YOUNG AUTO PARK PTY LTD v VALUER-GENERAL [2026] SASC 15

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER D'ARCY) SA001002 OF 2023 Appellant: YOUNG AUTO PARK PTY LTD Counsel: MR M RODER KC WITH MR B JENNER - Solicitor: ADCO LEGAL Respondent: VALUER-GENERAL Counsel: MR T GOLDING KC WITH MR C PAGER - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 01/09/2025 File No/s: CIV-25-006796 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. YOUNG AUTO PARK PTY LTD v VALUER- GENERAL [2026] SASC 15 Judgment of the Honourable Justice B Doyle 16 February 2026 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL REAL PROPERTY - VALUATION OF LAND - METHODS OF VALUATION REAL PROPERTY - VALUATION OF LAND - OBJECTIONS AND APPEALS - SOUTH AUSTRALIA REAL PROPERTY - VALUATION OF LAND - VALUERS-GENERAL The appellant is the registered proprietor of property located in the City of Adelaide, on which exists a multi-level car park facility with ground level retail and office accommodation (‘the Property’). In 1993, the Corporation of the City of Adelaide entered into an agreement with the then registered proprietors of the Property relating to the development, preservation or conservation of the Property under s 39d of the City of Adelaide Development Control Act 1976 (SA) (‘CADC Act’) (‘the Development Deed’). By the terms of the Development Deed, the registered proprietors agreed, inter alia, not to develop the Property (or allow it to be developed) by constructing a building exceeding five storeys. On 17 March 2023, a review valuer of the Office of the Valuer-General determined that the site value of the Property, as at 1 January 2021, was $8.625 million. The appellant pursued a right of review by making application to the South Australian Civil and Administrative Tribunal (‘the Tribunal’) pursuant to section 25C of the Valuation of Land Act 1971 (SA). A Senior Member of the Tribunal set aside the decision of the review valuer and determined that the site value of the Property, as at 1 January 2021, was $12.3 million. In making its determination, the Tribunal adopted the valuation opinion of Ms Gaetjens, which assessed the site value of the Property on the basis that the Property was undeveloped. The valuation was also made on the basis that the provisions of the Development Deed were to be disregarded. -- 1 of 39 -- The appellant now appeals against the decision of the Tribunal, contending that: 1. an agreement entered into under s 39d of the CADC Act is akin to a land management agreement under general planning legislation and should not be disregarded when assessing the value of an unencumbered estate in fee simple; 2. alternatively, the Tribunal ought not to have assessed the Property’s site value on an undeveloped basis without first having considered whether the existing structures constituted improvements in the relevant sense; and 3. in the further alternative, the Tribunal erred in its comparable transaction analysis by excluding from consideration particular sales. The respondent made application during the hearing to rely on an alternative contention that the Development Deed was rescinded prior to the valuation date. Held, granting leave to appeal, allowing the appeal, and remitting the matter to the Tribunal for further consideration: 1. the Tribunal did not err in its findings by disregarding the depreciatory effect (if any) of the Development Deed; 2. the Tribunal erred by assessing the site value of the Property on an undeveloped basis without having first determined whether the existing structures on the Property constituted improvements. Acts Interpretation Act 1915 (SA) s 16(1); City of Adelaide Development Control Act 1976 (SA) ss 6, 7, 11(1), 23, 24a, 25, 27, 28, 32(3), 39c, 39d; Development Act 1993 (SA) ss 57, 57A, 83, 84, 85, pt 5; Development (Miscellaneous) Amendment Act 2005 (SA); Development (System Improvement Program) Amendment Act 2000 (SA); Land Tax Act 1936 (SA) s 7(2); Legislation Interpretation Act 2021 (SA) 32(2)(d)-(e); Local Government Act 1934 (SA) s 36; Parliamentary Debates Legislative Council, 18 November 1981, 2002 ; Planning Act 1982 (SA) s 61; Planning, Development and Infrastructure Act 2016 (SA) ss 192, 193, 212, sch 8 cl 32(2); Planning and Environment Act 1987 (Vic) pt 9 div 2; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71; South Australian Heritage Act 1978; Statutes Repeal and Amendment (Development) Act 1993 (SA) ss 5, 6, 15(2), 16(1)(b), 20, 24; Valuation of Land Act 1960 (Vic) s 5A; Valuation of Land Act 1971 (SA) ss 11(2), 14(1), 22B, 25C, referred to. Ardoch Pty Ltd v Valuer-General (No 2) [2006] SASC 217; Broadcast Australia Pty Ltd v Valuer General [2011] WASAT 58; Capaldo v Capaldo [2011] SASCFC 115; Colonial Sugar Refining Co Ltd v Valuer-General (1977) 17 SASR 446; Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Crompton v Commissioner of Highways (1973) 5 SASR 301; Daandine Pastoral Company Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299; Draoui v Le [2021] SASCA 33; Goode v Valuer-General (1979) 22 SASR 247; Goulston v Valuer-General (1924) 7 LGR 17; Griffiths v Valuer-General [1963] NSWR 150; Harry v Valuer-General (1975) 12 SASR 446; ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; Jolly v District Council of Yankalilla (2006) 143 LGERA 428; [2006] SASC 53; McEwin v Valuer-General (1993) 60 SASR 241; Naval, Military and Airforce Club of South Australia Inc v Commissioner of Taxation (1994) 51 FCR 154; Pattas v Stonnington City Council [2010] VSC 487; Perliya Broken Hill Ltd v Valuer-General [2015] NSWCA 400; Port Macquarie West Bowling Club Ltd v The Minister [1972] 2 NSWLR 63; Royal Sydney Golf Club v Federal Commissioner of Taxation (1954) 91 CLR 610; Spencer v The Commonwealth (1907) 5 CLR 418; Sydney City Council v Valuer-General (1956) 1 LGRA 229; Tarca v Hambrook (1995) 86 LGERA 56; Transport Accident Commission v Pastuch [2025] SASCA 120; Trust Company of Australia Ltd v Valuer-General (2008) 101 SASR 110; Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160; Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; Valuer-General v New South Wales Golf Club [2012] NSWCA 355; Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd (2025) 99 ALJR 955; [2025] HCA 23; Wood v Valuer-General [2021] SACAT 7; Wilson v City of Onkaparinga [2024] SASC 139; Zhengtang Precinct Loft Pty Ltd v Corporation of the City of Adelaide [2024] SASCA 148; Zweck v Town of Gawler (2015) 124 SASR 319, discussed. -- 2 of 39 -- YOUNG AUTO PARK PTY LTD v VALUER- GENERAL [2026] SASC 15 Single judge appeal—civil 1 B DOYLE J: This appeal against a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) concerns the determination of ‘site value’ for the purposes of the Valuation of Land Act 1971 (SA) (‘VLA’). 2 It arises from a contested valuation of a parcel of land located at 16-30 Young Street, Adelaide, on which exists a multi-level car park facility with ground level retail and office accommodation (‘the Property’). In 1993, an agreement relating to the development, preservation or conservation of the Property was entered into under s 39d of the City of Adelaide Development Control Act 1976 (SA) (‘CADC Act’) (‘the Development Deed’). By the terms of that agreement, the registered proprietors agreed, inter alia, not to develop the Property (or allow it to be developed) by constructing a building exceeding five storeys. 3 The Tribunal found that, as at 1 January 2021, the site value of the Property was $12.3 million. That represented an increase of nearly $10 million relative to the previous assessment. This valuation was made on the basis that the restrictive provisions of the Development Deed were to be disregarded. 4 As will be explained in greater detail, site value for the purposes of the VLA is the capital amount that an unencumbered estate in fee simple in the land might reasonably be expected to realise upon sale assuming that any improvements on the land, the benefit of which is not exhausted at the time of the valuation, had not been made. 5 The first question arising in the appeal is whether, when identifying the value of an unencumbered estate in fee simple, the depreciatory effect of an agreement relating to the development, preservation or conservation of land entered into under s 39d of the CADC Act must be disregarded. 6 If the answer to the first question is ‘no’, it follows that the Tribunal erred, and the appeal should be allowed, unless the respondent succeeds on a proposed alternative contention to the effect that the Development Deed has been rescinded or was no longer binding and enforceable as between the parties. 7 If the answer to the first question is ‘yes’, a question arises whether the Tribunal (or the expert valuer whose valuation opinion was adopted, Ms Gaetjens) erred by assessing the Property as though it were presently undeveloped, without having first considered whether, as at the date of valuation, the market value of the Property with its existing structures was higher than the market value of the Property had they not been constructed. -- 3 of 39 -- [2026] SASC 15 B Doyle J 2 8 The respondent accepts that whether a building is an improvement for the purposes of assessing ‘site value’ is governed by the approach described in the recent decision of Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd (‘WSTI Properties’).1 The debate on appeal concerns whether that approach was applied. 9 For the reasons that follow, I have concluded that the Tribunal did not err by disregarding the s 39d agreement. The Tribunal did err, however, by assessing the site value of the Property on an undeveloped basis without having first determined that the existing structures amounted to improvements. The appeal must be allowed and the matter remitted for further consideration. Background 10 The appellant has since 15 June 2010 been the registered proprietor of the Property. Young Street runs between Waymouth Street and Flinders Street. 11 In the early 1990’s, the Corporation of the City of Adelaide (referred to in these reasons as ‘the Corporation’ or ‘the Council’) entered into three development deeds with the then registered proprietor of the Property, each deed rescinding and replacing the previous deed. 12 The agreement of present relevance (the Development Deed) was entered into on 16 December 1993 and comprises a deed between the Corporation and the then owners of the Property. 13 After detailing the history of the earlier deeds, the Recitals to the Development Deed recorded that the Corporation wished to ensure that the total site was developed in the manner depicted in three Annexures and not in the manner contemplated by earlier deeds. 14 By cl 2 of the Development Deed, the registered proprietors undertook that they would not develop, redevelop, or seek to or permit any other party to develop or redevelop any part of the Property other than generally in accordance with the Annexures. They promised to use their best endeavours to ensure that the total site was not developed other than generally in the manner depicted in the Annexures. Clause 4 provided that the Corporation could apply to the Registrar-General to register the deed and enter memorials on the Certificates of Title for the Property. 15 The plans in the Annexures provided for the building to be limited to five storeys and also depicted a number of easements, including an easement in the location of a ramp on the north of Young Street that is used to access the basement carparking in an adjacent Franklin Street property. 16 Between 23 September 2010 and 12 May 2011, planning approvals were issued on various applications made by the appellant and the owner of the 1 (2025) 99 ALJR 955; [2025] HCA 23. -- 4 of 39 -- [2026] SASC 15 B Doyle J 3 adjoining Franklin Street property. The appellant constructed the additional carparking levels in accordance with the development approvals in around 2012 and completed the apartment and office space development on the adjoining Franklin Street property in accordance with the approvals for the Property and the Franklin Street property. 17 As at the date of the valuation the subject of this appeal, there was a building on the Property comprising a basement car park level, a retail ground level, being predominantly car parking with only the western (street front) portion being retail, and five upper levels of carparking bays. At basement level, there was an access ramp in the north of the building providing the only access to the adjoining Franklin Street apartments and commercial premises carpark. 18 The approval to construct what is effectively a seven-storey building was given despite the restrictive terms of the Development Deed. As will be seen in the context of the respondent’s application to rely on a proposed alternative contention, there is some evidence to suggest that the Corporation resolved to consent to a rescission of the Development Deed. A dispute as to site value 19 For certain land in this State, the Valuer-General is required to determine or cause to be determined the annual value, the capital value, the site value and the unimproved value of land that has been the subject of a general valuation, so far as those values are required for the purpose of levying or imposing any rate, tax or impost.2 A general valuation must be made within each area at least once during each successive period of five years after the day on which the first general valuation of land within the area comes into force.3 20 The VLA contains definitions of the various concepts of value. The ‘site value’ of land is defined to mean: the capital amount that an unencumbered estate in fee simple in the land might reasonably be expected to realise upon sale assuming that any improvements on the land, the benefit of which is unexhausted at the time of valuation, had not been made; for the purposes of this definition— (a) improvements means— (i) buildings and structures (but not including structures in the nature of site works); and (ii) wells, dams and reservoirs; and (iii) the planting of trees for commercial purposes. 2 VLA, s 11(2). 3 VLA, s 14(1). -- 5 of 39 -- [2026] SASC 15 B Doyle J 4 21 Under the Land Tax Act 1936 (SA), land tax in respect of a particular financial year is calculated on the basis of determinations of site value in force under the VLA as at midnight on 30 June immediately preceding the commencement of the financial year (whether the determination is actually made before, on or after that date).4 22 In the financial years ending 30 June 2019, 30 June 2020 and 30 June 2021, the site value as assessed in respect of the Property was $2.45 million, $2.75 million and $2.755 million respectively. 23 In respect of the year ending 30 June 2022, the site value was assessed as being $8.625 million. The appellant made an application to the respondent for the review of that site valuation. A review valuer confirmed the respondent’s earlier assessment. Review by the Tribunal 24 The appellant pursued a right of review by making application to the Tribunal under s 25C of the VLA. Although review proceedings in SACAT ordinarily proceed by way of rehearing,5 s 25C(3) of the VLA provides that the matter proceeds de novo. 25 For reasons delivered on 23 May 2025 (‘Reasons’), a Senior Member of the Tribunal set aside the decision under review and decided that the site value of the Property as at 1 January 2021 was $12.3 million. 26 In reaching that view, the Tribunal: • accepted that the Development Deed had a depreciatory effect upon the market value of the Property (Reasons [23]), but concluded that it was an encumbrance upon the land (and not a restriction on it imposed by generally applicable legislation), with the result that the depreciatory effect should be disregarded (Reasons [20]-[28]); • consequently, considered that the first valuation report of Mr Bell and the first report prepared by Ms Gaetjens could not be relied upon because they had wrongly had regard to the Development Deed (Reasons [42]); and • preferred the second report of Ms Gaetjens, which used the comparable transactions method, over the second report of Mr Bell, which adopted a capitalisation approach of imputed net market income (Reasons [43]-[48]). 27 The Senior Member also addressed and rejected an argument advanced by the respondent that the Development Deed had no legal or practical effect and was 4 Land Tax Act 1936 (SA), s 7(3). 5 South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’), s 34. -- 6 of 39 -- [2026] SASC 15 B Doyle J 5 unenforceable because it was first registered on the title of the Property after the repeal of the CADC Act (Reasons [52]). The appeal and leave to appeal 28 The appeal to this Court against the Tribunal’s decision is by way of rehearing.6 An appeal by way of rehearing in a valuation matter will generally only succeed where the decision-maker acted on some wrong principle of law or where the valuation is ‘entirely erroneous’.7 29 The Court may interfere where the valuer whose assessment is subject to appeal has made some error of law; has acted on a wrong principle of valuation; has misapprehended, misused or excluded relevant material, in other words, has failed to have regard to relevant factors or has had regard to irrelevant factors; has misapplied a principle or has in some other way erred in discharging the task of a valuer. This may extend to an incorrect analysis of comparable sales or a failure to mention relevant comparable sales. The Court will not interfere if there is a mere difference of opinion with the valuer whose valuation is under challenge.8 30 In short, the deference standard, rather than the correctness standard, applies, because there is no uniquely correct valuation and because valuation depends upon a measure of judgment involving opinion, estimation and impression.9 31 Leave to appeal is required.10 The relevant principles are well-settled.11 In my view, the grounds of appeal are arguable and the matters raised involve matters of general principle. The financial consequences of the valuation are significant. Whilst the Court will not routinely grant leave to appeal from decisions of the Tribunal, leave to appeal should be granted in this case. Did the Tribunal err by disregarding the Development Deed? 32 Referring to the decision of the Tribunal in Wood v Valuer-General (‘Wood’)12 and the Full Court’s decision in Trust Company of Australia Ltd v Valuer-General (‘Trust Co of Australia’),13 the Senior Member said that the question whether the Development Deed was an encumbrance depended upon whether it had a depreciatory effect on the market value of the Property. If so, it should be disregarded unless it was ‘a restriction on the Property imposed in a generally applicable way such as by legislation’ (Reasons [20]). 6 SACAT Act, s 71(3a). 7 Capaldo v Capaldo [2011] SASCFC 115 at [14]-[17] (Gray J). 8 Ardoch Pty Ltd v Valuer-General (No 2) [2006] SASC 217 at [33] (Debelle J). 9 cf. Transport Accident Commission v Pastuch [2025] SASCA 120 at [21]-[22], [44] (S Doyle JA, Livesey P and Bleby JA agreeing). 10 SACAT Act, s 71(2). 11 See, eg, Wilson v City of Onkaparinga [2024] SASC 139 at [67] (B Doyle J). 12 [2021] SACAT 7. 13 (2008) 101 SASR 110. -- 7 of 39 -- [2026] SASC 15 B Doyle J 6 33 The Senior Member’s dispositive reasoning was as follows (Reasons [24], footnote omitted): The applicant relied on a passage from the decision of Mullighan J in McEwin & Ors v Valuer-General (1993) 60 SASR 241 at 247 where he ruled “the valuer cannot ignore any relevant restrictions upon the use or development of land when assessing the site value” and “restrictions caused by the heritage listing must be considered when determining the site value”. In my view the result in McEwin is distinguishable from this matter. McEwin concerned a heritage-listed building which was accepted as being “historically and architecturally one of the most significant buildings in the State” and “a major landmark building on North Terrace” (at 244). That is quite different from the Property in this matter, which is a car park on an unremarkable cross-street in Adelaide’s CBD and neither historically significant nor heritage-listed. Unlike McEwin, what is unique in this matter is not the nature of the Property but the existence of the Development Deed. Further, in my view heritage listing of a building is akin to a restriction imposed by generally applicable legislation, which following Trust Co of Australia is not to be disregarded when assessing capital value (and equally, when assessing site value). The Development Deed in this matter is in my view not a restriction imposed by generally applicable legislation, notwithstanding that it makes specific reference to section 39d of the City of Adelaide Development Control Act 1976 (no longer in force). Section 39d imposed no general restrictions on land, but instead empowered Adelaide City Council to enter into agreements with owners of land. ‘Agreements’ is the key word. It is irrelevant that the original parties who agreed the Development Deed with Adelaide City Council are no longer the owners of the Property and the adjoining land also affected by the Development Deed. The change in land ownership does not transmute the nature of the Development Deed from being an agreement into being a restriction of general applicability. 34 For the Senior Member, the fact that the Development Deed was an agreement was decisive, and that remained the case even if its effect upon the current owner is achieved by statute. 35 The appellant contends that the Senior Member took too narrow an approach by asking whether the relevant restriction was imposed in a ‘generally applicable way such as by legislation’. 36 The appellant contends that a s 39d agreement is appropriately characterised as a ‘planning control’, involving an exercise by the Council of a statutory power under legislation. The agreement is an instrument of planning legislation. Further, in practical terms, the original land-owning party to the agreement would usually have been required by the Council to enter the agreement as a condition of the granting of a development consent. Moreover, once entered into and registered, a s 39d agreement binds successors-in-title who were not parties to the original agreement. 37 The respondent, by contrast, submits that whilst s 39d empowered the Council to enter into agreements, it did not itself impose restrictions of general application. The fact that once registered a s 39d agreement would bind future owners did not alter its essential character as a contractual encumbrance or a private condition. The fact that it could be amended or rescinded by agreement between the parties further supported its classification as a private encumbrance, -- 8 of 39 -- [2026] SASC 15 B Doyle J 7 condition or restriction on title, rather than a legislative or public law restriction upon the development, use or alienability of the Property. 38 The respondent contends that the Development Deed is squarely within the category of private burdens that must be disregarded under the required valuation hypothesis. 39 In order to resolve the competing contentions, I first consider the required valuation hypothesis, before turning to a consideration of the nature, character and effect of a s 39d agreement. Because these agreements were modelled on ‘land management agreements’ under general planning legislation, and because there is a dearth of authority in respect of s 39d agreements,14 it is appropriate to consider authorities concerning land management agreements. In doing so, it will be necessary to bear in mind the different and developing legislative landscape relevant to those agreements from time to time. Valuation of an unencumbered estate in fee simple in the land 40 In Royal Sydney Golf Club v Federal Commissioner of Taxation (‘Royal Sydney Golf Club’),15 the question was whether in valuing land for land tax purposes, the depreciatory effect a planning scheme promulgated under local government legislation was properly to be brought to bear in valuing the golf course land. 41 The statute in question provided that land tax should be levied and paid upon the unimproved value of all lands owned by taxpayers and not exempt from taxation. The Court observed that the general policy of the Act was to impose the tax on the owner of the first estate of freehold in possession and to make him liable independently of the rights of any reversioner, mortgagee or holder of security in respect of the unimproved value of the land. ‘Unimproved value’ in relation to unimproved land was defined to mean the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require. 42 Although it was not explicit in the legislation, the Court said it was clear enough that ‘the fee simple here means an unencumbered fee simple’.16 The Court went on to say:17 Encumbrances upon land or estates in reversion appear to have been regarded as giving to reversioners or encumbrancers beneficial interests to be enjoyed by them. But the owner of the first estate of freehold was selected as the taxpayer who was to represent all persons beneficially entitled to the land. The value upon which he was to be taxed was the unimproved value of the fee simple, that is to say the capital sum which the fee simple might be expected to realize. It seems evident that the fee simple mentioned must be taken 14 Naval, Military and Airforce Club of South Australia Inc v Commissioner of Taxation (1994) 51 FCR 154 featured a s 39d agreement, but the decision does not assist in the present context. 15 (1955) 91 CLR 610. 16 (1955) 91 CLR 610 at 623 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ). 17 (1955) 91 CLR 610 at 623 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ). -- 9 of 39 -- [2026] SASC 15 B Doyle J 8 as free from encumbrances which, if they impaired the value of his estate, nevertheless operated to confer upon some other person or persons an estate or interest in the land. Were it otherwise the taxable value of the land would be diminished but the correlative estate or interest would not come into tax, unless by some chance it were an interest falling under some specific provision imposing liability. When the definitions of ‘unimproved value’ in s. 3 speak of “the fee simple” they cannot mean, notwithstanding the definite article, that estate in fee simple which has been granted. 43 It may be observed at this point that the definition of ‘site value’ in the VLA makes explicit what the plurality in Royal Sydney Golf Club said was implicit, namely, that what is valued is ‘an unencumbered estate in fee simple in the land’ and not the value of the interest of the registered proprietor (in fee simple) of the land. 44 Their Honours continued:18 The expression “the fee simple of the land” naturally means the fee simple as the highest estate unencumbered and subject to no conditions. Doubtless estates in fee simple may be granted by the Crown subject to conditions or reservations which operate only in the public interest. The corresponding advantages which ensue may be enjoyed only as of public right: they are not an interest in land enjoyed by a specific person or persons. But the Act does not draw any distinction based upon this possibility. The general policy was reflected in a general rule. The interpretation of the Act which seems best to accord with the policy appearing from its provisions and also to flow from its language is that in assessing the unimproved value an estate in fee simple must be taken as the hypothesis unencumbered and subject to no condition restricting the use or enjoyment of the land. … But it is one thing to say that a hypothetical fee simple unencumbered and subject to no condition restricting enjoyment or use must be taken and another to say that laws of the State which affect the value of land are not to be taken into consideration. The federal Act adopts the hypothesis of an estate in fee simple to which State law attaches a fasciculus of rights. What those rights are, how far they extend and what measure of enjoyment they give must depend on the law of the State. This would hardly be denied in the case of a general law governing all fee simples in land throughout the State. But it is difficult to distinguish between such a law and one operating in part of a State or in a defined area only. There is all the difference between a public law affecting the enjoyment of land and a restriction of title. It is not difficult to imagine a law made by a State restricting the cultivation of land in some particular way. Such a law might well operate to prejudice the value of land which had no profitable use except for cultivation in the manner restricted. Would it matter for the purposes of the definitions of “unimproved value” that the law operated only in part of the State or within a very confined area? There remains the question how the distinction which is drawn above applies in this case to the County of Cumberland Scheme. Do the restrictions which it imposes upon, threatens to or suspends over land within the areas in the scheme, particularly that coloured dark green, amount to nothing but an encumbrance or condition or restrictive obligation affecting the titles to specific parcels of land? Is it not rather a law operating over an area of country within the State which, though not large, is chosen independently of all questions of title or ownership and controlling the use to which owners in fee simple or for any less estate or interest occupiers, licensees and indeed even trespassers may put the land? Its nature and purpose seem to bring the restrictions flowing from the scheme under the second description. However the title may be derived and whatever may be the form of ownership, 18 (1955) 91 CLR 610 at 623-625 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ). -- 10 of 39 -- [2026] SASC 15 B Doyle J 9 occupation or enjoyment, the use of all land within the scheme is affected actually or contingently, presently or in the future, but in varying degrees and subject to varying conditions. In the case of land within the area coloured dark green the restriction, if not more proximate, is at all events more stringent. But it is nevertheless a restriction which arises from the law affecting an area in which the land lies, and not something altering the hypothesis upon which the Federal statute requires the land to be assessed. It must be taken into account in ascertaining the unimproved value of the land. The first question in the case stated should therefore be answered that in arriving at the unimproved value under the Land Tax Assessment Act of the land the subject of the appeal the land should not be valued without regard to the provisions and effect of the County of Cumberland Planning Scheme. 45 A number of propositions emerge from this analysis. 46 First, the Court did not treat the class of restrictions required to be ignored as being limited to those in respect of which a corresponding estate or interest in the Property was conferred on some other party, although where such right is conferred, and it has a depreciatory effect on value, that may be a clear case of an encumbrance or private restriction on a taxpayer’s title that is to be disregarded. 47 Secondly, the Court contrasted ‘an encumbrance or condition or restrictive obligation affecting the titles to specific parcels of land’ with a restriction or depreciatory effect arising by reason of ‘a law operating over an area of country within the State which, though not large, is chosen independently of all questions of title or ownership and controlling the use to which owners in fee simple or for any less estate or interest occupiers, licensees and indeed even trespassers may put the land’. This distinction appears to invite attention to: • the basis for the application of the restriction, and whether it was referable to objective characteristics or features of the land (at one end of the spectrum) or the identity of an estate-owner (at the other); and • the extent to which the restriction governs use of the land generally including by trespassers (at one end of the spectrum) or restricts the particular estate of the taxpayer (at the other end). 48 In my view, this approach does not limit the class of restrictions to which regard may be had in valuing an unencumbered estate in fee simple in land to those arising by direct force of provisions of a statute, nor to restrictions that have potential application to all the land in the State although, again, restrictions of that kind are paradigm examples of matters that may be taken into account as part of the valuation exercise. 49 Subsequent authorities have recognised that restrictions which would negatively affect the use or alienability of land irrespective of the identity of the owner, and even where the restriction has arisen pursuant to or under, rather than directly by, a statutory scheme, may be brought to bear in assessing the value of an unencumbered estate in fee simple in the land. -- 11 of 39 -- [2026] SASC 15 B Doyle J 10 50 In Sydney City Council v Valuer-General,19 Sugerman J held that the value of the fee simple in land held by the Council should be ascertained taking into consideration restrictions on use imposed by an Ordinance, but not restrictions on use, enjoyment and alienation that resulted from the dedication of the land by the Crown for public recreation. He said that the provisions of the Valuation of Land Act 1916 (NSW) were:20 an integral part of the system of rating, whose character, in my opinion, postulates a uniform basis of assessment of rates which are payable by a class of ratepayers whose estates or interests permit of considerable variation inter se, that is to say, a basis which has no regard to the quantum or incidence of any particular ratepayer’s estate or interest. The system is a system of rating, not upon the value of the ratepayer’s estate or interest, but upon the value of the ‘fee simple of the land’, ascertained by reference to a hypothetical sale thereof defined in terms which make it independent of the personality of any actual owner for the time being. 51 In CSR v Valuer-General (‘CSR’),21 Wells J considered that the words ‘an unencumbered estate of fee simple in the land’:22 denote an absolute or pure estate in fee simple in the subject land, free of any private conditions, limitations, restrictive covenants, or other inherent restrictions affecting the estate or the land, but subject, of course, to any laws of a general nature that affect the use or alienability of the land. 52 In an earlier case of Harry v Valuer-General (‘Harry’),23 Wells J had observed that:24 … [T]he truth is, in my opinion, that, except when it is used in the Real Property Act 1886 (as amended) and Acts in pari materia, the word ‘encumbrance’ — and the same applies to ‘encumber’ — has not acquired the sort of technical meaning that one associates with such words as ‘demise’ or ‘seisin’; it is not yet a true term of art. I regard it rather as a protean word that takes its precise meaning from the particular context in which it appears. I do not find it necessary to arrive at its precise meaning for the purposes of this appeal. Whatever its true meaning in the definition may be, the whole effect of the Act, in my judgment, is imperatively to require the Valuer-General to value the largest estate in the subject land known to the law, and not a particular taxpayer's interest in that land. I hold, therefore, that whether a fee simple estate is, within the meaning of the definition, encumbered by the grant of a term of years or not, the terms granted in the present case are not to be taken into account; it matters not whether leaseholds are excluded by the word ‘unencumbered’ or by what is necessarily implied by the legislative description of what is to be valued. What is to be valued is a specified estate in the land, by whomsoever held. I accordingly hold that Mr. Harry's first argument fails. 19 (1956) 1 LGRA 229. 20 (1956) 1 LGRA 229 at 234-235. 21 (1977) 17 SASR 446. 22 (1977) 17 SASR 446 at 450. 23 (1975) 12 SASR 446. 24 (1975) 12 SASR 446 at 450. -- 12 of 39 -- [2026] SASC 15 B Doyle J 11 53 It has been said that planning statutes (including, relevantly, plans promulgated under those statutes25 and addressing matters such as maximum floor plan ratios26) are prime examples, but are not exhaustive, of the laws of general application that are properly brought to bear in this context.27 54 It is clear that the word ‘unencumbered’ qualifies the phrase ‘estate of fee simple in the land’, and that it is the estate which is to be treated as unencumbered, not the value of the land.28 55 That proposition assists in understanding the outcome reached in a decision of the Western Australian State Administrative Tribunal in Broadcast Australia Pty Ltd v Valuer General (‘Broadcast Australia’).29 The property requiring valuation was the site of the Hamersley Transmission Facility that broadcasts the Australian Broadcasting Corporation (ABC) News Radio, Local Radio and Radio National services to the Perth metropolitan and regional areas. The property was uniquely suited to that purpose and an alternative site from which to replicate existing service coverage could not readily be found. 56 The property formed part of a suite of assets that once comprised the National Transmission Network and which were vested in Broadcast Australia Pty Ltd (‘Broadcast Australia’) in 1999 by force of federal legislation. The legislation provided that any asset vested under it or a replacement asset for such an asset could not be transferred without the prior written approval of the Minister administering the legislation, who had power to refuse to approve a transfer if they had reason to believe it might jeopardise continued access by the ABC to the carriage of broadcasting services. 57 The question arising for the purposes of a tax assessment was whether that restriction on title was required to be excluded for the purposes of valuing an unencumbered estate of fee simple in the land. In concluding that the restriction should be disregarded in undertaking the relevant valuation, the Tribunal considered that: 25 In Valuer-General v New South Wales Golf Club [2012] NSWCA 355 at [36], Preston CJ of LEC (Hoeben JA and Ward J agreeing) said that public laws which affect the value of land including restrictions imposed by planning laws and instruments made thereunder were to be taken into consideration, referring, inter alia, to Sydney City Council v Valuer-General (1956) 1 LGRA 229 at 230. 26 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 at [15] (Leeming JA, Basten and Gleeson JJA agreeing). 27 Perliya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 at [88] (Leeming JA, Bathurst CJ and Macfarlan JA relevantly agreeing). 28 Trust Co of Australia Ltd v Valuer-General (2008) 101 SASR 110 at [65] (Bleby J, Duggan and Anderson JJ agreeing). 29 [2011] WASAT 58. -- 13 of 39 -- [2026] SASC 15 B Doyle J 12 • the burden created by the legislation was not ‘a restriction which arises from the law affecting an area in which the land lies’. The law in question applied to specific original assets or replacement assets and to no other land;30 and • the restriction arising under the legislation was a restriction on Broadcast Australia’s estate or interest in the land that was not independent of its personality as the successor of the Commonwealth to the land used historically by or on behalf of the Commonwealth for the provision of broadcasting services. The restriction was not related to ‘an estate of fee simple in the land’, but rather to Broadcast Australia’s estate or interest in the land.31 58 It is clear that the mere fact that a type of restriction on the use of land is specific to a particular parcel or a small number of parcels of land is not itself decisive as to whether it must be disregarded. 59 By way of illustration, the appellant relied upon an observation by Mullighan J in McEwin v Valuer-General32 (‘McEwin’) to the effect that it would be unreal to ignore the significance of the restrictions arising from the heritage status of a building when assessing site value.33 60 Although that approach was mandated by s 22B of the VLA, his Honour described that section as giving expression to a principle that he considered generally applicable.34 Whilst some aspects of the reasoning, but not the result, in McEwin, may require reconsideration following WSTI Properties,35 the proposition that the highest and best use of land is that which represents the most profitable use to which land can be put having regard to both planning and like controls and the circumstances of the land has been recognised in many authorities.36 61 Generally speaking, a planning control will have the hallmarks of a restriction on the use of land which is independent of the identity of the holder of the estate which is subject to tax, and may be contrasted with a private condition or a restrictive covenant. A planning control will not, generally speaking, involve 30 [2011] WASAT 58 at [63]-[64]. 31 [2011] WASAT 58 at [67]. 32 (1993) 60 SASR 241. 33 (1993) 60 SASR 241 at 247. 34 (1993) 60 SASR 241 at 247. In a similar vein, in upholding an appeal against a valuation which did not have regard to a heritage overlay affecting a property, Emerton J referred not only to s 5A(3)(b) of the Valuation of Land Act 1960 (Vic), but to Royal Sydney Golf Club: see Pattas v Stonnington City Council [2010] VSC 487 at [10]-[12]. 35 Mullighan J considered that because of the heritage restrictions, it was unrealistic to posit vacant land on the site of the Adelaide Club. The approach in WSTI Properties would involve asking whether the value of the land with the Adelaide Club as constructed is greater than the value that the land would have if that building had never been constructed. If the answer to that question is ‘no’ (because the site would otherwise have great commercial development potential), then the land is to be valued with the buildings present for that reason (and not for the reason that it is unlikely it will be demolished). 36 See, eg, ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447 at [41] (Warren CJ, Kellam JA and Osborn AJA). -- 14 of 39 -- [2026] SASC 15 B Doyle J 13 carving an interest or estate out of the fee simple, nor represent an encumbrance upon it. 62 Whilst the focus of the decision in WSTI Properties was upon what amounts to an ‘improvement’, it is consistent with a recognition that planning controls that apply to particular sites will not generally need to be disregarded if they would affect the highest and best use to which a hypothetical buyer could put the land. That case concerned a determination of ‘site value’ within the meaning of the Valuation of Land Act 1960 (Vic). The statutory definition was in these terms: site value of land, means the sum which the land, if it were held for an estate in fee simple unencumbered by any lease, mortgage or other charge, might in ordinary circumstances be expected to realise at the time of the valuation if offered for sale on such reasonable terms and conditions as a genuine seller might be expected to require, and assuming that the improvements (if any) had not been made; 63 That legislation also provided (omitting a presently immaterial proviso) that: improvements, for the purpose of ascertaining the site value of land, means all work actually done or material used on and for the benefit of the land, but in so far only as the effect of the work done or material used increases the value of the land and the benefit is unexhausted at the time of the valuation … 64 There was a heritage residence (‘Landene’), which was the subject of a site- specific heritage overlay, situated upon the land in question. The overlay restricted the development potential of the land in an area otherwise zoned ‘Commercial 1’. 65 The main issue was whether, in determining whether Landene was an improvement, the extent to which it increased the value of the land was to be assessed at the time of the valuation, or when the building was constructed. The Court held that the question was to be answered at the time of the valuation, notwithstanding the words ‘and the benefit is unexhausted at the time of the valuation’.37 66 In the course of its reasoning, the Court emphasised that the meaning of ‘improvements’ had to be approached by first considering the meaning of ‘site value’ and observed that it was apparent that the conventional concept of ‘market value’ inhered in the definition of ‘site value’ and ‘improvements’.38 Their Honours then observed that:39 "Market value" involves the conventional concept of a hypothetical prudent seller who would require from the hypothetical prudent buyer "the fair price of the land" if the hypothetical prudent buyer was purchasing the land "for the most advantageous purpose for which it was adapted".40 The most advantageous purpose for which land is "adapted" is the "highest and best use" of the land. In modern terminology, "adapted" or "highest and 37 The Victorian Court of Appeal had considered these words would only have work to do if the inquiry as to an increase in value was undertaken at an earlier point. 38 (2025) 99 ALJR 955; [2025] HCA 23 at [35]-[36] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). 39 (2025) 99 ALJR 955; [2025] HCA 23 at [37] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). 40 Spencer v The Commonwealth (1907) 5 CLR 418 at 440-441. -- 15 of 39 -- [2026] SASC 15 B Doyle J 14 best use" of land means the most valuable use of the land, objectively ascertained by reference to the hypothetical buyer, which is "physically possible, legally permissible and financially feasible".41 67 The Court emphasised that the first step in determining site value was to identify whether any putative improvements increased the value of the land, and by assessing whether, at the time of the valuation, the putative improvements increased that value.42 Their Honours went on:43 To explain further, the requirement that an "improvement" "increases the value of the land" begs the question – increases the value of the land over what value? The answer is that the "improvement" must increase the market value of the land compared to the market value of the land without the "improvement". Accordingly, the question essential to whether a putative "improvement" on land is an "improvement" as defined, being whether the putative "improvement" increases the value of the land and the benefit of that putative "improvement" is unexhausted, is to be determined by a comparison of the market value of the land with and without the putative "improvement". Otherwise, it is not possible to know if the putative "improvement" increases the value of the land or not. To enable a meaningful comparison, the alternative valuations are both to be conducted at the time of the valuation. And both alternative valuations are to be conducted based on the orthodox concept of market value, which carries with it the conventional understanding that the market pays for land at its highest and best use, properly understood not as the theoretical maximum development potential of the land which might be legally permissible and physically possible, but the most valuable objectively ascertained development potential which is legally permissible, physically possible and financially feasible. 68 After referring to a number of authorities including Goode v Valuer- General44 and Valuer-General v Fenton Nominees Pty Ltd,45 their Honours said:46 Properly understood, these cases are saying that the question whether a putative "improvement" is an "improvement" in the sense of increasing the value of the land is to be answered at the time of the valuation and by reference to market value. As noted, determining whether the market value of land has increased is a concept which requires a comparison of notional sales of the land for its highest and best use with the putative "improvements" and without them. There can be no doubt that under both alternatives (with and without the putative "improvements" on it) the land is to be taken as it is at the time of the valuation, as is the surrounding land, the market, and planning and other laws affecting the land.47 This has a particular importance if the land is subject to the substance of a legal constraint to which it would not be subject if it is assumed that the land does not have the putative "improvements" on it. With the putative "improvements" on the land, the substance of the legal constraint may confine the highest and best use of the land to the current use, so that for that part of the comparison the land is to be valued at that highest and best use. Without 41 See, eg, Australian Property Institute, Definitions (based on International Valuation Standards Council, International Valuation Standards Glossary), available at <https://www.api.org.au/standards/definitions/> [https://perma.cc/Z2GK-4VP2]. 42 (2025) 99 ALJR 955; [2025] HCA 23 at [39]-[41] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). 43 (2025) 99 ALJR 955; [2025] HCA 23 at [42] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). 44 (1979) 22 SASR 247. 45 (1982) 150 CLR 160. 46 (2025) 99 ALJR 955; [2025] HCA 23 at [56]-[57] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). 47 eg, Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 at 624-625. -- 16 of 39 -- [2026] SASC 15 B Doyle J 15 the putative "improvements" on the land, the substance of the legal constraint may or may not confine the highest and best use of the land to the current use. The valuer will have to consider the nature of the legal constraint – including, for example, if it is specific to the retention of the putative "improvements" or not – to decide the effect, if any, of the substance of the legal constraint in respect of the highest and best use of the land without the putative "improvements" on it. What cannot be done, however, is to avoid the issue of determining if a putative "improvement" is an "improvement" at the time of the valuation by such a comparison. 69 It is true that the Victorian legislation directed that in determining value, where relevant, the use to which land could be put at the relevant time, as well as the effect of any Act, regulation, local law, planning scheme or other such instrument which affects or may affect the use or development of such land was to be taken into account.48 However, in the passage above, when referring to ‘planning and other laws affecting the land’, their Honours referred to Royal Sydney Golf Club, which suggests that their Honours’ approach was one informed by the principles enunciated in that case, rather than specific provisions of the Valuation of Land Act 1960 (Vic). 70 In my view, the Court’s approach may be understood as being influenced by the recognition that concepts of market value were central to the definition of site value in the Victorian legislation, just as they are to the definition of site value in the VLA. The recognition that legal restraints relevant to value may be site specific and, indeed, may be affected by what has in fact been constructed on the site, appears to be inconsistent with any proposition that planning controls may only be brought to bear if they are generally, in the sense of widely, applicable. 71 Thus, while restrictions that are not imposed independently of the identity or particular title held by the taxpayer will usually need to be disregarded, planning controls that are applicable in part because of what an owner or a previous owner has done on the land may not, for that reason alone, necessarily have to be disregarded. 72 My review of the authorities suggests that there is no bright line test that distinguishes restrictions which, whilst referable to specific features of the particular property, are properly brought to account in valuing the highest and best use that can be made of an unencumbered estate in fee simple, from those which must be ignored because they comprise relevant restrictions upon the estate held by a taxpayer, even though they may also bind any purchaser of that estate. 73 A paradigm case of a restriction that falls into the former category is a restriction imposed by statute or by an instrument made under statute upon the use that can be made of the property, whoever its owner or occupier. 74 A paradigm case of a restriction that falls in the latter category is a restriction with depreciatory effect arising from the creation of an estate ‘out of’ the fee simple and which relevantly ‘burdens’ the freehold estate by conferring some other 48 Valuation of Land Act 1960 (Vic), s 5A. -- 17 of 39 -- [2026] SASC 15 B Doyle J 16 person or entity with rights over or in respect of the land. Thus, a licence or lease which contains a below market rental, a mortgage, or a restrictive covenant benefiting a neighbouring property,49 must obviously be ignored in valuing an unencumbered estate in fee simple. 75 At a high level, the distinction may be seen to be informed by the policy, referred to in Royal Sydney Golf Club, of taxing a person on the footing of and by reference to the highest estate, and ensuring that value which has been carved out of that estate in favour of another who is not subject to tax, is not lost to the revenue.50 As well, the efficacy of the rating and tax system would be endangered if a valuer assessing ‘site value’ had to enquire into the depreciatory effect on value of myriad private arrangements. 76 On the present state of the authorities, in order to determine whether a restriction with a depreciatory effect on value is to be disregarded, a multi-factorial assessment appears to be necessary. It may be relevant to consider whether the relevant restriction or burden: • applies, and if so directly or indirectly, to all persons on or using the property, or only to the owner (or taxpayer); • owes its existence to the identity or manner of acquisition of title by the owner or their predecessor in title, or is instead referable to objective features of the property or its environs; • is imposed by automatic operation or direct application of statute, and if not, the extent to which the process that led to imposition can be characterised as involving an exercise of public power or the exercise of private rights; • results in the conferral of rights or benefits on other parties and, if so, the public or private nature of the rights and benefits. 77 It may also be relevant to inquire into: • the means by which the restriction or burden may be enforced and whether it is likely to be enforced by a regulator or public body or irrespective of commercial considerations; and • whether the restriction or burden is of its nature likely to be able to be varied and if so to what extent and with what frequency. 49 cf. Goulston v Valuer-General (1924) 7 LGR 17, Griffiths v Valuer-General [1963] NSWR 150; (1962) 8 LGRA 315. 50 That said, as Macfarlan JA pointed out in Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 at [8], the logic that a land owner will have had the chance to require encumbrancers to contribute to statutory imposts such as rates or land tax applies readily to mortgages and leases but is less realistic where the restriction which is required to be ignored is a reservation to or in favour of the Crown (in that case, of minerals). -- 18 of 39 -- [2026] SASC 15 B Doyle J 17 78 The latter considerations may also go to the extent of the depreciatory effect of the putative restriction or burden if it is not required to be ignored,51 but, in difficult cases, they might also bear on the anterior question of characterisation. 79 Against that background it is necessary to consider the nature and incidents of a s 39d agreement under the CADC Act and of land management agreements under general planning legislation. Section 39d agreements 80 From its introduction in 1976, until the coming into operation of the Development Act 1993 (SA) (‘1993 Act’), development within the City of Adelaide was governed by the regime established under the CADC Act, rather than the Planning and Development Act 1966 (SA) (‘1966 Act’) or, later, the Planning Act 1982 (SA) (‘1982 Act’).52 81 A person could not undertake ‘development’ as defined in the CADC Act without the approval of the Council of the Corporation of the City of Adelaide (‘Council’).53 The Council could not approve developments that would affect State heritage items without the concurrence of the City of Adelaide Planning Commission (‘the Commission’), a body established under the Act.54 82 When deciding whether to grant approval, Council was required to have regard to the Principles of Development Control (‘the Principles’).55 Subject to limited exceptions, developments that would contravene certain identified provisions of the Principles were not able to be approved by Council without the Commission’s consent.56 83 Council could approve a development subject to conditions, with those conditions being binding on and enforceable against the person by whom the development was undertaken and any person who acquired the benefit of the approval.57 84 Part IVA of the CADC Act permitted the Governor to treat a proposed development as subject to a different regime for approval, if of the opinion that it was of major social, economic or environmental importance. 51 In Port Macquarie West Bowling Club Ltd v The Minister [1972] 2 NSWLR 63 at 65, Else-Mitchell J observed that some of the authorities establish that the prospect of relaxation of the restrictions under a prescribed planning scheme ordinance may properly be taken into consideration. 52 CADC Act, s 6. 53 CADC Act, s 23(1). 54 CADC Act, ss 11(1), 24(5) and 24a. 55 CADC Act, s 24(6). The Principles were set out in a document signed by a Minister and the Lord Mayor in 1976 as amended from time to time. Amendments to the Principles could be prepared by the Council and were required to be prepared if requested by the Commission. Ultimately it was for the Governor, having regard to the Minister’s recommendations, to approve any amendments: CADC Act, s 7. 56 CADC Act, s 25. 57 CADC Act, s 24(7). -- 19 of 39 -- [2026] SASC 15 B Doyle J 18 85 The CADC Act established a City of Adelaide Planning Appeals Tribunal constituted of a District Court Judge,58 with power to hear appeals against refusals by the Commission to consent to, or refusals by Council to grant, approvals, and in respect of conditions imposed by Council.59 A determination on appeal was ‘final and without appeal’.60 86 The CADC Act was amended from time to time. In 1985, the CADC Act was amended to incorporate a number of new provisions based on provisions in the 1982 Act, including ‘civil enforcement proceedings’ and ‘land management agreements’.61 87 As amended, Part VA of the CADC Act provided for civil enforcement proceedings by permitting Council or the Commission to apply to the District Court for an order under s 39a if a person contravened or failed to comply with a provision of the Act. The Court could order the respondent to refrain, temporarily or permanently, from the act or course of action constituting the contravention, or require the respondent to make good the contravention or default. Appeals lay to the Land and Valuation Court.62 88 In relation to ‘land management agreements’, s 39d was introduced in these terms: 39d—Agreements relating to preservation or development of land (1) The Council may enter into an agreement with any person relating to the development, preservation or conservation of land within the municipality of which that person is the owner. (2) The Council has power to carry out on private land work for which provision is made by agreement under this section. (3) An owner of land cannot enter into an agreement under this section without the consent of all other persons having a legal interest in the land. (4) The Registrar-General will, on the application of the Council made with the consent of the owner of the land, register such an agreement and enter a memorial of the agreement on the certificate of title or other instrument of title to the land. (5) Where a memorial of an agreement has been entered under subsection (4), the agreement is, on transfer of title to the land, binding on, and enforceable by or against, the successors in title to the owner who entered into the agreement. (6) The Registrar-General will, if satisfied on the application of the Council or the owner of the land that an agreement in relation to which a memorial has been entered under 58 CADC Act, s 27. 59 CADC Act, s 28. 60 CADC Act, s 32(3). 61 South Australia, Parliamentary Debates, Legislative Council, 15 May 1985, 4294 (The Hon C J Sumner, Attorney-General). 62 CADC Act, s 39c. -- 20 of 39 -- [2026] SASC 15 B Doyle J 19 this section has been rescinded or amended, enter a memorial of the rescission or amendment on the certificate of title or other instrument of title to the land. (7) An agreement under this section may provide for remission of rates that would otherwise be payable to the Council on the land but except as so provided such an agreement does not affect the statutory obligations of an owner of land. Land management agreements 89 From its introduction, the 1982 Act had contained, within Part VII (‘Land Management’), a provision in materially identical terms to s 39d of the CADC Act, albeit the party that was able to enter the agreements was the Minister or the relevant council.63 90 The earlier 1966 Act made no provision for land management agreements. The concept does not appear to have been adopted or adapted from any interstate planning regime, albeit similar regimes have subsequently been adopted elsewhere.64 There were, however, analogous agreements made under the South Australian Heritage Act 1978 (SA), and the Second Reading Speech in relation to the Bill that became the 1982 Act confirms that the concept of land management agreements was adapted from that context:65 There has been a growing interest in voluntary agreements as a means of ensuring sound land management. The present Act does not provide for making legal agreements which are binding on present and subsequent owners. Some so-called ‘gentlemen’s agreements’ have been made, and the Heritage Act has been amended to enable agreements to be made relating to matters relevant to that Act. Agreements afford a means of enlisting the cooperation of a land owner in pursuit of a particular objective. The Bill enables councils and the Minister to enter into agreements and also to ensure that agreements apply to successors in title. The power will enable agreements to be made on a wider range of matters than that contained in the Heritage Act, and will be useful in redevelopment areas. 91 During the period that the CADC Act and the 1982 Act were operative, the legislation providing more generally for the constitution of councils was the Local Government Act 1934 (SA). Section 36 of that Act provided that a council was a body corporate with the powers, functions and duties conferred on it by the Act or any other Act and, subject to those Acts, may enter into any kind of contract or arrangement. That section provided that no contract with a council was void by reason of any deficiency in the council’s juristic capacity, but it did not prevent an action to restrain a council from entering into such a contract.66 92 Upon the introduction of the 1993 Act, the CADC Act and the 1982 Act were repealed by ss 5 and 6 of the Statutes Repeal and Amendment (Development) Act 1993 (SA) (‘Amendment Act’). The Amendment Act provided that the Principles 63 1982 Act, s 61. 64 See, eg, Division 2 of Part 9 of the Planning and Environment Act 1987 (Vic). 65 South Australia, Parliamentary Debates, Legislative Council, 18 November 1981, 2002 (The Hon J C Burdett, Minister of Community Welfare). 66 Local Government Act 1934 (SA), s 36(4). -- 21 of 39 -- [2026] SASC 15 B Doyle J 20 under the CADC Act were adopted and applied as ‘Development Plans’ under the 1993 Act.67 93 The Acts Interpretation Act 1915 (SA) applied, except to the extent of any inconsistency with the Amendment Act, to the repeal of the 1982 Act and the CADC Act.68 It was also specifically provided that: • conditions attached to or applying in relation to approvals or authorisations granted under the CADC Act or the 1982 Act remained in force and bound owners and occupiers of the land to which the condition related;69 and • the repeal of those Acts did not affect any rights that accrued under them, nor the validity of any decision or authorisation made or granted under them.70 94 Whilst the Amendment Act specifically provided that a land management agreement under the 1982 Act would be taken to be an agreement under the corresponding provision of the 1993 Act, with the same force and effect as it had before the transitional date, there was no equivalent provision in respect of s 39d agreements under the CADC Act.71 95 As introduced, s 57 of the 1993 Act provided for entry by the Minister or a relevant council into agreements for the ‘management, preservation or conservation of land’. Curiously, the word ‘development’ was initially omitted from s 57(1). 96 There were other differences between s 57 and the predecessor provision in the 1982 Act. First, s 57(5) required the Registrar-General on application to make a note of the agreement against the relevant instrument of title (rather than ‘register’ the agreement), and s 57(6) provided that an agreement under the section had no force or effect until such a note was made. 97 Section 57(12) provided that the existence of an agreement under the section ‘may be taken into account when assessing an application for development authorisation under this Act’. There was no equivalent in s 39d of the CADC Act or in s 61 of the 1982 Act. 98 The 1993 Act contained a regime for the giving of enforcement notices by a council where it had reason to believe on reasonable grounds that a person had breached the Act.72 Any person could apply to the Environment, Resources and Development Court (‘ERD Court’) for an order to remedy or restrain a breach of the Act or the repealed Act, and that Court had power to require the respondent to refrain from activity in breach, make good a breach, cancel or vary a relevant 67 Amendment Act, s 16(1)(b). 68 Amendment Act, s 15(2). 69 Amendment Act, s 24(7). 70 Amendment Act, s 24(8). 71 Amendment Act, s 20. 72 1993 Act, s 84. -- 22 of 39 -- [2026] SASC 15 B Doyle J 21 authorisation, or pay damages including exemplary damages.73 It has also been accepted that a local council may have standing in an appropriate case to seek an equitable injunction to restrain contravention of a non-criminal statutory prohibition.74 99 Section 83 of the 1993 Act provided that for the purposes of the enforcement provisions, a contravention or threatened contravention of a land management agreement made under Part 5 was a ‘breach of [the] Act’. Consequently, the civil enforcement remedies were available in respect of a breach of an agreement made under s 57. 100 Some aspects and limitations of land management agreements were noted by Debelle J in Tarca v Hambrook.75 In that case approval was sought for three residential flat buildings in an area where the Development Plan generally prohibited such buildings, subject to a proviso that ‘aged accommodation may be considered’. The appellant sought to attract the operation of the proviso concerning aged accommodation by relying on a land management agreement made with the Council pursuant to s 61(2) of the 1982 Act. The agreement required the owner to ensure that at least one of the permanent occupants of each dwelling had attained the age of 55 years or greater and had retired from full time employment. 101 Debelle J said that the question whether a development should be permitted to proceed should, as a general rule, be determined without reference to a land management agreement.76 His Honour considered that the purposes for which land management agreements should be used were relatively limited and that they should not, generally speaking, be used where parties other than the owner have rights of occupancy over the land. He made the point that land management agreements could be varied or rescinded and, if their effect were to be decisive of planning approval, approval would then turn on a process over which third parties who might otherwise be heard in respect of planning decisions would have no involvement.77 102 In his Honour’s view, whilst the land management agreement would be binding on successors in title to the registered proprietor, it was difficult to see how a bona fide tenant who had entered into a lease in circumstances that did not comply with the land management agreement, but without knowledge of its terms, could be evicted at the suit of the council. Debelle J observed that the enforcement 73 1993 Act, s 85. 74 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [18]- [23] (Gleeson CJ, Gummow, Kirby and Hayne JJ), referring to Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 603-605 (Menzies J). 75 (1995) 86 LGERA 56. 76 (1995) 86 LGERA 56 at 60. 77 (1995) 86 LGERA 56 at 60-61. -- 23 of 39 -- [2026] SASC 15 B Doyle J 22 powers in s 85 were not expressed in terms that empowered the ERD Court to affect the rights of third parties.78 He went on:79 It is possible to identify other defects in this Land Management Agreement. Even if it were possible to enforce the agreement, the efficacy of the agreement would depend upon the willingness of the Council to enforce it as well as upon its ability to enforce it. It will obviously be difficult for the Council to monitor the age of the occupants to determine whether there was at least one occupant in each residential unit over the age of 55 years. The Council might also face legal difficulties in [enforcing] the restriction as to employment status of the occupants. … In my view the Tribunal has properly decided to have no regard to this Land Management Agreement. 103 Whilst Debelle J did not refer to s 57(12) of the 1993 Act, which was applicable even though the land management agreement had been entered into under the 1982 Act, that provision did not require the planning authority to give effect to the land management agreement. Accordingly, even if the provision was overlooked, it may not ultimately have affected the decision in the case. The provision was considered more closely by the Full Court in two decisions to which I will refer below. 104 Section 57 was amended by the Development (System Improvement Program) Amendment Act 2000 (SA) in several respects. Most relevantly, s 57(1) was amended to introduce the word ‘development’ as a proper subject matter for an agreement. 105 Section 57(2a) was introduced in these terms: (2a) The Minister or a council must, in considering whether to enter into an agreement under this section which relates to the development of land and, if such an agreement is to be entered into, in considering the terms of the agreement, have regard to— (a) the provisions of the appropriate Development Plan and to any relevant development authorisation under this Act; and (b) the principle that the entering into of an agreement under this section by the Minister or a council should not be used as a substitute to proceeding with an amendment to a Development Plan under this Act. 106 Later, in 2005, s 57A was introduced.80 78 (1995) 86 LGERA 56 at 62. 79 (1995) 86 LGERA 56 at 62. 80 Development (Miscellaneous) Amendment Act 2005 (SA). Section 57A contemplated a designated authority entering into an agreement with a person who was applying for a development authorisation under the Act that would, in the event that the development is approved, bind the person and, subject to identified conditions, any other person who has the benefit of the authorisation and the owner of the land. -- 24 of 39 -- [2026] SASC 15 B Doyle J 23 107 In Jolly v District Council of Yankalilla,81 the council had entered into a land management agreement with a corporation that had acquired a parcel of coastal land on terms that contemplated that the corporation would assume management of the land including the use, occupation and development of it. The corporation, as owner, promised that any development of the land ‘shall only allow or create buildings of a single storey’. 108 The corporation granted licences to occupiers of some 21 shack sites. One such occupier (the appellant) sought and was granted development approval to construct a second storey, but deviated from the approved plans in particular respects. Council served an enforcement notice, and the appellant subsequently sought planning approval for what he had constructed (to the extent it differed from what had been approved). The council as planning authority refused consent, pointing to the land management agreement. 109 Perry J (with whom Sulan and Layton JJ agreed) observed that, assuming it to be valid, s 57(12) provided that the existence of the land management agreement could be taken into account. He considered, however, that: • what regard should be paid to the provisions of a land management agreement will vary according to the circumstances surrounding an application for development approval;82 • as was pointed out in Tarca v Hambrook, they are of limited relevance in the determination of an application for development approval where a non-party to the agreement is in occupation of the land;83 • the enforcement provisions in the 1993 Act could not be invoked because a non-party to the land management agreement could not contravene the agreement, and there was no basis to conclude that the corporation had breached the agreement;84 and • the land management agreement did not appear to have application to the circumstances, because the shack was no longer a single-storey development.85 110 His Honour held that the ERD Court should have dealt with the matter on the basis that there was already a lawfully erected two-storey shack and that planning consent was sought for extensions to it. The application fell to be determined by reference to ordinary planning considerations. Whatever limited relevance the 81 (2006) 143 LGERA 428; [2006] SASC 53. 82 (2006) 143 LGERA 428; [2006] SASC 53 at [54]. 83 (2006) 143 LGERA 428; [2006] SASC 53 at [55]. 84 (2006) 143 LGERA 428; [2006] SASC 53 at [76]. 85 (2006) 143 LGERA 428; [2006] SASC 53 at [94]. -- 25 of 39 -- [2026] SASC 15 B Doyle J 24 land management agreement had to that process, if any, was a matter for the ERD Court to consider on the remittal of the matter.86 111 In Zweck v Town of Gawler (‘Zweck’),87 Blue J (with whom Kourakis CJ and Nicholson J relevantly agreed) observed that s 57(2a) provided a ‘soft constraint’ in two respects: it created a general principle and not a requirement that an agreement should not be used as a substitute to amending a Development Plan; and, secondly, it only required that regard be had to that principle and to the Development Plan.88 112 He also observed that whilst s 57(12) used the word ‘may’, it rendered the existence of a land management agreement a mandatory consideration when assessing a development application when the agreement was relevant to the development the subject of the application.89 113 Blue J said that the evident purpose of s 57 was to enable the Minister or a council to constrain future development by entering into a voluntary agreement with the landowner to that effect.90 114 However, if it did so, the agreement would not necessarily constrain the relevant authority deciding a later development application; it would not be an absolute barrier. It was a factor required to be taken into account but was not decisive.91 Blue J said this reflected a balance struck by the legislature between freedom to contract between councils and landowners concerning land use on the one hand and the interests of the community that there not be an absolute clog in perpetuity on land use on the other hand.92 His Honour went on to say that:93 On an application for development authorisation for a land use precluded by a land management agreement, the relevant authority is required to weigh the existence and effect of the land management agreement against other factors impacting the desirability of the grant of development approval. In particular, a relevant authority would take into account changes in circumstances since the entry into the land management agreement including any change in the underlying rationale for the preclusion contained in it and any change in the relevant Development Plan. If development authorisation is granted notwithstanding a provision of a land management agreement precluding that development, the consequence depends on the proper construction of section 57. It may well be a necessary implication of subsection 57(12) that the grant of development authorisation overrides the provision of the land management agreement pro tanto while the provision continues to have future operation in respect of 86 (2006) 143 LGERA 428; [2006] SASC 53 at [97]. 87 (2015) 124 SASR 319. 88 (2015) 124 SASR 319 at [86]. 89 (2015) 124 SASR 319 at [88]. 90 (2015) 124 SASR 319 at [89]. 91 (2015) 124 SASR 319 at [90]. 92 (2015) 124 SASR 319 at [90]. 93 (2015) 124 SASR 319 at [91]-[92]. -- 26 of 39 -- [2026] SASC 15 B Doyle J 25 any other development to which it applies.94 Alternatively, it may be the statutory intention that the conflict between the development authorisation and land management agreement is to be resolved on an application to the Environment Court under section 85 for enforcement of the land management agreement in which event the Council concedes the Environment Court would have a discretion to be exercised judicially not to enforce the land management agreement because of the existence of the development authorisation. It is not necessary for the disposition of this appeal to determine whether on its proper construction the Act provides for the former or the latter. In either event there is a mechanism to resolve a potential conflict between a land management agreement and a subsequent development authorisation and a land management agreement will not be a permanent clog on development regardless of future circumstances. 115 Whilst s 57 utilised the mechanism of an agreement, it is apparent from the decision in Zweck that an agreement with the extra-contractual statutory incidents contemplated by s 57 would only be valid to the extent that it related to the ‘development, management, preservation or conservation of land’ within the meaning of s 57(2). In Zweck, whilst a provision of the land management agreement precluding subdivision met that description, a provision purporting to preclude the making of an application for subdivision was found to be too indirect, and it was inconsistent with the possibility – allowed for by s 57(12) – that an authorisation might be granted notwithstanding that the activity is contrary to an extant land management agreement.95 116 Sections 192 and 193 respectively of the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’) are in substantially the same form as ss 57 and 57A of the 1993 Act, save that they now refer to the Planning and Design Code rather than the relevant Development Plan. Land management agreements in force under Part 5 of the 1993 Act before a designated transitional date are taken to be in force under the PDI Act.96 Section 212 of the PDI Act, like s 83 of the 1993 Act, makes a contravention or threatened contravention of an agreement made under the Act a breach of the Act for the purposes of the enforcement regime. 117 Accordingly, land management agreements under the 1982 Act and the 1993 Act are effectively continued in operation under the PDI Act including under the civil enforcement regime, but s 39d agreements simply retain the effect that they had prior to the repeal of the CADC Act. 118 Of course, there are other changes introduced by the PDI Act that result in land management agreements, whether old or new, operating in a different legislative context. Most significantly, the body tasked with deciding whether to approve a development will now typically be a council’s assessment panel rather than the council itself. 94 In other words, the conflict between the development authorisation and the land management agreement is to be resolved in the same manner as a conflict between Commonwealth and State legislation under section 109 of the Constitution. 95 (2015) 124 SASR 319 at [95]-[99]. 96 PDI Act, Schedule 8, cl 32(2). -- 27 of 39 -- [2026] SASC 15 B Doyle J 26 119 The question left open in Zweck fell to be decided, albeit in the context of the PDI Act, in Zhengtang Precinct Loft Pty Ltd v Corporation of the City of Adelaide (‘Zhengtang’).97 In that case a proposed development would have contravened a land management agreement but was approved under the PDI Act. 120 The Court of Appeal traced the legislative history of the land management agreement provisions before observing that there were several features of both the 1993 Act and the PDI Act that tended against a construction that would have a development authorisation automatically override an inconsistent provision within a land management agreement, and tended to support a construction which would permit the ERD Court to exercise a discretion not to enforce such a provision.98 121 The Court observed: [132] The first is that, had Parliament intended that a development authorisation automatically override an LMA to the extent of any inconsistency, then one might have expected Parliament to say so expressly, and in plain terms. [133] Secondly, it is to be acknowledged that the legislative schemes, by making the provisions of the relevant Development Plan or Code a relevant consideration when entering into an LMA,99 and by making the existence of an LMA a relevant consideration when assessing an application for development authorisation,100 establish a link between an LMA and the development authorisation. However, it is significant that the former only applies to LMAs which relate to the ‘development’ of land, and does not apply to LMAs which relate to the management, preservation or conservation of land. It would be an odd consequence were the legislative schemes in the Development Act and PDI Act to be construed as causing a development authorisation to automatically override any LMA, when it does not even require consideration of the Development Plan or Code when entering into some of those LMAs (that is, LMAs relating to the management, preservation or conservation of land, rather than the development of land). [134] It is also significant that these statutory links between LMAs and any development authorisation (and hence the planning policy, including Development Plan or Code, against which a development application is assessed) are expressed in non- mandatory terms; that is, in terms which require consideration of any inconsistency, but which contemplate the possibility that an LMA might be entered into, or a development authorisation given, despite the existence of such inconsistency.101 Expressed in this way, the statutory links suggest a more subtle or nuanced relationship between an LMA and a subsequent development authorisation, rather than a relationship in which the latter automatically overrides the former to the extent of any inconsistency. [135] Following on from this, the evident purpose of the legislative recognition of LMAs in s 57 of the Development Act and s 192 of the PDI Act is to enable the Minister or a council to constrain future development by entering into a voluntary agreement 97 [2024] SASCA 148. 98 [2024] SASCA 138 at [131] (Livesey P, S Doyle and Bleby JJA). 99 1993 Act, s 57(2a); PDI Act, s 192(4). 100 1993 Act, s 57(12); PDI Act, s 192(18). 101 Zweck v Town of Gawler (2015) 124 SASR 319 at [86]-[88] (Blue J). -- 28 of 39 -- [2026] SASC 15 B Doyle J 27 with the landowner to that effect.102 It is to be expected that this might extend to constraints which are additional to, or differ from, those that exist under the planning policy (reflected in the relevant Development Plan or Code). If an LMA were to be automatically overridden by any development authorisation based upon the planning policy in a Development Plan or Code, then this would significantly undermine the intended operation of LMAs. As explained above, there is a particular risk of this occurring under the PDI Act given that the relevant authority for determining development authorisation will not be a party to the relevant LMA. [136] In addition to the above, it is significant that the relevant Development Plan or Code may be amended without the agreement of the parties to an LMA. This may lead to inconsistencies with the LMA which were not present at the time of its creation. This may in turn result in the favourable assessment of a subsequent development application against the Development Plan or Code. The role and purpose of an LMA would be significantly undermined if it could be automatically overridden by a decision of a non-party to grant development authorisation in the above circumstances. Not only would the contractual expectations of the parties to the LMA be disappointed, but also the ability of third parties to obtain assurance from the terms of an LMA noted on the title to the relevant land would be compromised. [137] The Attorney-General also referred the Court to provisions of the Development Act and PDI Act which expressly contemplate that an LMA may be amended or rescinded, and which prescribe the obligations of the Registrar-General in that event. In particular, under s 57(8) of the Development Act, the Registrar-General must, if satisfied on the application of the Minister, the council or the owner of land that an LMA has been rescinded or amended, enter a note of the rescission or amendment against the instrument of title, or against the land. Section 192(15) of the PDI Act is in equivalent terms. The Attorney-General also noted that an LMA may itself include a mechanism for variation, waiver or the like. The Attorney-General contends that the existence of these mechanisms for bringing the operation of an LMA (or some of its provisions) to an end, speaks against a subsequent grant of development authorisation automatically overriding an LMA to the extent of any inconsistency. Whilst perhaps not a matter of great significance, this is a further matter tending against a construction with that consequence. [138] In summary, having regard to the above features of the legislative schemes, we do not consider that the Development Act or PDI Act should be construed as giving rise to any implication that a development authorisation operates automatically to override an LMA to the extent of any inconsistency. There is no clear textual basis for this construction. Further, whilst the schemes recognise the link or connection between the provisions of an LMA and the planning policy reflected in the relevant Development Plan or the Code, and may be taken to contemplate some mechanism for resolving inconsistency with a development authorisation against these instruments, the automatic overriding of an LMA to the extent of any inconsistency with a development authorisation does not sit comfortably with the nature and purpose of LMAs. It is too blunt a solution. For that reason, we would reject the construction contended for by Zhengtang in its first additional ground of appeal. [139] However, we consider that there is merit in the construction contended for in Zhengtang’s second additional ground of appeal. Construing the relevant provisions of the Development Act and the PDI Act as recognising a discretion on the part of the ERD Court to not enforce a provision or provisions of an LMA in the event of its inconsistency with a subsequent development authorisation would, in our view, 102 Zweck v Town of Gawler (2015) 124 SASR 319 at [89] (Blue J). -- 29 of 39 -- [2026] SASC 15 B Doyle J 28 enable the resolution of any inconsistency in a manner that is consistent with the nature and purpose of LMAs, and the planning regimes provided for in those Acts. [140] To elaborate, the existence of the express statutory links which we have described (between the terms of an LMA and a subsequent application for planning consent) provides a sufficient basis for the ERD Court to determine, in an appropriate case, that an action to enforce an LMA which is inconsistent with a subsequent grant of authorisation should not succeed. [141] Whilst the existence of an inconsistency would be a relevant consideration, whether it is ultimately appropriate to enforce the relevant LMA will depend upon the circumstances of the particular case. Significant among these circumstances will be the apparent rationale for entry into an LMA. It is reasonable to expect that this rationale will often be able to be ascertained from a consideration of the terms of an LMA, particularly its recitals. [142] In order to illustrate the potential significance of the rationale for an LMA in resolving an inconsistency with a later development authorisation, the Attorney- General hypothesised two LMAs. He hypothesised that both of these LMAs operated to prohibit sub-division of a parcel of land (as was the situation in Zweck v Town of Gawler). In the case of the first hypothetical LMA, the rationale for the prohibition of further division was a lack of infrastructure to service any further division of the land. In the case of the second, the rationale related to the unique circumstances of the land, such as its particular historical or environmental significance to the State. The subsequent connection or improvement of infrastructure to the land would be a consideration which would be relevant to (and tend to undermine) the rationale for the first LMA, and hence may support a decision not to enforce the LMA to the extent of the inconsistency. An attempt to enforce this LMA by the relevant Council may be seen as inconsistent with the rationale for its existence. However, the same change in circumstance would not be relevant to the rationale for the second LMA and so may not provide any basis for declining to enforce that LMA. [143] Whilst a decision not to permit enforcement of an LMA would, on the face of it, be inconsistent with the binding contractual nature of an LMA, it is to be remembered that LMAs are a creature of statute, and in particular a creature of the planning regimes established under the Development Act and PDI Act. The existence of a mechanism for the resolution of inconsistency which may permit primacy of the planning policy underpinning the relevant Development Plan or Code would, in our view, be consistent with the promotion and facilitation of development, and the consistency and certainty in planning outcomes, sought to be achieved by the planning regimes enacted through the Development Act and PDI Act. [144] Further, unlike a construction which would permit an LMA (or part of it) to be automatically overridden without any necessary involvement by the parties to the LMA, permitting an inconsistency to be addressed through a discretion on the part of the ERD Court in enforcement proceedings would be more consistent with the contractual nature of an LMA. It would involve the inconsistency being addressed in court proceedings in which the parties to, and affected by, the LMA could be heard. The provisions of an inconsistent LMA may in some cases prevail, but in other cases yield to the planning policy reflected in a development authorisation. [145] Whilst the ERD Court might be slow to decline to enforce the provisions of an LMA, one can well imagine circumstances where that would seem to be an appropriate course that would be consistent with the overall purposes of the Development Act or -- 30 of 39 -- [2026] SASC 15 B Doyle J 29 PDI Act, and be an appropriate mechanism for avoiding an LMA becoming ‘a permanent clog on development regardless of future circumstances’.103 [146] For these reasons, we consider there is merit in the second of Zhengtang’s proposed additional grounds of appeal. 122 Before considering the light thrown by the foregoing discussion of land management agreements (including under later legislative regimes) upon the characterisation of a s 39d agreement for the purposes of a valuation of ‘site value’, the effect on the Development Deed of the repeal of the CADC Act should be addressed. Repeal of the CADC Act 123 Before the Tribunal, the respondent contended that the Deed had not been registered until after the repeal of the CADC Act and therefore was invalidly registered. 124 The Tribunal did not accept that argument and, although the respondent filed a notice of contention pursuing that contention, it was abandoned in oral argument. 125 I therefore proceed on the basis that it was validly registered under or pursuant to the repealed provisions. 126 That being the case, s 16(1) of the Acts Interpretation Act 1915 (SA) had the effect that, unless a contrary intention appeared, the repeal of the CADC Act did not: (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or (d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry … 127 Section 32(2)(d) and (e) of the Legislation Interpretation Act 2021 (SA) is in like terms. No submission was advanced that the burden upon a successor in title, imposed by s 39d(5), and the enforcement rights enjoyed by Council, were not preserved by these provisions. 128 As I will mention later, a different proposed contention was advanced during the hearing to the effect that later events have caused the Development Deed to be rescinded or unenforceable, but that is a separate matter. Characterisation of the Development Deed 129 On the basis that the Development Deed has an effect that continues despite the repeal of the CADC Act, how are the restrictions on development contained 103 Zweck v Town of Gawler (2015) 124 SASR 319 at [92] (Blue J). -- 31 of 39 -- [2026] SASC 15 B Doyle J 30 within it to be characterised when assessing the value of an unencumbered estate in fee simple in the land to which the Deed applies? 130 Section 39d agreements relate to the development, preservation or conservation of land and were entered into by a council which, at least for a period, had a central role in administering the CADC Act and, later, in connection with planning matters under the 1993 Act. In that sense, the capacity for Council to enter into a s 39d agreement could be said to have formed part of the ‘planning controls’ applicable to land in the City of Adelaide. 131 Once registered, and subject to having the necessary connection with development, preservation or conservation of land,104 the provisions of a s 39d agreement were binding upon a subsequent owner, by force of statute. In that sense, s 39d agreements are not mere private agreements. 132 Further, insofar as a s 39d agreement limited development activity on the part of the owner, it could do so without necessarily conferring a property right or estate upon Council or anyone else. 133 These features may be said to point in favour of treating a s 39d agreement as a restriction upon the use of land arising under a planning law and imposed for public purposes, as distinct from an encumbrance or condition or restrictive obligation affecting the titles to specific parcels of land. 134 However, the fact remains that land management agreements and s 39d agreements are not imposed by statute or under a statutory power. They depend upon a land owner having agreed to enter into an agreement. Even when their provisions bind a successor in title by reason of registration: • any restriction found in the agreement does not directly affect any party other than the owner of the land, and, in that sense, applies as a restriction on a particular type or types of title; and • development approval may still be granted even where the development would contravene the agreement. 135 Moreover, in the case of a s 39d agreement, as distinct from land management agreements picked up by the 1993 Act or the PDI Act, a contravention of the agreement was not treated as a contravention of the relevant legislation for the purposes of civil enforcement proceedings. 136 Enforcement of a s 39d agreement would require resort by Council to a Court with jurisdiction to grant injunctions in equity. The grant or withholding of such relief is discretionary. As Zhengtang illustrates, even where the civil enforcement regime is available in respect of a contravention of a land management agreement, there is a discretion not to enforce the agreement. The discretion not to grant an 104 cf. Zweck at [95]-[99] (Blue J, Kourakis CJ and Nicholson J relevantly agreeing). -- 32 of 39 -- [2026] SASC 15 B Doyle J 31 equitable injunction in aid of a s 39d agreement must be at least as wide. Indeed, it is likely wider because, unlike in the case of a land management agreement entered into after the amendment to s 57(2a) of the 1993 Act in 2000, Council was not required to have regard to the relevant Development Plan (or Principles) before entering into the agreement. 137 To recapitulate, whilst the capacity to enter s 39d agreements could be said to form part of the suite of planning controls available to Council whilst the CADC Act was on foot, their character was very different from restrictions arising from planning instruments made under legislation or decisions made by planning authorities to approve or refuse development authorisation. 138 It may be accepted, as the appellant submitted, that s 39d agreements, like land management agreements, have often been entered into in circumstances where land owners have perceived that, unless they did so, a particular development might not proceed, or where they perceived that entry into the agreement was a commercially necessary quid pro quo for some other concession or bundle of rights, potentially involving negotiations with nearby land-owners. That, however, does not render them relevantly involuntary. 139 The fact is, a land owner could always seek development approval in the ordinary way, and, if dissatisfied with the outcome, could challenge it in the City of Adelaide Planning Appeals Tribunal. Presumably, a land owner agreeing to enter a s 39d agreement containing a restriction on future development will have done so because they perceived that entry into the agreement secured them advantages, directly or collaterally, to which they might not otherwise be entitled, or which might not otherwise have been secured without delay, cost and risk. 140 I interpolate that I have considered, but decided not to receive as fresh evidence on the appeal, material which appears to bear out that Council conveyed that its foreshadowed approval of a development application was premised upon the then-owners of the Property entering into the Development Deed. 141 I have reached that decision because the material could have been obtained and relied upon before the Tribunal and because I am not satisfied that it would have an important influence on the result of the appeal.105 That is in circumstances where the same material suggests that the restrictions in the Development Deed were part of a broader ‘package deal’ in which it seems likely that the then-owners derived perceived advantages. The restrictions do not appear to reflect principles which, irrespective of the then-owners’ plans for the Property, and the impact of those plans on a neighbouring property, Council would inevitably have sought to impose by one planning control or another. In that sense they have a link with the identity and, more relevantly, the proposed activities of, the then-owners. 105 Draoui v Le [2021] SASCA 33 at [102]-[103] (Doyle JA, Lovell J agreeing). -- 33 of 39 -- [2026] SASC 15 B Doyle J 32 142 Further, whilst this factor on its own would not be decisive, the fact that a s 39d agreement may be varied or rescinded with Council’s agreement tends to emphasise the essentially private operation of the rights and restrictions arising under it. There must always have been a reasonable prospect that Council would in the future agree to revisit or perhaps rescind a restrictive provision as relates to future development if it became significantly out of step with the broader planning framework. 143 Whilst I consider that the matter is relatively finely balanced, applying the multi-factorial approach I described earlier in paragraphs [72]-[78], I conclude that the Development Deed is a restriction on the appellant’s estate which should be ignored in valuing an unencumbered estate in fee simple in respect of the Property. 144 Despite the circumstance that entry into a s 39d agreement could be considered part of the suite of planning controls available to Council under a planning regime that applied across the city and was similar to a regime otherwise then applicable across the State, the restrictive provisions of the Development Deed: • were not unilaterally imposed upon the then-owners of the Property, but were agreed to as part of and in connection with a particular proposed use of the site by the then-owners; • were not and are not binding upon any estate-holder or user of the Property apart from the owner; • did not and do not preclude planning approval being granted to the then- owners or current owners respectively for a development which is inconsistent with the restrictions in the Development Deed; • were not and are not enforceable under any statutory civil enforcement regime; • are only enforceable by an injunction in equity which may be withheld for a variety of discretionary considerations; and • may be amended or rescinded by agreement with Council. 145 These features in combination lead me to characterise the restriction in the Development Deed as within the category of ‘an encumbrance or condition or restrictive obligation affecting the titles to specific parcels of land’. 146 I therefore reject the grounds of appeal that depend upon the proposition that the Tribunal erred by failing to have regard to the Development Deed when determining the site value of the Property.106 106 Grounds 1, 2, 3, 4 and 6. -- 34 of 39 -- [2026] SASC 15 B Doyle J 33 Proposed notice of alternative contention 147 This conclusion makes it unnecessary to decide whether the respondent should be permitted to advance an alternative contention to contend, inter alia, that the Development Deed was rescinded prior to the valuation date. 148 Central to that argument was a document said to comprise a resolution on 26 July 2010 that Council ‘consents to rescind the [Development Deed] currently registered [on the title]’ and ‘authorises the affixation of the Common Seal as necessary to give effect to Council’s resolutions in this matter and that this be undertaken by the Lord Mayor and Chief Executive Officer’. 149 In support of its alternative contention, the respondent emphasises that, in 2011, the appellant received planning approval, and in 2012, it constructed, additional car park levels, with the result that the building exceeded that contemplated by the Development Deed. Council did not oppose that application. This is said to be consistent with a conclusion that the Development Deed has been rescinded or is otherwise inoperative. The respondent’s contention is that even though no memorial of the rescission of the Development Deed has been noted on the certificate of title pursuant to s 39d(6), it is no longer operative. 150 The proposed notice of contention raises a number of contested issues about the conduct of the matter before the Tribunal, the inferences available from the admittedly incomplete evidence and the legal consequences of informal conduct in the context of the provisions of s 39d. A further complication is that, if the Development Deed were taken to be rescinded ab initio, it might be debated whether any previous agreement extinguished by that deed was revived. 151 Given it is not necessary to do so, I prefer not to express a concluded view about these issues. My inclination, however, would have been not to permit the respondent permission to amend its notice of contention to advance these contentions in circumstances where it would have been open to it to raise the contentions on a more complete evidentiary foundation on the occasion of a subsequent year’s valuation.107 Did the Tribunal err by failing to determine whether the existing structures on the Property constituted improvements? 152 Having determined that the Tribunal was entitled to disregard the depreciatory effect (if any) of the Development Deed it becomes necessary to consider whether the Tribunal erred by failing to consider whether the existing structures on the Property constituted improvements. 107 Had I reached a different view about whether the s 39d agreement was properly disregarded, the questions sought to be agitated about conduct subsequent to its entry might be some of a larger suite of issues that might be explored in any future valuation. Those issues would include whether, even assuming the Development Deed was not to be disregarded, it would nevertheless be open to a valuer to make allowance for the prospect of the relaxation of the restrictions contained within it: cf. Port Macquarie West Bowling Club Ltd v The Minister [1972] 2 NSWLR 63 at 65 (Else-Mitchell J). -- 35 of 39 -- [2026] SASC 15 B Doyle J 34 153 As explained in WSTI Properties, that exercise requires a comparison between the market value of the property for its highest and best use with the putative improvements and without them. 154 The respondent did not dispute that that was the required analysis, but submitted that the Court could not conclude that the Tribunal or the valuer whose opinion it adopted erred by failing to comply with the required approach. The opinion ultimately adopted by the Tribunal, as noted earlier, was that expressed in Ms Gaetjens’ second report. 155 In order to consider whether that is the case, it is necessary briefly to identify aspects of Ms Gaetjens’ first and second reports. 156 Ms Gaetjens’ first report proceeded on the assumption that the Development Deed ‘effectively limits the development or redevelopment of the subject property to a 5 storey car park building including a retail component at ground level and commercial component on the first, second, third and fourth storey’. She also assumed the Deed required ongoing provision for a connecting access ramp. Ms Gaetjens noted that, otherwise, the relevant Development Plan prescribed no building height limit. Having regard to the Development Deed, she considered the existing use was the highest and best use. In a section of her report headed ‘Improvements’, she described the structures erected on the site and then stated: For the purposes of this assessment of Site Value the building improvements established on the site have been disregarded. 157 After making some observations about market conditions at the valuation date, Ms Gaetjens adopted the ‘Comparable Transactions Method’ (formerly known as ‘direct comparison’) as the most appropriate valuation methodology. 158 The sales evidence upon which Ms Gaetjens relied comprised four sales of land in the ‘CBD’ which were regarded as suited to commercial development of a ‘broadly comparable nature’. One property was undeveloped, and the other three, whilst sold as development sites, had warehouse-type constructions on them. None were sold with structure equivalent to the multi-storey building, the subject Property. 159 Ms Gaetjens identified a per square metre sale value range of $1,957 to $4,782. Bearing in mind the features of the sites and the applicable height restrictions of them, compared with that permissible under the Development Deed, she considered that a rate towards the lower to mid portion of the analysed rates was appropriate, being $2,500 per square metre. That produced a site value for the Property that was rounded to $8.8 million. 160 Ms Gaetjens’ second report was prepared on the basis of the same instructions as her first report save that she was to disregard the Development Deed. On the basis that there was no prescribed height limit at the date of the valuation, the highest and best use was a ‘commercial / mixed use development’. -- 36 of 39 -- [2026] SASC 15 B Doyle J 35 Ms Gaetjens again adopted the comparable transactions method. This time, however, she included a fifth sale of land comprising a two storey commercial building with holding income. It was sold subject to no prescribed building height limit and the building was demolished following sale to make way for a 33 storey residential tower. The property sold on the basis of a rate of nearly $5,000 per square metre. 161 Ms Gaetjens identified a relevant rate for the subject Property as being within the mid to upper portion of the analysed range, being $3,500 per square metre. That resulted in a rounded site value of $12.3 million. 162 It is tolerably clear that in fixing a site value in the second report, Ms Gaetjens adopted the same approach as was expressed in her first report. That is to say, the ‘building improvements established on the site have been disregarded’. Had a different approach been taken, the second report would have said so. 163 The question, then, is whether that approach was flawed (and the Tribunal erred by adopting it) because, before disregarding the building improvements (and thus conducting a comparison approach by reference to sites that were either undeveloped or contained warehouse or other low-level improvements at the time of sale), it was necessary to have considered whether the Property was more valuable with the existing structures than it would be without them. 164 The respondent submitted that there was insufficient reason to doubt that the requisite analysis had been undertaken. It should be inferred, submitted the respondent, that Ms Gaetjens had reached the conclusion that the existing structures did add value and that this explains why she disregarded them and valued the Property as though it was undeveloped. 165 In my view, the cross-examination of Ms Gaetjens suggests otherwise. When asked whether she saw the car parking on the site ‘at the moment as improvements to the property for the purposes of site value’, she answered ‘Site value? Site value assumes it’s vacant’. A short while later she said ‘you actually look at site value assuming that the building improvements don’t exist’. This suggests that Ms Gaetjens assumed rather than determined that the Property was to be valued as if it were vacant in the sense of undeveloped. 166 To be fair to Ms Gaetjens, the cross-examiner did not suggest that was the wrong approach. However, as illustrated by the decision in WSTI Properties, handed down after the Tribunal’s decision, it ought not be assumed that existing structures, even if they generate income, are necessarily improvements. Often that will be the case, at least where a business undertaking is carried out using the structures, because undeveloped land will usually not generate income. 167 But if the highest and best use of the land would entail something that requires the existing structures to be demolished, it may be that, despite the holding -- 37 of 39 -- [2026] SASC 15 B Doyle J 36 income they produce, the cost of demolition of those structures so exceeds the income they might generate that they are to be treated as ‘worsements’. 168 In my view, Ms Gaetjens and the Tribunal erred by failing distinctly to consider whether the value of an unencumbered fee simple in the Property was higher with the existing structures than it would be had the structures not been erected. 169 The question to my mind is whether the error is material. Is it inevitable that the same result would have followed if the exercise had been undertaken? The mere fact that Ms Gaetjens considered the existing use not to be the best and highest use does not necessarily mean that she (or the Tribunal) regarded the existing structures as detracting from the value that the site would have in an undeveloped form. 170 It can be accepted on the basis of the evidence that was before the Tribunal that, if the site were presently undeveloped, a future development would not replicate the existing structures and would likely comprise a significantly higher commercial / mixed use development. But the question that WSTI Properties requires to be posed is different. It is whether a hypothetical purchaser would pay more for the Property: • if it were undeveloped, and therefore ready for development, subject to the incurring of the capital outlay necessary to construct substantial new structures; or • as it is, with the income the existing structures can generate, and with the viability of any future redevelopment needing to ‘factor in’ potentially significant demolition costs. 171 In circumstances where there was some evidence before the Tribunal from a quantity surveyor that demolition of the existing structures would exceed $10.5 million (plus GST), I am not prepared to conclude that had these issues been considered the same result would inevitably have followed. And it may be that consideration of these issues might have prompted further consideration to be given to the relevance and weight to be given to comparable sales more generally. 172 It is appropriate, in my view, to uphold this ground108 and to allow the appeal for the purpose of remitting the matter for further consideration in accordance with these reasons. 173 This is on the basis that it will be for the Tribunal to consider whether and to what extent it should permit additional evidence, or the recalling of witnesses for further cross-examination. Whilst in many contexts it may be appropriate to confine parties on a remittal to the evidence adduced at the first hearing, the Tribunal may consider that, with the benefit of the High Court’s decision in WSTI 108 Ground 5. -- 38 of 39 -- [2026] SASC 15 B Doyle J 37 Properties, and because a determination of site value may have ongoing significance in subsequent valuation years, greater latitude is appropriate in this case. Ground concerning comparable sales 174 Had I not upheld the ground of appeal just discussed, I would have addressed and dismissed the ground of appeal concerning the Tribunal’s treatment of particular comparable sales considered by Mr Bell.109 I would have concluded that the ground of appeal complained of a mere difference of opinion to which the deference standard of appellate review does not respond. 175 However, given that I have determined to remit the matter for further consideration, the Tribunal will be in a position to reconsider the relevance and weight to be given to Mr Bell’s comparable sales in assessing the Property’s site value on the required valuation hypothesis. Whilst it is not apparent that the Tribunal necessarily assumed otherwise, I indicate that I accept that the fact that a sale post-dates the valuation date,110 or concerns distant property,111 does not of itself require it to be excluded from analysis. Whilst care must be taken, subsequent sales might in some cases throw backwards light on the market conditions prevailing at the relevant valuation date and bearing upon the subject Property. Disposition 176 The appeal is allowed on the limited basis identified and the matter is remitted to the Tribunal for further consideration in accordance with these reasons. 109 Ground 7. 110 See, eg, Daandine Pastoral Company Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299 at 304 (Williams J). 111 See, eg, Crompton v Commissioner of Highways (1973) 5 SASR 301 at 317 (Wells J). -- 39 of 39 --