BLL Article - Land

First Court of Appeal decision on the Planning, Development and Infrastructure Act 2016

On 15 June 2023 the Court of Appeal delivered judgment in Adelaide Hills Council Assessment Manager v Parkins & Anor [2023] SASCA 66.

This was an appeal by the Adelaide Hills Council from a decision of Commissioner Dyer in the Environment, Resources and Development Court (ERD Court). The ERD Court decision was one of the first planning merits appeals under the Planning, Development and Infrastructure Act 2016 (PDI Act) dealing with assessment of a development application against the Planning and Design Code (Code). It is the first time the PDI Act has been considered by the State’s highest Court.

The Court of Appeal dismissed the appeal and reinforced what have become established principles on the interpretation and application of the Code.

Facts and history

The applicant for consent had lodged an appeal in the ERD Court against a refusal of the Council’s Assessment Manager to grant planning and land division consent for a proposed land division (1 into 2) at 16 Glenside Road, Crafers (Land).

The proposed division contemplated:

  1. a site area materially less than the minimum area expressed in one of the Designated Performance Features within the Adelaide Hills Subzone for one of the proposed allotments; and
  2. a battle-axe allotment for the other proposed allotment.

The Land was within the Rural Neighbourhood Zone and the Adelaide Hills Subzone. The Land contained two existing dwellings which were each proposed to be given their own allotment.

The primary planning issues included the size and shape of the proposed allotments and whether they were consistent with the established pattern of division within the locality.

The ERD Court reversed the Council’s decision and granted planning and land division consent. You can read our previous article on the ERD Court proceedings here.

The Council appealed against that decision to the Court of Appeal.

Appeal proceedings

The grounds of the Council’s appeal broadly fell into two categories:

  1. Whether the ERD Court erroneously treated the second dwelling on the Land as having existing use rights as an independent residential dwelling instead of ancillary accommodation; and
  2. Whether the ERD Court’s reasoning that consent was warranted in the circumstances, particularly considering the proposed allotment size and frontage, was correct.

Reasoning of the Court

With respect to the first category of issues, the Court stated that section 205(2) of the PDI Act provides that the Court should only seek to deal with and resolve those issues in dispute between the parties. Although the Court is entitled to hear the matter de novo (i.e. afresh in the shoes of the original decision maker) that consideration is informed by the matters put in issue between the parties.

The Court considered the expert reports, the assessment manager’s report, and the transcript of the cross examination of the expert witnesses which were before the ERD Court. It was held that the Council had conceded that the two existing dwellings on the Land had existing use rights as two independent dwellings in the ERD Court proceedings, and could not now advance a new case on appeal.

On the second category of issues, the Court rejected the Council’s arguments and reiterated important principles of interpretation and application of the Code, namely:

  1. Desired Outcomes are not separate planning policies, but rather, they inform the consideration of the relevant Performance Outcomes in a planning assessment;
  2. Designated Performance Features are a guide to what is generally considered to satisfy the corresponding Performance Outcome. They are not ‘requirements’ and they do not, of themselves, determine compliance with the Performance Outcome. If a Designated Performance Feature is not met, then the approach is to undertake a planning assessment against the relevant Performance Outcome; and
  3. As Technical and Numeric Variations appear in Designated Performance Features, they are merely part of the guidance provided for compliance with the Designated Performance Feature and are not strict requirements.

The Council submitted that if a Technical and Numeric Variation was departed from it was necessary to give weight to the extent of the departure however the Court was not prepared to entertain this submission where it was not supported by any detailed analysis or argument by the Council.

The Court ultimately found that the Commissioner’s reasoning in concluding that consent was warranted in the circumstances was correct.

The Court dismissed the appeal and ordered the Council to pay the Respondents’ costs.

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