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Interpretation of The Planning And Design Code – Decision of the Full Bench of the ERD Court

Garden College v City of Salisbury [2022] SAERDC 10, delivered by a Full Bench of the Environment, Resources and Development Court on 24 June 2022 is the first substantive appeal to be determined under the Planning, Development and Infrastructure Act 2016 (PDI Act).

Ultimately dismissing the appeal, the Full Bench made several important findings on the interpretation of the Planning and Design Code (Code), including that –

  • the Code is an instrument of delegated legislation for which the same general principles as for the interpretation of Acts of Parliament apply;
  • the legal principles of statutory interpretation apply to the Code such that it is necessary to consider the “text, context and evident purpose” of provisions to interpret their meaning;
  • DTS/DPF provisions in the Code can serve both procedural and assessment functions and should be interpreted consistently for all purposes;
  • there is no presumption in favour of public notification and it is incorrect to view public notification as the ‘default position’;
  • A proper interpretation of the Code enables reliance on on-street parking to satisfy the DTS/DPF parking criteria;
  • the provisions of the Code which relate to setbacks are not necessarily restricted to the setbacks of “buildings” but elements of a development application which do not amount to “development” do not require consideration in assessing setback criteria under a DTS/DPF.

Background

Garden College (the School) filed an appeal pursuant to s202(1)(b)(ii) of the PDI Act against the decision of the City of Salisbury (Council) that an application for planning consent lodged by the School required public notification.

The proposed development was a code assessed, performance assessed, category of development which would be subject to notification unless it fell within a specified class of development excluded from public notification under the Code.

It was agreed between the parties that the nature of the development involved the alteration of or addition to an educational establishment, which was a class of development excluded from public notification under Table 5 of the General Neighbourhood Zone.

The question for the Full Bench was whether the proposed development was an exception to the exclusion from public notification. Per Table 5 of the General Neighbourhood Zone, the proposed development would be an exception to the exclusion if it did not satisfy General Neighbour Zone DTS/DPF 1.5.[1]

More specifically, to be excluded from public notification the proposed alterations and additions had to satisfy the following DTS/DPF criteria:

 (a) set back at least 3m from any boundary shared with a residential land use

 ….

 (d) off-street vehicular parking exists or will be provided in accordance with the rate(s) specified in Transport, Access and Parking Table 1 – General Off-Street Car Parking Requirements or Table 2 – Off-Street Car Parking Requirements in Designated Areas to the nearest whole number.

 The Full Bench determined that –

  • the proposed developed satisfied 1.5(a) as there were no elements of the proposed development within 3 metres of any boundaries shared with residential land use which were “development”; and
  • the proposed developed did not satisfy 1.5(d) as it did not include (or rely on) a specifically marked pickup/set down area as required by Table 1 – General Off-Street Car Parking Requirements.

Accordingly, the proposed development fell within the exception to the exclusion from public notification and was publicly notifiable.

Reasoning of the Full Bench

Interpretation of the Code

Considering previous decisions as to the correct approach to interpretation of Development Plans under the (now repealed) Development Act 1993, the Court held there are important qualifications to the ‘practical’ approach to interpretation, including:[2]

  • there is “no general principle that the construction of delegated legislation differs from the construction of primary legislation”;
  • where there is a range of possible meanings of a Code provision “the court must distil from the text of the relevant provision its intended meaning, having regard to its context and purpose”;
  • ‘practical considerations’ do not permit a rewriting of a statutory instrument to meet what a court considers to be a sensible and practical outcome”;
  • a court cannot, except in the clearest case, add or read in words that are not there where a literal meaning is capable of producing an intelligible result”;
  • it is not the case that there is “some general principle requiring laxity or flexibility in construing delegated legislation, or statutory instruments generally”.[3]

Setback requirement (DTS/DPF 1.5(a))

The elements of the proposed development which were within 3 metres of a boundary shared with a residential land use included carparking, a stormwater disposal system (interconnected pipes, pits and swales) and soft landscaping.

Pointing to the use of the word “development” in the relevant exception to public notification under Table 5, the Court held that the setback requirement under DTS/DPF 1.5(a) should be interpreted as being directed to the set back of elements which constitute “development” per the PDI Act definition.

While this interpretation does not confine the application of DTS/DPF 1.5(a) to the set back of “buildings”, it does not extend to any alteration or addition which is not strictly “development”. The definition of “development” under the PDI Act does not include ancillary elements which would not otherwise require separate consideration for approval. The elements of the development application within 3 metres of the boundary were not “development”.

Carparking requirement (DTS/DPF 1.5(d))

The Court considered whether the use of the phrase “off-street vehicular parking” in DTS/DPF 1.5(d) required consideration of all of the carparking rates specified in Table 1 – General Off-Street Car Parking Requirements (Table 1) or only the portion of Table 1 which referred to vehicle parking spaces located “off-street”.

Noting that the inconsistency is “potentially confusing and undesirable” the Court accepted that the expressions “on-site” and “off-street” are generally interchangeable within the Code.[4]

For assessment purposes, Table 1 becomes applicable pursuant to Performance Outcome 5.1 and the corresponding DTS/DPF under the General Development Policies, Transport, Access and Parking. Having regard to that provision the Court found the statutory purpose or object of Table 1 is:

That there is “sufficient on-site car parking” and access to other “specifically marked accessible car parking”, having regard to the needs of the proposed development including factors that may reduce the on-site rate.[5]

 The Court held that the reference to a specified “rate” in General Neighbourhood Zone DTS/DPF 1.5(d) should be interpreted consistently with the meaning of “rate” under PO and DTS/DPF 5.1 which required consideration of both the quantitative and qualitative aspects of Table 1. Consistent with the planning purpose of PO 5.1:

… the “car parking rate” in Car Parking Table 1 provides for a reduction in the total number of on-site car park spaces for a student pickup/set down area where there are spaces for such a specifically marked area or areas on the public realm within 300 metres of the site.[6]

Satisfaction of the car parking criteria in DTS/DPF 1.5(d) is a question of fact in all the circumstances. The Court held the proposed development did not satisfy DTS/DPF 1.5(d) as the traffic engineering report did not identify any specifically marked student pickup/set down areas.

However, it remains unclear exactly what is required for on-street car parking to satisfy the term “specifically marked accessible car parking places” and whether this may in fact be a reference to the provision of disabled access spaces.

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[1] DTS/DPF are the abbreviations used in the Code for “deemed to satisfy” and “designated performance feature”.

[2] Garden College v City of Salisbury [2022] SAERDC 10, [32] – [34].

[3] Citing 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361 at [45] per Basten JA.  

[4] Garden College v City of Salisbury [2022] SAERDC 10, [109].

[5] Garden College v City of Salisbury [2022] SAERDC 10, [107].

[6] Garden College v City of Salisbury [2022] SAERDC 10, [120].