by the Development Plan generally.
In my view this case is distinguishable from the Strath Hub decision. This is not a case, as was Strath Hub, where an objective in a plan was unlikely to ever be achieved. The ERD Court in this matter did not take that attitude. This was not a case where the development could never proceed because of Principle 8. It was a development held in limbo until the volume of traffic reached the required level for “the warrant” to be activated. “The warrant” is a set of requirements in the administrative system that must be met to secure funding for the provision of traffic signals. In this case it involves a consideration of traffic volumes, the number of traffic accidents and the incidence of personal injury.
The appellant’s argument would require this development to remain in abeyance until traffic conditions were sufficient to justify “the warrant” to provide traffic signals. That warrant would then become operative, unrelated to factors relating to the proposed development, but dependent upon traffic generated in the future in the wider locality surrounding the proposed development when residential expansion reaches a certain point.
When the zone was amended in 2005 it provided for a specific zoning, not for a deferred zoning to take effect some time in the future. The interpretation urged by the appellant would require the land to remain sterile in relation to this particular development, and in fact in relation to any proposed development, unless and until the traffic regime proposed in Figure B/1 is finally put into place. This will be, at the earliest, many years hence.
In my view good reason has been demonstrated to depart from Principle 8 as illustrated by the judgment of the ERD Court. I would therefore dismiss the appeal on this ground.
Evidentiary argument
Mr Henry also argued that the decision reached by the ERD Court was a decision that was not properly available on the evidence. He sought to justify this as a ground of appeal based on a question of law.
Mr Henry sought to argue that there was no evidentiary basis for the analysis of traffic volumes made by the expert witness Ms Mellen. His argument was that the failure to provide the basis for an expert opinion means that no weight can be given to that evidence and that therefore it should have been excluded.
An appeal from the ERD Court lies as of right on a question of law and with permission on a question of fact. See s 30(2) of the Environment, Resources and Development Court Act 1993 (SA). No leave was sought in this matter. Mr Henry’s submissions were framed in terms of the weight to be attributed to the evidence, namely, on his submission that the evidence was of such little weight that the ERD Court was wrong to act upon it.
In my view this argument does not raise a question of law. It is an attempt to review the evidence that was put before the ERD Court, and as such leave to appeal is required. The argument that was put by Mr Henry in this Court was not put in those terms to the ERD Court. It involved a review of the specific evidence of traffic engineers. In my view the court should not allow the argument because, first, it was a review of the evidence and involved only questions of fact, and secondly, it was not argued on that basis in the court below. I would dismiss this ground of appeal for those reasons.
Conclusion
For the reasons expressed I would dismiss the appeal.
- AGLC
- Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356
- Case
- [2007] SASC 356
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the ERD Court had erred in its decision and whether compliance with Principle 8 was a mandatory condition precedent. The court also had to consider the relevant principles for interpreting the Development Plan, resolve any conflicts between planning principles, and determine whether good reason existed to depart from the Development Plan. The court further had to assess whether the argument regarding the weight of evidence was a question of fact or law on appeal.
The court found that the ERD Court did not err in its decision and had considered the relevant planning matters. The court acknowledged that Principle 8 was of particular significance but not mandatory, and that the ERD Court had given due weight to all relevant Objectives and Principles. The court concluded that the proposed development complied with the Development Plan, and there were factors capable of amounting to a good reason to depart from Principle 8. The court further found that the argument regarding the weight of evidence was a question of fact, not law, on appeal.
The final orders of the court were that the appeal be dismissed with costs. The court found that the ERD Court did not err in its judgment and had considered relevant planning matters, and that good reason existed to depart from the Development Plan. The argument regarding the weight of evidence was a question of fact, not law, on appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: ANDERSON J
The reasons of the Court rest on a conclusion that the proposed development complied with relevant provisions of the Development Plan; was consistent with the intention or purpose of the zone; was consistent with provisions dealing with traffic safety and convenience; and the further conclusion that it was appropriate to allow a development which largely conformed with the objectives of the zone even though proposals for relevant “public infrastructure” had not been yet fulfilled. That was in the context of the Court also having concluded that the proposed development would not create a requirement for the traffic signals and other work contemplated by Principle 8, although that requirement might arise in the future when other underdeveloped land was developed. Consideration of Submissions I agree with Mr Henry that Principle 8 states a clear and applicable planning principle. I note also that Mr Henry does not argue that the decision made by the Court is seriously at variance with the provisions of the Development Plan, and so one that the Court was not permitted to make. I accept that Principle 8 provides clear guidance to a planning authority in relation to this particular site, and that that guidance should not be disregarded unless there is good reason to do so: Angaston District Council v Hamilton (1995) 64 SASR 110 at 117-118. However, this proposition has to be applied with care. It is not to be used as a means of elevating Principle 8 to a unique status, to be applied ahead of all other Principles and Objectives. It remains necessary to bear in mind that Principle 8 is but one of a number of relevant Principles and Objectives found in the Development Plan. It calls for particular attention because it is applicable to this particular site, and is quite definite in its terms. What it calls for involves no exercise of judgment, no weighing of competing considerations. The ultimate question is whether Principle 8 is to be given effect, or perhaps to put it better, is whether a consideration of Principle 8 leads to a conclusion that despite other matters, supporting a grant of provisional Development Plan consent, consent should be refused. In his submissions, Mr Henry gave some examples of what might amount to good reason to depart from a principle such as Principle 8. He said that if a principle that embodied a policy was contradicted by another policy elsewhere in the plan, it will then be necessary to resolve that contradiction, and give precedence to one policy over the other. This case does not involve conflicting policies. It is a case of deciding the weight to be given to provisions of the Development Plan that, in their application to particular circumstances, are capable of supporting different outcomes: cf Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 167-169 Debelle J. He said there might be something unusual about a particular site that made a general policy inapplicable or inappropriate. He said that since a policy was propounded, events might have occurred that made the policy redundant, either generally or in the particular circumstances.