EVANS v ADELAIDE PLAINS COUNCIL ASSESSMENT PANEL [2026] SASC 57
On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH
AUSTRALIA (COMMISSIONER DAWSON) ERD-24-000108
Appellant: PASTOR EDWARD EVANS Counsel: MR J RODER - Solicitor: WALLMANS
LAWYERS
Respondent: ADELAIDE PLAINS COUNCIL ASSESSMENT PANEL Counsel: MR D BILLINGTON
SC - Solicitor: KELLEDY JONES
Hearing Date/s: 24/11/2025
File No/s: CIV-25-008616
B
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
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EVANS v ADELAIDE PLAINS COUNCIL ASSESSMENT
PANEL
[2026] SASC 57
Judgment of the Honourable Justice McIntyre
28 April 2026
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH
ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT,
RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS
ENVIRONMENT AND PLANNING - PLANNING - DEVELOPMENT
ASSESSMENT AND CONTROL
The appellant, a Pastor, conducts weekly worship and fellowship activities on his land in Lewiston
(‘the land’). The land is located within the Rural Horticultural Zone (‘RHZ’) under the Planning and
Design Code (‘the Code’). The appellant sought retrospective approval from the respondent for a
partial change in use of the land to a place of worship in association with the existing farm. The
respondent declined to approve the application.
The appellant appealed that decision to a Commissioner of the Environment, Resources and
Development Court of South Australia. The Commissioner affirmed the respondent’s decision and
dismissed the appeal, concluding that a place of worship is neither an envisaged land use nor one
supported by the zone policies. This is an appeal of that decision.
The appellant appeals on six grounds. Broadly, the appellant contends that the Commissioner erred
in law by concluding that use of the land as a place of worship was not supported by the zone policies.
Further, it is said that the Commissioner misconstrued the RHZ by concluding that the zone requires
a more direct connection to primary production than merely supporting, protecting and maintaining
primary production activities.
The respondents contend that the Commissioner made no error at law and that the Code must be
construed as a whole by allowing both the Desired Outcomes and Performance Outcomes to inform
its interpretation. It is said that the land use must positively and directly contribute to the agricultural
productivity of the land.
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Held, dismissing the appeal:
1. The Commissioner made no error at law and was correct to conclude that the RHZ does not
envisage a place of worship, nor provide policy support for such a use.
Planning, Development and Infrastructure Act 2016 (SA) ss 30(1)(b), 202; Uniform Civil Rules 2020
(SA) r 217.10(1)(b); Legislation Interpretation Act 2021 (SA) s 14, referred to.
Evans v Adelaide Plains Council Assessment Panel [2025] SAERDC 13, discussed.
Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165; House
v The King (1936) 55 CLR 499; Collector of Customs v Agfa-Gaevaert Ltd (1996) 186 CLR 389;
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; ADCO
Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; Lesses v Maras (No 3) [2017] SASCFC 154;
Geber Super Pty Ltd v Barossa Assessment Panel [2023] SASC 154; Ditara Pty Ltd v City of
Norwood, Payneham & St Peters [2001] SASC 234, considered.
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EVANS v ADELAIDE PLAINS COUNCIL ASSESSMENT PANEL
[2026] SASC 57
Single Judge Appeal: Civil
McIntyre J
1 The appellant appeals against orders of Commissioner Dawson in the
Environment, Resources and Development Court of South Australia (‘ERD
Court’). The Commissioner dismissed an appeal by the appellant under s 202 of
the Planning, Development and Infrastructure Act 2016 (SA) (‘the Act’) against a
refusal of the respondent to grant an application for retrospective planning consent
for a place of worship within a rural area (‘the Application’).
2 For the reasons that follow I dismiss this appeal.
Background
3 The background, as set out at paragraphs 15–25 of the reasons for judgment,1
is not in dispute. The application for retrospective approval concerned the
appellant’s land at Roberts Road, Lewiston (‘the land’). The land is located within
the Rural Horticultural Zone (‘RHZ’) under the Planning and Design Code
(‘the Code’). It comprises an approximately 8-hectare rectangular allotment with
frontage along the eastern boundary to Roberts Road. The site includes a
single-storey detached dwelling in the north-eastern corner, together with
associated sheds, stables, workshop buildings, animal holding yards, and a large
outbuilding or barn located to the rear of the dwelling.
4 The appellant, a Pastor, conducts weekly worship services within the barn
and leads fellowship activities on the land. Those activities occur in the rear
veranda of the dwelling and in adjoining stables, lawned areas, and the garden.
The decision
5 In his written reasons, the Commissioner observed that the RHZ is primarily
focused on agriculture and associated value-adding activities. He concluded that
a place of worship is neither an envisaged land use nor one supported by the zone
policies. On that basis, he found that the application failed at the fundamental
land-use level and that no aspect of the worship or fellowship activities, the land,
or the surrounding locality justified approval contrary to the zone’s intent. The
Commissioner therefore affirmed the decision of the respondent.
1 Evans v Adelaide Plains Council Assessment Panel [2025] SAERDC 13 (‘Evans’).
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The notice of appeal
6 The appellant lodged this appeal on 21 July 2025. The appeal was not
instituted within time, however, the time for filing the appeal was extended by
consent on 24 November 2025.
7 The Notice of Appeal raises six grounds. These are as follows:
1. The learned Commissioner erred at law at [42], [44] and [56] in utilising the Zone
Desired Outcomes in circumstances where the learned Commissioner was not
uncertain as to whether or how any relevant Zone Performance Outcomes applied to
the proposed development.
2. The learned Commissioner erred at law at [49] in determining that the proposed
development would not support primary production in any way having determined
that the proposed development would be capable of servicing members of the
community who reside or work within the zone.
3. The Commissioner erred at law at [49] in determining that because the land use of
place of worship and land use of primary production were independent of each other
that a proposed place of worship was not capable of "supporting" primary production
within the Zone.
4. The learned Commissioner erred at law at [51] in determining that the maintenance
of primary production needed to be a "deliberate consequence" of the proposed use
in order to satisfy Zone Performance Outcome 1.1.
5. The learned Commissioner erred at law at [52] in finding that "the zone seeks a
stronger and more supportive connection with primary production" notwithstanding
having found that the productive land use would be retained by the proposal.
6. The learned Commissioner erred at law at [70] in finding that a place of worship is
not an envisaged use and is not a use that finds support from the Zone Policies within
the Rural Horticultural Zone.
General principles
8 The principles governing appeals from the ERD Court to this Court were
considered in Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton.2
Justice Debelle (Cox and Duggan JJ agreeing) concluded that:3
The Court does not sit to hear purely planning issues to be argued unless the [Planning
Appeal] Tribunal has plainly 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 Tribunal
and will be minded to do so only where the appellant is able to demonstrate some
fundamental departure from proper planning principles.
(emphasis in original)
2 (1993) 62 SASR 165 at 173.
3 Ibid at 173.
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9 Pursuant to s 30(1)(b) of the Environment, Resources and Development
Court Act 1993 (SA) and r 217.10(1)(b) of the Uniform Civil Rules 2020 (SA)
(‘UCR’), an appeal to this Court is by way of rehearing and engages the principles
in House v The King.4 Those principles are directed to whether the Commissioner
acted upon a wrong principle; took into account extraneous or irrelevant
considerations; made an error of fact; failed to take into account a material
consideration; or reached a conclusion that was manifestly unreasonable or plainly
unjust. It is against those principles that each ground of appeal must be considered.
Ground 1
10 This ground of appeal arises out of the following paragraphs of the
Commissioner’s decision:5
Whilst Desired Outcomes are not policies against which a proposal is to be assessed, Part
1 of the Code states that they do “aid the interpretation of performance outcomes by setting
a general policy agenda for the zone” (my emphasis). RHZ DO 1 sets out that the zone is
to be used for “intensive agriculture in the form of horticulture and associated value-
adding enterprises and activities”. DO 2 expands on the type of value adding and
supportive activities that are anticipated, with DO 3 stating that conflict at the interface
between horticulture and other uses is to be managed. My collective understanding of these
DO’s is that the focus of the zone is intensive agriculture, along with appropriately scaled
associated activities. Whilst DO 3 speaks of the management of conflict between
horticulture and other uses, I do not consider this to be an encouragement of ‘other land
uses’ within the zone based on the Zone PO’s and DPF’s which seek to limit such uses.
…………………….
This is the policy against which the appropriateness of the land use is to be assessed, aided
by the DO’s. The first sentence of the PO, when considered in the context of the DO’s,
reaffirms what I consider to be the intent of the zone for development that supports, protects
and maintains the use of land for agriculture and associated activities.
…………………….
The Appellant submitted that nothing turns on the absence of places of worship from the
list of uses within DPF 1.1 and that a relevant authority, in assessing such an application,
must simply “pull (their) boots on and do some planning”. I agree that this is the correct
approach but note that a use not listed within DPF 1.1, which is not ancillary to primary
production is subject to a very limited number of policies within the zone, whereas ancillary
or value adding activities such as those listed above are subject to a number of prescriptive
policies. Whilst I acknowledge that the Code is unable to address the breadth of possible
land uses or development proposals, we are left with assessing the appropriateness of the
proposal against PO 1.1, informed by the DO’s.
[Citations omitted]
11 The appellant says that the Commissioner erred by relying on the Desired
Outcomes of the RHZ when assessing the application against the Code. It is
contended that, properly construed, the interpretation provisions permit recourse
4 (1936) 55 CLR 499.
5 Evans at [42], [44], [56].
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to Desired Outcomes only where there is uncertainty as to whether or how a
Performance Outcome applies. Accordingly, the appellant contends that the
Commissioner erred at the first stage of the interpretation of the Code by failing to
consider Performance Outcome 1.1 (‘PO 1.1’) to determine the application and
instead undertook an impermissible holistic assessment of the Code.
12 The respondent, on the other hand, says that this contention should be
rejected. Desired Outcomes are part of one cohesive document, the Code, which
must be construed as a whole. It is said that to interpret the Code in the manner
advanced by the appellant would be inconsistent with settled principles of statutory
construction including as they apply to the Code. Further it is said that this would
give rise to practical difficulties, including the risk of inconsistent outcomes driven
by the subjective uncertainty on the part of a relevant authority or the ERD Court.
13 The Code is a statutory instrument made under the Act. In Collector of
Customs v Agfa-Gaevaert Ltd,6 the High Court held that the “general principles
relating to the interpretation of Acts of Parliament are equally applicable to the
interpretation of delegated legislation”. This common law rule is codified in the
Legislation Interpretation Act 2021 (SA) (‘LIA’).
14 As explained in SZTAL v Minister for Immigration and Border Protection,7
interpretation begins with the text, considered together with its context and
purpose. Delegated legislation, like primary legislation, must therefore be
interpreted by reference to its text, context and evident purpose. Where competing
constructions are available, the Court should adopt the construction that best serves
the statutory purpose.8 While the ordinary meaning of words is significant, it may
be displaced where it is inconsistent with the statutory purpose. Where there is a
“constructional choice”, the selection turns on coherence with the statutory objects
and policies rather than linguistic preference alone. That approach is reinforced
by s 14 of the LIA, which requires preference to be given to the interpretation that
best achieves the purpose or object of the Act or instrument.
15 In construing planning instruments, courts have recognized their practical
character and that they are often expressed in the language of objectives and
principles rather than precise legal obligation. Regard may therefore be had to
their overall purpose and structure. However, there is no general principle
permitting a more flexible or lax approach to construction. Planning instruments
are not to be rewritten to achieve a perceived practical outcome. Where the text is
capable of producing an intelligible result, courts cannot read in words or
effectively frame planning policy.9
6 (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.
7 (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.
8 ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [28] per French CJ, Crennan, Kiefel
and Keane JJ; Lesses v Maras (No 3) [2017] SASCFC 154 at [38] per Blue, Parker and Hinton JJ; Geber
Super Pty Ltd v Barossa Assessment Panel [2023] SASC 154.
9 Ditara Pty Ltd v City of Norwood, Payneham & St Peters [2001] SASC 234.
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16 I do not accept the appellant’s contention that Desired Outcomes may only
be used where Performance Outcomes are uncertain. The Code must be construed
as a whole. Desired Outcomes legitimately inform and contextualise the
interpretation of the Performance Outcomes. A siloed or mechanistic approach to
the construction of Performance Outcomes such as that advanced by the appellant
is inconsistent with well settled principles of statutory interpretation. I dismiss this
ground of appeal.
Grounds 2 and 3
17 I will deal with these two grounds, which are raised in relation to paragraph
49 of the Commissioner’s reasons, in combination. That paragraph reads as
follows:
The Appellant put to the Court that the proposal can conveniently serve the spiritual needs
of workers and residents within the zone. In doing so it made the area a more desirable
place to work and live which had the effect of supporting agriculture in the region. Whilst
the proposal may service some members of the community who reside or work within the
zone, I do not accept that the proposed place of worship supports primary production in
this manner or in any other way. The two land uses are independent of each other with the
productivity of the zone unchanged by, and not reliant upon the presence of the place of
worship.
18 These two grounds of appeal turn on the assessment of the proposed
development as against PO 1.1 which reads as follows:
The productive value of horticultural land for a range of agricultural, intensive horticultural
activities and associated value adding processing, warehousing and distribution activities
is supported, protected and maintained. The proliferation of other land uses that may be
sensitive to those activities is avoided.
19 The appellant says that he conducted his case at trial on the basis that the
proposed land use satisfied PO 1.1. It was submitted, first, that the development
constituted a “value-adding activity” and, second, that permissible land uses in the
zone were not confined to agricultural and directly associated activities, but
extended to uses that support, protect and maintain those activities and are not
sensitive to them. On this approach, a place of worship supports primary
production by serving some workers and residents in the zone, making the area
more attractive to live and work in, and therefore need only be non-sensitive to
agricultural uses rather than agriculturally productive or directly connected to
them. On that basis, the appellant argued that the Commissioner adopted an
unduly narrow construction of the words “supported, protected and maintained”
by treating the zone as favouring predominantly, or exclusively, agricultural
development. It was further submitted that, having found that the proposal could
serve the spiritual and fellowship needs of members of the local community, the
Commissioner erred in concluding that this was insufficient to achieve compliance
with PO 1.1 merely because the use was not agricultural in character.
20 The respondent on the other hand submitted that the Commissioner’s
findings at paragraph 49 of the decision constituted a finding of fact which was not
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challenged on appeal. In any event, the respondent contended that PO 1.1 requires
the productive value of rural land to be positively supported, protected and
maintained, and that a place of worship is not among the activities contemplated
by that outcome. The respondent further argued that the appellant’s construction
would impermissibly expand PO 1.1 such that any land use capable of being
characterized as a social benefit could be said to support the productive value of
rural land. To the extent that the Commissioner construed “support” as requiring
a direct or tangible connection to primary production, that construction was said
to be correct.
21 In essence, the argument is whether “support” in PO 1.1 means “does not
hinder” (as the appellant contends) or “positively and directly contributes to”
agricultural productivity (as the respondent contends).
22 In context, PO 1.1 is concerned with safeguarding the productive value of
land within the RHZ. The requirement that such value be “supported, protected
and maintained” directs attention to whether a proposed use makes a tangible
positive contribution to, or has a functional relationship with, primary production
and the associated activities identified. It is not sufficient that a use merely avoids
conflict with agricultural activities. The Performance Outcome is directed to
preventing the incremental introduction of uses which, although benign in
isolation, do not advance the zone’s agricultural objectives. Accordingly, it is my
view that the appellant’s contention that PO 1.1 is satisfied so long as a proposed
use does not interfere with agricultural activities and, in some indirect or
community-based way, can be said to “support” them is misconceived. PO 1.1
requires a direct and tangible connection between the proposed use and the
productive agricultural purpose of the zone. Merely conferring a social or
community benefit is insufficient. A place of worship neither forms part of, nor
positively contributes to, agricultural production or associated value-adding
activities, and its presence leaves agricultural productivity unchanged.
23 On that basis, I find that a place of worship does not support, protect or
maintain the productive value of the land within the meaning of PO 1.1. I therefore
dismiss these grounds of appeal.
Ground 4
24 Ground four relates to the following paragraph of the Commissioner’s
reasons where he said, in dismissing an argument put forward by the respondent:10
I do not accept the CAP’s argument that productivity will be reduced. Whilst approved as
an agricultural building it was never the intent of the Appellant to use the barn as such, with
Mrs Evans submitting that they always intended on lodging a change in use application.
The barn is located within close proximity to the dwelling and other outbuildings such that
it has a greater relationship with the dwelling and its curtilage and does not impact on the
remaining productive value of the Land. I accept the Appellant’s submissions that the
productive output of the Land will be maintained with the limited cropping and grazing of
10 Evans at [51].
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the two paddocks and use of the garden and orchard to continue. The maintenance of
primary production however is not a deliberate consequence of the proposed use, rather a
result of the farming use of the land being spatially separated from the area to be utilised
by the place of worship.
[Citation omitted]
25 The appellant submits that the Commissioner erred in law by concluding that
compliance with PO 1.1 required the maintenance of primary production to be a
“deliberate consequence” of the proposed development. It is contended that the
proper question was whether the proposal maintained agricultural use in fact,
irrespective of intention.
26 I accept the respondent’s contention that this ground of appeal raises matters
of fact rather than construction. The reference to a “deliberate consequence”
reflects a factual finding rather than an interpretation of PO 1.1. The relevant
enquiry, as outlined above, was whether the proposal would support, protect and
maintain the productive value of the land for the identified activities. As I have
found, “support” in this context requires a direct or tangible contribution. By
contrast, the appellant’s construction adopts an unduly broad interpretation which
would reduce the requirement of support to mere absence of adverse impact. No
error of law is disclosed. I dismiss this ground of appeal.
Ground 5
27 Ground five contends that the Commissioner erred in law by concluding that
the zone requires a stronger and more direct connection with primary production
than that provided by the proposed use. The impugned paragraph reads as
follows:11
Whilst the productive land use will be retained by the proposal, I do not consider that it
will support the productive value of horticultural land as sought by PO 1.1. I am of the view
that there has been no tangible link or connection between the proposal and the intent of
the zone for agricultural use and associated activities demonstrated by the Appellant.
Whilst the rural setting and engagement with some aspects of farming may provide a
therapeutic or spiritual benefit to the congregation, the zone seeks a stronger and more
supportive connection with primary production than proposed.
28 As I have set out above, the ERD Court correctly adopted a narrower
construction of the term “support”. The appellant contends that “support” should
be understood as meaning “does not hinder”, a construction the Commissioner
rejected. No error arises from that approach. PO 1.1, in context, requires a tangible
and positive contribution to the productive value of the land for the activities
identified. Although the Commissioner accepted that the proposed place of
worship would not detract from productive value, he was correct to conclude that
“support” in this context requires more than mere non-interference, and to find that
the proposed place of worship, although not hindering productive use of the land,
did not provide the stronger and more supportive connection with primary
11 Evans at [52].
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production contemplated by PO 1.1. No error of law is disclosed, and I dismiss
this ground of appeal.
Ground 6
29 Ground six is advanced as a residual ground, contending that the
Commissioner erred in law in finding that a place of worship is neither an
envisaged use nor one supported by the zone policies of the RHZ. This ground
arises out of the Commissioner’s conclusion that:12
The RHZ seeks the development of agriculture and associated activities. A place of worship
is not an envisaged use within the zone, and in the context of the intent of the zone for
agriculture is not a use that finds support from the zone policies. I acknowledge the limited
hours of operation, location of the barn away from common boundaries, the existing
fencing, the proposed landscape buffer and general nature of worship based around the
farming activities upon the Land. These aspects result in the proposal not being sensitive
to potential impacts from adjacent and future agricultural activities. Whilst the proposal is
not ‘sensitive’ and can be accommodated upon the land with little to no impact on adjoining
properties I have formed a view similar to that of the Court in South East Ward Residents
where it was found that it is an incorrect approach, having found the proposed development
at variance with the intent of the zone to conclude that as there would be no negative
impacts the proposed development had sufficient merit to proceed.
[Citations omitted]
30 The appellant concedes that this ground rises or falls with the proper
construction of PO 1.1 addressed in the preceding grounds. The respondent
submits that the Commissioner’s observations at paragraph 70 were not merely
derivative of PO 1.1, but reflected a broader evaluative conclusion reached by
construing the zone provisions as a whole. So construed, it is said that the
Commissioner was correct to conclude that the RHZ does not envisage a place of
worship, nor provide policy support for such a use.
31 PO 1.1 is directed to safeguarding the productive value of land within the
RHZ. Its focus is not merely on whether a proposed use avoids conflict with
agricultural activities, but on whether it affirmatively supports, protects or
maintains the land’s capacity for the specified forms of primary production and
associated activities. Read in context, the Performance Outcome contemplates a
meaningful and functional relationship between the proposed development and
primary production. The requirement that other land uses be limited reflects an
intention to prevent the gradual introduction of uses that, while not immediately
incompatible, do not contribute to or may ultimately undermine, the zone’s
agricultural purpose. Mere absence of hindrance is therefore insufficient to satisfy
PO 1.1; the outcome is concerned with positive alignment with, and reinforcement
of, the zone’s productive objectives.
32 There is no error of law. I dismiss this ground of appeal.
12 Ibid at [70].
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