RAYMOND KHABBAZ v RYMILL PARK APARTMENTS PTY LTD [2023] SASCA 10
On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE
PARKER) [2022] SASC 11
First Appellant: RAYMOND KHABBAZ Counsel: MR M RODER KC WITH MR D BILLINGTON -
Solicitor: EZRA LEGAL
Second Appellant: RJK (SA) PTY LTD Counsel: MR M RODER KC WITH MR D BILLINGTON -
Solicitor: EZRA LEGAL
First Respondent: STATE PLANNING COMMISSION No Attendance
Second Respondent: MINISTER FOR PLANNING No Attendance
Third Respondent: RYMILL PARK APARTMENTS PTY LTD Counsel: MR S HENRY KC WITH MR
J RODER - Solicitor: BOTTEN LEVINSON LAWYERS
Fourth Respondent: THE TRUSTEE FOR RYMILL PARK APARTMENTS UNIT TRUST
Counsel: MR S HENRY KC WITH MR J RODER - Solicitor: BOTTEN LEVINSON LAWYERS
Interested Party: ATTORNEY GENERAL OF SOUTH AUSTRALIA Counsel: MR S WHITTEN
WITH MS J CLARE - Solicitor: CROWN SOLICITOR’S OFFICER
Hearing Date/s: 09/08/2022
File No/s: CIV-22-002495
A
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
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.
KHABBAZ & ANOR v STATE PLANNING COMMISSION &
ORS
[2023] SASCA 10
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
16 February 2023
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING -
DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND
AGREEMENTS - INTERPRETATION AND CONSTRUCTION
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING -
DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND
AGREEMENTS - VALIDITY
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING -
DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS -
RESIDENTIAL
Appeal against the decision of a judge of the Supreme Court.
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The third and fourth respondents (collectively, ‘RPA’) are developers of a proposed apartment
building at 2-6 Hutt Street, Adelaide, being at the south-eastern corner of the intersection of Hutt
Street and East Terrace.
The appellants (collectively, ‘RJK’) occupy and own a house on East Terrace, Adelaide, very close
to the proposed development.
The first and second respondents took no active part in the proceedings.
The proposed building will be 53.9 metres. It will be located within the Capital City Zone (‘CCZ’)
established by the Adelaide (City) Development Plan (‘DP’), in an area with a maximum building
height of 22 metres.
The Development Act 1993 (SA) was repealed, in stages, by the Planning, Development and
Infrastructure Act 2016 between 1 April 2017 and 19 March 2021. It governed the assessment of the
proposed development, in that the decisions the subject of the application for judicial review
proceedings were made under that Act. At the same time, the State Commission Assessment Panel
(‘SCAP’) operated under the Planning, Development and Infrastructure Act.
On 23 January 2020, SCAP, as delegate of the second respondent, resolved that the proposed
development by RPA was not seriously at variance with the DP as it stood at the relevant time within
the meaning of s 35(2) of the Development Act (‘variance decision’). It further resolved to grant
development plan consent (‘consent decision’).
RJK brought an application for judicial review, seeking orders in the nature of certiorari quashing
the variance decision and the consent decision. They further sought declarations to the effect that the
consent decision was unlawful and invalid, and that no reasonable relevant authority, acting
reasonably, could form an opinion under s 35(2) of the Development Act that the proposed
development was not seriously at variance with the DP.
On 17 February 2022, the primary judge dismissed the application for review and for declarations.
The issues raised on appeal concern:
• the proper construction of the DP in various respects;
• whether, on the proper construction of the DP as it applied to the proposed development, it
was open to SCAP to assess that the proposed development was not seriously at variance with
the DP and to grant development plan consent for the proposed development. The focus of
the complaint in this regard was the height of the proposed development. RJK further
contended that these decisions were not legally reasonable;
• whether SCAP merely applied the reasoning set out in a planning report commissioned by it
for the purpose of its deliberations, and did not have regard to the other material placed before
it and the considerations mandated by the DP;
• whether the judge erroneously characterised the task of SCAP with respect to the DP when
considering whether it had failed to take into account relevant considerations; and
• whether the judge failed to address and determine Ground 10 in the terms of the application.
Held, per Bleby JA (Doyle and David JJA agreeing), dismissing the appeal:
1. The planning authority has an obligation to assess the proposed development according to
law, taking into account all relevant considerations, however abstractly they may be
expressed. It is also required to make an assessment as to whether the proposed development
is seriously at variance with the DP. Within those boundaries, it is given broad scope to make
evaluative judgments. RJK have not established that, on a proper construction of the DP, it
could never be permissible to approve a 53.9 metre building in a 22 metre maximum height
area.
-- 2 of 68 --
2. RJK have not established that it was not reasonably open to SCAP to conclude that the
proposed development was not seriously at variance with the DP, having regard to the
construction of the DP and in particular to the breadth of language of the dispensatory
provisions in Principle of Development Control (PDC) 21.
3. RJK have not established that the consent decision lacked an evident and intelligible
justification when assessed against the whole of the DP.
4. Having regard to the statutory framework of the decision-making obligation of SCAP, there
is no basis to infer that SCAP simply adopted the Agenda Report without having regard to the
other material placed before it and the considerations mandated by the DP.
5. The Agenda Report did not demarcate the ‘locality’ for the purposes of PDC 21. However, it
does not follow that SCAP did not form a view about the extent of the locality or other
identified, relevant considerations. SCAP members have planning expertise. RJK did not
discharge its onus to establish that SCAP did not give consideration to these matters. The
judge did not otherwise mischaracterise the task of SCAP with respect to the DP.
6. The judge made clear his reasons for dismissing Ground 10 by referring back to his reasons
in respect of earlier grounds.
Development Act 1993 (SA) ss 32, 33, 35, 38; Planning, Development and Infrastructure (General)
Regulations 2017 (SA) reg 14; sch 3, cl 3; Planning, Development and Infrastructure Act 2016 (SA),
referred to.
Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; City of Mitcham v Freckmann
(1999) 74 SASR 56; Craig v South Australia (1995) 184 CLR 163; Coastal Ecology Protection
Group Inc v City of Charles Sturt (2017) 227 LGERA 1; District Council of Munno Para v Remove-
all Rubbish Co Pty Ltd (1985) 41 SASR 188; Dunlop v Woollahra City Council [1975] 2 NSWLR
446; Fimmell v District Court of Mount Gambier (No 2) (1988) 143 LSJS 429; Hayes v Development
Assessment Commission (No 4) (1997) 95 LGERA 7; Khabbaz & Anor v State Planning Commission
& Ors [2022] SASC 11; Lee v Lee (2019) 266 CLR 129; Mar Mina (SA) Pty Ltd v City of Marion
(2008) 163 LGERA 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister
for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; PJ Nash Pty Ltd v Food and
Beverage Australia Ltd [2021] SASCA 86; Project Blue Sky v Australian Broadcasting Authority
(1998) 194 CLR 355; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Rhylyn v District
Council of Willunga [1994] SASC 4919; R v Australian Broadcasting Tribunal; Ex parte Hardiman
(1980) 144 CLR 13; South Australian Housing Trust v Development Assessment Commission (1994)
63 SASR 35; Steicke v Pederick (2019) 134 SASR 114; St Ann’s College Inc v City of Adelaide
[1999] SASC 479; Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11; Town of Gawler
v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Town of Walkerville v Adelaide
Clinic Holdings Pty Ltd (1985) 38 SASR 161; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74
SASR 557; Viscariello v Livesey [2013] SASC 99; Warren v Coombes (1979) 142 CLR 531,
considered.
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KHABBAZ & ANOR v STATE PLANNING COMMISSION & ORS
[2023] SASCA 10
Court of Appeal – Civil: Doyle, Bleby and David JJA
1 DOYLE JA: I agree with the reasons of Bleby JA, and that the appeal should
be dismissed.
2 BLEBY JA: The third and fourth respondents (collectively, ‘RPA’) are
developers of a proposed apartment building at 2-6 Hutt Street, Adelaide, being at
the south-eastern corner of the intersection of Hutt Street and East Terrace.
3 The appellants (collectively, ‘RJK’) occupy and own a house at 83 East
Terrace, Adelaide, very close to the proposed development.
4 The first and second respondents took no active part in the proceedings.
5 The State Commission Assessment Panel (‘SCAP’) was, relevantly, the
delegate of the second respondent pursuant to s 30(3) of the Planning,
Development and Infrastructure Act 2016 (SA) and cl 3 of sch 3 to the Planning,
Development and Infrastructure (General) Regulations 2017 (SA). Acting in that
capacity, on 23 January 2020 it resolved as follows with respect to the proposed
development:
1. That the proposed development is NOT seriously at variance with the policies in the
Development Plan.
2. That the State Commission Assessment Panel is satisfied that the proposal generally
accords with the related Objectives and Principles of Development Control of the
Adelaide (City) Development Plan Consolidated 25 July 2019 with amendments
gazetted on 26 September 2019 (consolidated date 17 October 2019).
3. To grant Development Plan Consent to Development Application 020/A053/19 by
Rymill Park Apartments Pty Ltd and Rymill Park Apartments Unit Trust for
demolition of the existing office building and the construction of a 16-level mixed use
building at 2-6 Hutt, Adelaide, subject to the following conditions of consent.
6 RJK brought an application for judicial review. They sought an order in the
nature of certiorari quashing the finding that the proposed development by RPA
was not seriously at variance with the Adelaide (City) Development Plan (‘DP’)
as it stood at the relevant time (‘variance decision’). They also sought an order in
the nature of certiorari quashing the decision made by SCAP on the same occasion
to grant development plan consent (‘consent decision’).
7 RJK further sought declarations to the effect that the consent decision was
unlawful and invalid, and that no reasonable relevant authority, acting reasonably,
could form an opinion under s 35(2) of the Development Act 1993 (SA) that the
proposed development was not seriously at variance with the DP.
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[2023] SASCA 10 Bleby JA
2
8 The grounds of review were extensive. The claims that remain relevant to the
present appeal were, in summary, that:
in making each of the variance decision and the consent decision, SCAP
failed to take into account mandatory relevant considerations (Ground 7);
in making each of the variance decision and the consent decision, SCAP took
into account irrelevant considerations (Ground 7A);
for the reasons given in Grounds 7 and 7A, SCAP failed to assess the
proposal against the DP as required by s 33 of the Development Act (Ground
8);
for the reasons given in Grounds 7, 7A and 8, each of the variance decision
and the consent decision was invalid or unlawful because SCAP
misconstrued the DP and therefore erred in law in a way that affected its
exercise of power, and constructively failed to exercise its jurisdiction
(Ground 9). The numerous sub-grounds to this ground included the complaint
that, as a matter of construction, the DP did not contemplate the approval of
a 53.9 metre building when the maximum building height contemplated in
the relevant area was 22 metres; and
for numerous reasons, including those articulated in Grounds 7, 7A, 8 and 9,
each of the variance decision and the consent decision was legally
unreasonable or irrational (Ground 10).
9 The application for judicial review also challenged the validity of various
amendments to the DP.
10 On 17 February 2022, the primary judge dismissed the application for review
and for declarations.
11 RJK have appealed against those orders dismissing the applications with
respect to the consent decision and the variance decision. The issues raised on
appeal are:
the proper construction of the DP in various respects (Ground 1). RJK
contended that the judge erred in interpreting the DP, the consequences of
which also feed into their complaint in Ground 2;
whether, on the proper construction of the DP as it applied to the proposed
development, it was open to SCAP to assess that the proposed development
was not seriously at variance with the DP and to grant development plan
consent for the proposed development (Ground 2). The focus of the
complaint in this regard was the height of the proposed development, which
exceeds 53 metres. RJK further contended that these decisions were not
legally reasonable;
-- 6 of 68 --
[2023] SASCA 10 Bleby JA
3
whether SCAP merely applied the reasoning set out in a planning report
commissioned by it for the purpose of its deliberations, and did not have
regard to the other material placed before it and the considerations mandated
by the DP (Ground 3);
whether the judge erroneously characterised the task of SCAP with respect
to the DP when considering whether it had failed to take into account relevant
considerations (Ground 4); and
whether the judge failed to address and determine Ground 10 in the terms of
the application (Ground 5).
12 This appeal is by way of rehearing. The Court is to conduct a real review of
the evidence and of the primary judge’s reasons for judgment to determine whether
he erred in fact or law.1 As RJK submitted, there being no oral evidence, this Court
is in as good a position as the primary judge to decide on the proper inferences to
be drawn from the facts.2 As a matter of practicality, the determination of this
appeal will depend on the correctness of the substantive arguments made before
the primary judge and necessarily reiterated on appeal. Principal among these are
RJK’s arguments as to the proper construction of the DP.
Background
The proposed development
13 The proposed development is to be constructed boundary-to-boundary at
almost all levels (and out over the footpath at some levels) upon an allotment of
approximately 569 square metres. It will comprise 16 levels, with a two-level
basement car park and 14 floors above ground. The height of the building will be
53.9 metres.
14 The proposed development site is located within the Capital City Zone
(‘CCZ’) (no policy area) established by the DP. The Park Lands Zone (Rundle and
Rymill Parks Policy Area 20) is immediately to the north.
15 The site is located at the north-east corner of an area of the CCZ that has a
maximum building height of 22 metres. This section of the CCZ extends west
across Hutt Street for a short distance, and south to a point just north of Carrington
Street. The City Living Zone (‘CLZ’) (East Terrace Policy Area 29) is immediately
to the east of the site, across a private roadway, Cleo Lane, which is three metres
wide.
16 The nearest neighbours of the site are buildings of two to four storeys in
height (to the east across Cleo Lane, immediately south and to the west across Hutt
Street) and, to the north, the low-lying environment of the Adelaide Park Lands.
1 Lee v Lee (2019) 266 CLR 129 at [55].
2 Lee v Lee (2019) 266 CLR 129 at [55]; Warren v Coombes (1979) 142 CLR 531 at 551.
-- 7 of 68 --
[2023] SASCA 10 Bleby JA
4
Other buildings in the close vicinity on the western side of Hutt Street are up to
five storeys in height.
17 The proposed development will include 38 apartments ranging from 70
square metres to 445 square metres in size. It will include:
a restaurant at ground level, facing Hutt Street and East Terrace;
a communal dining, meeting, lounge, library and conference area on the
mezzanine between the ground floor and level one;
a further two levels of parking between the mezzanine and level three;
a storage enclosure designed to accommodate up to 46 bicycles on level two;
and
a small communal ‘roof top garden’ on level three.
18 The land owned and occupied by RJK is on the eastern side of Cleo Lane.
RJK and the occupiers of neighbouring properties located on East Terrace use Cleo
Lane for vehicular access to the rear of their land. As identified above, the
proposed building will immediately adjoin the western side of Cleo Lane. One of
the two exits from the car park of the proposed building will open onto Cleo Lane.
Waste collection will use Cleo Lane. RJK contended at trial that this would cause
issues with traffic in Cleo Lane, particularly at peak periods.
The Development Act
19 The Development Act was repealed, in stages, by the Planning, Development
and Infrastructure Act between 1 April 2017 and 19 March 2021. It governed the
assessment of the proposed development, in that the decisions the subject of the
application for judicial review proceedings were made under that Act. At the same
time, SCAP operated under the Planning, Development and Infrastructure Act.
20 Section 32 of the Development Act prohibited development unless the
development was an ‘approved development’. Sections 33 and 35 then established
the assessment process, as follows:
33—Matters against which development must be assessed
(1) A development is an approved development if, and only if, a relevant authority has
assessed the development against, and granted a consent in respect of, each of the
following matters (insofar as they are relevant to the particular development):
(a) the provisions of the appropriate Development Plan (development plan
consent);
(b) the provisions of the Building Rules (building rules consent);
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[2023] SASCA 10 Bleby JA
5
(c) in relation to a proposed division of land (otherwise than under the Community
Titles Act 1996 or the Strata Titles Act 1988)—the requirement that the
following conditions be satisfied (or will be satisfied by the imposition of
conditions under this Act):
(i) the allotments resulting from the division may be lawfully used for the
purposes proposed by the applicant;
(ii) open space will be provided, or a payment will be made in accordance
with the requirements imposed under this Act;
(iii) adequate provision is made for the creation of appropriate easements
and reserves for the purposes of drainage, electricity supply, water
supply and sewerage services;
(iv) the requirements of a water industry entity under the Water Industry Act
2012 identified under the regulations relating to the provision of water
supply and sewerage services are satisfied;
(iva) where land is to be vested in a council or other authority—the council
or authority consents to the vesting;
(v) requirements set out in regulations made for the purposes of this
provision are satisfied;
(d) in relation to a division of land under the Community Titles Act 1996 or the
Strata Titles Act 1988—the requirement that the following conditions be
satisfied (or will be satisfied by the imposition of conditions under this Act):
(i) each lot or unit that would be created or affected by the development is
appropriate for separate occupation;
(ii) any encroachment of a lot or unit over other land has been dealt with in
a satisfactory manner;
(iii) where land is to be vested in a council or other authority—the council
or authority consents to the vesting;
(iv) a building or item intended to establish a boundary (or part of a
boundary) of a lot or lots or a unit or units is appropriate for that
purpose;
(v) the division of the land in the proposed manner is, having regard to the
relevant Development Plan, appropriate;
(va) the division of land under the Community Titles Act 1996 or the Strata
Titles Act 1988 is appropriate having regard to the nature and extent of
the common property that would be established by the relevant scheme;
(vi) open space will be provided, or a payment will be made in accordance
with the requirements imposed under this Act;
(vii) the requirements of a water industry entity under the Water Industry Act
2012 identified under the regulations relating to the provision of water
supply and sewerage services are satisfied;
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[2023] SASCA 10 Bleby JA
6
(viia) any building situated on the land complies with the Building Rules;
(viii) requirements set out in the regulations made for the purposes of this
provision are satisfied;
(e) the requirement that any encroachment of a building over, under, across or on
a public place (and not otherwise dealt with above) has been dealt with in a
satisfactory manner;
(f) such other matters as may be prescribed.
(2) An application may be made for all or any of the consents required for the approval
of a proposed development, or for any one or more of those consents.
(3) A relevant authority may, in granting a development plan consent, reserve its
decision on a specified matter until further assessment of the relevant development
under this Act.
(4) A development will be taken to be an approved development when all relevant
consents have been granted and a relevant authority has, in accordance with this Act,
indicated that the development is approved.
(4a) The regulations may exclude prescribed classes of development from the operation
of paragraph (a) of subsection (1) (so that an assessment against the Development
Plan and a development plan consent that would otherwise be required under that
paragraph need not be undertaken, sought or obtained).
(4b) If—
(a) a development only requires an assessment under paragraph (b) of subsection
(1); and
(b) a council—
(i) is the relevant authority; and
(ii) is to make the assessment under that paragraph; and
(c) the council determines to grant consent under that paragraph, the council, as
the relevant authority, must issue the relevant development approval with the
consent.
(5) The provisions of the Building Rules that are relevant to the operation of
subparagraph (viia) of paragraph (d) of subsection (1) are the provisions of the
Building Rules as in force at the time the application is made for consent in respect
of the matters referred to in that paragraph.
…
35—Special provisions relating to assessment against Development Plan
(1) If a proposed development is of a kind described as a complying development under
the regulations or the relevant Development Plan, the development must be granted
a development plan consent (subject to such conditions or exceptions as may be
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[2023] SASCA 10 Bleby JA
7
prescribed by the regulations or the relevant Development Plan and subject to any
other provision made by this Act or applying under the regulations).
(1a) However, a proposed development of a class prescribed for the purposes of section
37, or required to be referred to the Commissioner of Police under section 37A, will
be taken not to be complying development (and will not be subject to the operation
of subsection (1)).
(1b) A development that is assessed by a relevant authority as being a minor variation
from complying development may be determined by the relevant authority to be
complying development (and that determination will then have effect for the
purposes of this Act).
(1c) If a proposed development meets all but 1 criteria necessary for the development to
be complying development, the aspect or aspects of the development that are
consistent with the development being complying development must be regarded
accordingly and the balance of the development will be assessed as merit
development.
(1d) To avoid doubt, subsection (1c) does not prevent a relevant authority deciding not to
grant development plan consent on account of its assessment of the balance of the
development under that subsection.
(1e) Subsection (1c) does not apply if, despite various aspects of the development
meeting any criteria for the development to be complying development, the
development, from an overall perspective, falls within the category of
non-complying development.
(2) Subject to subsection (1), a development that is assessed by a relevant authority as
being seriously at variance with the relevant Development Plan must not be granted
consent.
(4) If a development is of a kind described as a non-complying development under the
relevant Development Plan, no appeal lies against—
(a) a refusal of consent under this Act at any stage in the process (including in the
circumstances envisaged by section 39(4) and including without hearing (or
further hearing) from the applicant); or
(b) a condition attached to a consent or approval that is expressed to apply by
virtue of that non-compliance under the Development Plan,
except in relation to a proposed development that has, or will, become necessary by
reason of—
(c) a change, or a proposed change, in the law regulating an existing use of land;
or
(d) an order under Division 5 or 6 of Part 6.
(4a) To avoid doubt, nothing in a preceding subsection prevents a relevant authority
refusing at any time to grant a development authorisation with respect to a
non-complying development.
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[2023] SASCA 10 Bleby JA
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(5) A proposed development that does not fall into a category of development mentioned
in a preceding subsection will be merit development (and any such development
must be assessed on its merit taking into account the provisions of the relevant
Development Plan).
(6) Subject to this Act, a relevant authority must accept that a proposed development
complies with the provisions of the appropriate development plan to the extent that
such compliance is certified by a private certifier.
Note—
1 See section 89 with respect to certificates given by private certifiers.
The Adelaide (City) Development Plan
21 A number of provisions of the DP have been included in an Appendix to this
judgment. The DP provides that Zone provisions take precedence over Council
Wide provisions, whilst Policy Area provisions take precedence over Zone
provisions. Each Zone provides that ‘[i]n the assessment of development, the
greatest weight is to be applied to satisfying the Desired Character for the Zone’.
Each Policy Area provides that ‘[i]n the assessment of development, the greatest
weight is to be applied to satisfying the Desired Character for the Policy Area’.
22 The DP imposes various maximum building heights. Concept Plan Figures
CC/1 and CC/2 provide for various maximum building height areas (including an
area with no maximum) in the CCZ, arranged in approximately a pyramid shape,
cut in half at North Terrace. This is the ‘anticipated city form’. As identified above,
the site of the proposed development is in a maximum building height area of 22
metres. The maximum building height area directly to the west, a little past Hutt
Street, is 53 metres. There is then an area in the centre of the CCZ with no
maximum building height limit.
23 It is helpful here to set out certain Principles of Development Control of the
CCZ. The construction of PDC 21 is at the heart of the issues raised on appeal. It
provides:
21 Development should not exceed the maximum building height shown in Concept
Plan Figures CC/1 and 2 unless, notwithstanding its height, it has regard to the
context that forms the positive character of the locality and is sympathetic to the
desired character of the Zone or Policy Area and the anticipated city form expressed
in Concept Plan Figures CC/1 and 2, and
(a) if the development incorporates the retention, conservation and reuse of a
building which is a listed heritage place or an existing built form and fabric
that contributes positively to the character of the local area; or
(b) more than 15% of dwellings are affordable housing; or
(c) only if:
(i) at least three of the following are provided:
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[2023] SASCA 10 Bleby JA
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(1) the development provides an orderly transition up to an existing
taller building or prescribed maximum building height in an
adjacent Zone, Policy Area or building height area on Concept
Plan Figures CC/1 and 2;
(2) high quality open space that is universally accessible and is
directly connected to, and well integrated with, public realm
areas of the street;
(3) high quality, safe and secure, universally accessible pedestrian
linkages that connect through the development site;
(4) no on site car parking is provided;
(5) active uses are located on at least 75% of the public street
frontages of the building, with any above ground car parking
located behind;
(6) a range of dwelling types that includes at least 10% of 3+
bedroom apartments;
(7) the building is adjacent to the Park Lands;
(8) the impact on adjacent properties is no greater than a building of
the maximum height on Concept Plan Figures CC/1 and 2 in
relation to sunlight access and overlooking; and
(ii) at least three of the following sustainable design measures are provided:
(1) a communal useable garden integrated with the design of the
building that covers the majority of a rooftop area supported by
services that ensure ongoing maintenance;
(2) living landscaped vertical surfaces of at least 50 square metres
supported by services that ensure ongoing maintenance;
(3) passive heating and cooling design elements including solar
shading integrated into the building;
(4) higher amenity through provision of private open space in excess
of minimum requirements by 25% for at least 50% of dwellings;
(5) solar photovoltaic cells on the majority of the available roof area,
supported by services that ensure ongoing maintenance.
24 The following principles of development control for the CCZ are also
particularly relevant:
16 Development that exceeds the maximum building height shown in Concept Plan
Figures CC/1 and 2,and meets the relevant quantitative provisions should
demonstrate a significantly higher standard of design outcome in relation to
qualitative policy provisions including site configuration that acknowledges and
responds to the desired future character of an area but that also responds to adjacent
conditions (including any special qualities of a locality), pedestrian and cyclist
amenity, activation, sustainability, and public realm and streetscape contribution.
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[2023] SASCA 10 Bleby JA
10
…
22 Development should have optimal height and floor space yields to take advantage of
the premium City location and should have a building height no less than half the
maximum shown on Concept Plan Figures CC/1 and 2, or 28 metres in the Central
Business Policy Area, except where one or more of the following applies:
(a) a lower building height is necessary to achieve compliance with the
Commonwealth Airports (Protection of Airspace) Regulations;
(b) the site is adjacent to the City Living Zone or the Adelaide Historic
(Conservation) Zone and a lesser building height is required to manage the
interface with low-rise residential development;
(c) the site is adjacent to a heritage place, or includes a heritage place;
(d) the development includes the construction of a building in the same, or
substantially the same, position as a building which was demolished, as a
result of significant damage caused by an event, within the previous 3 years
where the new building has the same, or substantially the same, layout and
external appearance as the previous building.
23 Development should manage the interface with the City Living Zone or the Adelaide
Historic (Conservation) Zone in relation to building height, overshadowing,
massing, building proportions and traffic impacts and should avoid land uses, or
intensity of land uses, that adversely affect residential amenity.
…
25 Parts of a development that exceed the prescribed maximum building height shown
on Concept Plan Figures CC/1 and 2 that are directly adjacent to the City Living,
Main Street (Adelaide) or the Adelaide Historic (Conservation) Zone boundaries
should be designed to minimise visual impacts on sensitive uses in the adjoining
zones and to maintain the established or desired future character of the area. This
may be achieved through a number of techniques such as additional setback,
avoiding tall sheer walls, centrally locating taller elements, providing variation of
light and shadow through articulation to provide a sense of depth and create visual
interest, and the like.
The material before SCAP
The Agenda Report
25 A report was prepared by a consultant planner to assist SCAP (‘Agenda
Report’). This report set out the features of the proposed development, summarised
above. The executive summary provided as follows:
Located within the Capital City Zone, the predominantly residential building responds to
the high-scale desired character envisaged in the Zone with high street walls that frame the
streets, together with an interesting pedestrian environment and human scale at
ground floor levels. Non-residential uses are included at the ground floor level and
mezzanine levels around the prominent corner of Hutt Street and East Terrace consistent
with the intent of the Zone.
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The proposed combination of land uses are explicitly envisaged within the Zone and the
building achieves a high standard of external appearance which is also specifically
contemplated in the Zone. The siting of the building along with the inclusion of a podium
are consistent with the intent of the Zone.
The site of the proposed development is immediately adjacent to the City Living Zone to
the east of the subject land and the Park Lands Zone to the north.
A 22 metre height limit is identified for the subject land. Development should not exceed
this height unless, notwithstanding its height, it has regard to the context that forms the
positive character of the locality and is sympathetic to the desired character of the Zone
and where specified criteria are satisfied.
Accordingly, a consideration of the proposed building height of 53.9 metres and its
interface with the surrounding context is a key planning consideration for this proposal.
The proposed development is considered to satisfy the criteria for exceeding the specified
maximum height under the Capital City Zone.
Category 2 representations express concern about the proposed building height, as well as
about potential traffic congestion and overlooking from the proposed development into
existing building to the east. While these concerns are recognised, the design measures and
supporting materials provided with the application demonstrate that appropriate measures
have been or will be taken to address and minimise these impacts to meet the Development
Plan guidelines.
The proposed development also successfully addresses other key planning and technical
issues. It is therefore considered appropriate for Development Plan Consent to be granted
subject to planning conditions recommended in this report.
26 The Agenda Report noted that a pre-lodgement agreement had been entered
between RPA and the South Australian Government Architect. The latter provided
comments expressing her support for the proposed development, including the
following with respect to the height of the development:
I consider the site to be prominent with landmark characteristics afforded by its Park Lands
setting and elevated position. As such, in principle I support an approach for a building
that exceeds the 22 metre height limit envisaged by the Development Plan. Given
development of this scale will become a significant backdrop to the Park Lands and will be
viewed from all angles, my support for the height from a design perspective is contingent
on a continued commitment and delivery of the high quality design outcome presented,
particularly in relation to the refined architectural expression, choice materiality,
apartment amenity, sustainability initiatives and servicing strategy as well as public realm
contribution.
27 In relation to Cleo Lane, the Government Architect said:
Cleo Lane accommodates vehicle access to above ground car parking, waste collection, a
bin store and the site’s transformer. Given the shared nature of Cleo Lane, I welcome the
project team’s intent to engage with adjacent land owners to achieve a mutually agreeable
outcome for the shared space. In my view, the consideration given to the amenity of the
laneway and transition between the private laneway and public road will reinforce the
development’s sense of place and contextual relationship.
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28 The Government Architect suggested that SCAP consider imposing
conditions or reserving matters in relation to collaboration with the Adelaide City
Council in respect of paving treatments, final samples of selected materials,
refinement of the penthouse roof form to assist in mitigating the height of the
development and further consideration of the layout of the solar panels with a view
to reducing their visual impact on the roofline.
29 The Agenda Report noted that vehicles would access the upper-level car
parking from East Terrace by ‘the existing left-in, left-out movement into
Cleo Lane’ whilst the basement car parks would be accessed from Hutt Street. The
Agenda Report further indicated ‘the setback of the proposed building to Cleo
Lane is proposed to allow for an increase to the width of this private road to
accommodate all traffic movements and will allow two-way traffic movements
along the northern 20 metres of Cleo Lane’.
30 The Agenda Report also included information under the sub-heading
‘locality’, including a zoning map, which covered the areas referred to. The map
identified those areas that were in the CLZ and the CCZ. Within the locality, the
Agenda Report indicated that East Terrace and Hutt Street served as important
thoroughfares. The report considered features of the Park Lands in the area
adjacent to East Terrace and further north.
31 The Agenda Report also provided a description of the buildings to the east,
south and west of the subject land, as summarised above. It made reference to the
‘wider locality, taking in areas either side of Hutt Street’ by noting multiple
buildings ranging from nine storeys to 25 storeys at various locations in the eastern
end of Flinders and Pirie Streets and in Hutt Street and East Terrace.
32 The Agenda Report expressed the view that, when taken with the existing
development, the completion of some or all of the proposed development in the
wider locality will substantially change the nature of the built form in the area
between the core Adelaide CBD and the east Park Lands. It said:
In particular, the skyline looking towards the Adelaide CBD from the east park lands will
feature, in the foreground to the towers of the CBD, buildings of a similar or greater height
than the proposed development, extending northwards and southwards along Hutt Street
and its environs.
Similarly, looking southwards from Rymill Park, there will be a line of buildings between
the taller towers of the CBD and Hutt Street of a similar height to the proposed
development, with a continuing graduation downwards in height towards the east to the
lower 8 storey building at 248-253 Hutt Street.
33 The City of Adelaide neither supported nor opposed the proposed
development. Following the public notification process, the following
representations were raised, as summarised by the primary judge:3
3 [2022] SASC 11 at [195].
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the potential for construction of the proposed development to cause disruption to
staff and clients using nearby premises;
use of the term “Rymill” and infringement on trademarks;
the height of the proposed development exceeding the height prescribed for the
subject land under the Development Plan, and being out of scale and character with
its surrounds;
the height of the development results in the proposal being seriously at variance;
noise and odour impacts from the proposed ground-floor restaurant;
the scale and intensity of the development would reduce the level of residential
amenity enjoyed by that land and by “all dwellings within the adjoining City Living
Zone”, including through noise and other impacts of traffic, waste collection,
operation of the restaurant and plant and equipment.
overlooking from the proposed development into some parts of adjoining land,
including in particular into the rear courtyard, bedroom and living room windows;
solar shading and overlooking of bedrooms on the western side of the subject land;
generally, shadowing impacts from the proposed development including the loss of
sunlight to potential future solar cell arrays on nearby properties;
suitability of vehicle access to the proposed development from East Terrace via Cleo
Lane and the capacity of these existing roads to meet the additional demand,
particularly at peak periods and during special events, including the suggestion that
vehicle access to the proposed development should be from Hutt Street;
traffic impacts of waste disposal truck movements in Cleo Lane;
design and suitability of the internal parking and circulation paths;
additional demand for on-street car parking caused by the proposed development,
and the potential for the development to exacerbate traffic, congestion and parking
problems in the area;
potential structural impacts of the construction of the proposed development on
nearby buildings, and the need to ensure ongoing access from Cleo Lane to adjoining
residences throughout the construction period;
potential for additional wind impacts;
reduction in property values; and
potential to establish a precedent.
34 The Agenda Report summarised RPA’s responses to the representations as
follows:4
4 [2022] SASC 11 at [196].
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The contentions about precedent and impact on value are unsubstantiated and in any
event are irrelevant to a planning assessment.
Relevant construction impacts to be dealt with by Construction Environment
Management Plan.
Trade marks are not relevant to the assessment of the application.
The Signalised ramp system satisfies AS/NZS 2890.1:2004.
The design calculations (using conservative estimates) indicate that there is a 1.9%
chance that a vehicle would be required to wait for another vehicle at any given time.
No queuing on Cleo Lane will intrude into private land.
Sight lines are acceptable.
Ramp profile and turn paths are suitable.
There is adequate loading area for café deliveries.
Safe access and egress for service and waste vehicles is provided.
The applicant proposes to offer a right of way to the other land owners who enjoy
rights over the lane. If those other land owners decline to accept the grant of a right
of way, that is a matter for them. The physical layout of the widened lane will mean
that even regardless of the rights of way, access over the wider area will in a practical
sense be readily available.
Council Wide PDC 167 and Capital City Zone PDC 16 and 21 all expressly provide
a policy framework for buildings taller than the Concept Plan guideline. The
application documents detail how the proposal satisfies the terms of PDC 21 in
particular.
The application is consistent with its context.
The development conforms to the desired character and high standard of design.
A previous development plan consent issued for the site has been cancelled. Another
application has been lodged but is not presently being pursued. Neither are in any
way relevant to the assessment of this current application which must be judged on
its own merits.
Access to sunlight maintained.
Appropriate privacy treatments are proposed.
Appropriate waste management measures are proposed.
Given that the Development Plan expressly provides (eg Zone PDC 16 and 21) for
the height guideline to be amended to achieve a range of other design aspirations,
this proposal cannot in the circumstances be “seriously at variance” with that very
policy regime.
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35 Against those submissions, the Agenda Report first turned to the CCZ. It
noted that the Desired Character for the CCZ was ‘as the economic and cultural
focus of the State, with increased population complementing the opportunities and
experiences provided in the city and increasing its vibrancy’. It introduced the
topic of the relationship between the height of a building and the other imperatives
of the DP in the following way:
A 22 metre maximum building height is identified for the subject land. Development
should not exceed the maximum building height unless it has regard to the context that
supports the positive character of the locality, is sympathetic to the desired character of the
Zone and satisfies additional criteria. Section 8.4 of this report outlines further discussion
regarding the height of the proposed development.
36 On the specific topic of building height, the Agenda Report identified that
Council Wide Objective 46 sought to reinforce the grid pattern of the city’s streets
through measures that included high rise development framing the Park Lands. It
observed that the Desired Character of the CCZ included high-scale development
with high street walls that frame the streets.
37 The Agenda Report set out PDC 21 in full, and then noted the effect of PDC
16, set out above. It further observed that Council Wide PDC 191 ‘envisages new
development on major corner sites should define and reinforce the townscape
importance of such sites, noting that one design technique contemplates greater
building height at corners’.
38 The Agenda Report included a detailed assessment against the PDC 21
criteria. Its essential conclusions on this assessment were that:
the proposed development would complement its context, having regard to
adjacent built from and the character of the locality;
the proposed development would complement the anticipated city form in
Concept Plan Figure CC/2. It explained this conclusion with respect to the
maximum 22 metre building height as follows:
While the site is within a portion of the Capital City Zone with a maximum building height
of 22 metres, it is within 70 metres of portions of the Capital City Zone where a 53 metre
maximum prescribed height applies (which commences one allotment to the west opposite
Hutt Street). Within this locality, approved and ‘in-construction’ apartment and mixed-use
buildings are establishing a character akin with areas of taller built form elsewhere in the
Adelaide CBD core (where no building height limitation exists). Similarly, current and
approved development along Hutt Street and to East Terrace will extend that character
closer to the subject land.
The height of proposed development, although taller than the maximum building height of
22 metres for the subject site, is consistent and complementary to the heights contemplated
some 70 metres west, the backdrop against which the development will be viewed from the
approach into the city.
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the proposed development provided at least three of the features specified in
PDC 21(c)(i); and
the proposed development provided at least three of the features specified in
PDC 21(c)(ii).
39 The Agenda Report then concluded that the criteria specified in PDC 21 were
satisfied and that, accordingly, the DP provided support for a building exceeding
the 22-metre maximum building height. It then made the observation (which, in its
effect, is contentious on this appeal), that:
The Development Plan provides no further guidance as to what additional height may be
supported.
40 The Agenda Report had specific regard to the provisions of PDC 25 where a
development exceeds the prescribed maximum building height and addressed the
extent to which the proposed development responded to them, having particular
regard to the effective setback provided by Cleo Lane. It further noted the support
of the Government Architect of the proposed development exceeding the 22-metre
building height limit. On the topic of building height, it concluded:
It is considered that the Development Plan explicitly contemplates buildings that will
exceed the stated maximum building height under certain conditions. These conditions are
outlined in Zone PDC 21 and have been recently amended as part of the Ministerial DPA
on interim operation. Assessed against PDC 21, the proposed development satisfies the
relevant requirements to qualify to exceed maximum building height shown in Concept
Plan Figures CC/1 and 2. In addition to meeting this provision, the applicant also has a pre-
lodgement agreement from the Government Architect who has considered the issue of
height and scale independently from the criteria in PDC 21 and provided support for the
building as proposed.
41 The Agenda Report concluded as follows:
With the exception of building height, the proposed development generally complies (or
can comply by way of condition) with the relevant Development Plan provisions including
land use, setbacks from site boundaries, micro-climatic (wind) impacts, the incorporation
of sustainable design features, waste management and car and bicycle parking and internal
amenity of the apartments.
The height of the proposed building exceeds the 22 metre maximum building height
expressed in Concept Plan Figure CC/2, however the Zone specifically contemplates
buildings can exceed the maximum building height shown in Concept Plan Figures CC/1
and 2 where the building has regard to the context that forms the positive character of the
locality and is sympathetic to the desired character of the Zone or Policy Area and the
anticipated city form expressed in Concept Plan Figures CC/1 and 2, and satisfies a
minimum number of qualifications and sustainable design measures. The proposal meets
this requirement.
Notwithstanding that the proposal meets these requirements, the Development Plan offers
no further specific guidance on what building height could be achieved.
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The height of the building does not give rise to a referral requirement in respect of Adelaide
Airport operations.
It is considered the building height of the proposed new development is justified by its
design and its relationship to its locality. In Hutt Street, and the wider locality, a number
of buildings already completed or approved for construction are of a similar height, or taller
than, the proposed new building. As these new buildings are completed, a visual and built
form link with emerge between the Adelaide CBD core and areas around Hutt Street and
East Terrace. The proposed development, although exceeding the maximum prescribed
22 metre height for the subject site, will be consistent with and complementary of the
emerging and anticipated built form in this area.
The proposed development is considered to achieve a high design standard, as
demonstrated by the inclusion of the required number of design and sustainability measures
and as acknowledged by the Pre-Lodgement Agreement entered into by the applicant and
the Government Architect in respect of the proposed development.
On balance, the proposed development will make a positive contribution to the desired
character of the Capital City Zone. It will substantially increase the population of this
precinct and as a result its daytime and night-time vibrancy. It will increase the activation
of this key interface between the city and the park lands and form a defined edge to mark
that interface. It will provide significant opportunities for active and passive surveillance
of the public realm during day and night-time hours and will enhance public safety.
It is concluded that the proposed development warrants Development Plan Consent, subject
to the conditions set out in the following section.
42 It then made recommendations in the exact terms that were adopted by SCAP
as resolutions, as set out at the beginning of these reasons.
The Future Urban Report
43 The application for development plan consent was supported by a report
prepared by a consultant planner, Future Urban (‘Future Urban Report’). The
primary judge summarised the matters addressed in that report. It is sufficient to
adopt the primary judge’s summary of the Future Urban Report’s approach to the
height of the proposed development in the context of the relevant PDCs and the
interface with the CLZ, supportive of the proposed development as this report
was:5
After noting that the subject land was subject to a height guideline of 22 metres and setting
out in full the terms of PDC 21, the Future Urban report indicated that the DP envisaged
that the structure of the city will be reinforced by the CCZ being the focus of high-rise
development tin [sic] the City. The report asserted that, notwithstanding its height, the
proposal had regard to the context “that forms the positive character of the locality and is
sympathetic to the desired character” for 13 listed reasons. Several of those reasons relate
to the contemporary and high-quality of the design, innovative environmental initiatives
and the like.
Of more direct relevance to the present proceedings were the observations that the proposed
building was to be lower in height than existing buildings and those under construction to
5 [2022] SASC 11 at [216]-[220].
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its west, with there being potential for taller buildings to be developed to the west and
north-west as anticipated by the DP. It was also suggested that the increase in height above
22 metres will not have adverse effects on adjoining dwellings or the overall city form in
the locality as the design, appearance and siting of the building will be commensurate with
its setting and surrounding development.
It was further suggested in the Future Urban report that the height of the podium to be
included in the proposed building would complement adjacent buildings and particularly
respect the adjacent CLZ. It was additionally suggested that the overall height of the
building will complement the anticipated city form to the west and that its location on a
key corner site will enable the overall height and form of the building to reinforce the grid
layout and the distinctive urban character of the locality. Its height and scale was said to
reflect and respond to the role of the streets it fronts. The report suggested that the proposed
building would satisfy the criteria under PDC 21. The report also noted that the express
terms of PDC 21 were consistent with other Council Wide policies dealing with building
form and height. In that respect, reference was made to the desired character for the CCZ,
Council Wide objectives 46 and 48 and Council Wide PDC 169 and PDC 191.
The Future Urban report also addressed the interface with the CLZ. The author suggested
that PDC 23 and 25 were the key provisions. The report contended that the proposal sought
to manage its interface with the CLZ by a number of measures. It was suggested that the
scale and form of the buildings adjoining Cleo Lane was such that they would have limited
views to the proposed building from the open spaces to their rear. There would not be
unreasonable shadowing of properties within the CLZ and overlooking would be mitigated
by the orientation and design of the floor plans. It was also suggested that access and egress
for properties adjoining Cleo Lane would actually be improved. It was also suggested that
the management of the interface between the proposed building and the CLZ would ensure
that the proposal does not detract from the amenity currently enjoyed by residents of the
CLZ in the locality.
The author of the Future Urban report summarised the contentions concerning the CLZ
interface as follows:
Whilst others may argue that the height of the development may not respect the low
to medium scale context of the City Living Zone we consider in the particular
circumstances of this proposal, the location of the site at the northern edge of the
interface; the adjacency to the Park Lands; the fact that the site is only one of three
remaining development sites in the Capital City Zone with a northern orientation to
the Park Lands; the prominent corner site characteristics of the land; and, the
improvement to the conditions in Cleo Lane for other users, accords with the overall
intent and purpose of the Development Plan.
In our opinion, the proposed building height and scale would not be appropriate
further south adjacent to the core of the City Living Zone.
The MasterPlan Report
44 RJK procured a report dated 31 October 2019 from Mr Graham Burns of
MasterPlan SA Pty Ltd (‘MasterPlan Report’). This report was provided to SCAP
with the Agenda Report. SCAP were required to have regard to this report, as RJK
were Category 2 objectors.
45 The MasterPlan Report took issue with a number of aspects of the proposed
development. It considered the most important aspect to be the height of the
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building, noting that the height of 53.9 metres was approximately two-and-a-half
times the maximum building height for the area. It emphasised the importance of
this with particular reference to the ‘context that forms the positive character of
the locality’ as contemplated by PDC 21:
The provisions of the City Living Zone and the associated East Terrace Policy Area 29 are
highly relevant to a review of acceptable building height, because the Capital City Zone
and East Terrace Policy Area is adjacent to the site. It logically follows that development
in the adjacent City Living Zone contributes to the context of the site.
46 To this end, the report emphasised the Desired Character for the CCZ, which
requires:
New development [to] achieve high design quality by being:
(a) Contextual – so that it responds to its surroundings, recognises and carefully
considers the adjacent built form, and positively contributes to the character of the
immediate area.
47 The report opined that on account of its height, the proposed development
did not respond to the building’s context within the meaning of CCZ Objective 5,
nor did it achieve ‘a cohesive scale of development that responds to its context’,
within the meaning of CCZ Objective 7. Having reviewed the maximum building
heights for the surrounding areas, it concluded:
In context therefore, the proposal exceeds the maximum building height specified for all
surrounding properties, namely:
22 metres for properties to the south and west in the Capital City Zone;
14 metres or four storeys for properties to the east in the City Living Zone; and
minimal building height in the Park Lands Zone to the north where no development
in the form of multi-storey buildings is envisaged.
48 The report also expressed the view that the proposed development did not
satisfy at least three of the features specified in PDC 21(c)(i). The fundamental
conclusion of the report was:
We remain of the opinion that the proposal is seriously at variance with the Development
Plan, being significantly higher than the maximum building height prescribed for this part
of the Capital City Zone. The proposal also makes no attempt to address the transition
requirements of the Development Plan arising from the development site being adjacent to
a different zone.
Other material provided to SCAP
49 As noted above, SCAP received written representations from three persons
or couples who were entitled to make a Category 2 objection. They referred to a
breach of the height guidelines, congestion, noise and disruption in Cleo Lane,
shading and overlooking, and noise and smells.
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50 The Agenda Report included a copy of the pre-lodgement agreement between
an agent for RPA and the Government Architect referred to in the Agenda Report,
as well as the correspondence from the City of Adelaide addressing various
technical issues. SCAP was also provided with detailed submissions from RJK’s
and RPA’s solicitors.
The decision of the primary judge
51 The primary judge found that the variance decision and the consent decision
were each validly made by SCAP. He commenced with a consideration of the
principles that govern the assessment of a development proposal by a body such
as SCAP:6
The authorities make it abundantly clear that when determining an application for the grant
of provisional development plan consent a body such as SCAP is not constrained by the
development plan in the same manner, or to the same extent, as is generally the case with
an administrative decision-maker deciding an application for some form of approval under
a statutory provision. As the authorities to which I am about to refer indicate, a planning
authority exercises a broad discretion within the policy parameters set by the development
plan but in doing so must have proper regard to the relevant provisions of the plan.
52 It is not necessary to trace the primary judge’s treatment of the authorities.
The principles are well-understood. In City of Mitcham v Freckmann, Debelle J
said:7
Section 33 of the Development Act 1993 states the task for a planning authority when
determining whether to grant development consent to a change in the use of land. It is to
assess the proposed development against the provisions of the appropriate Development
Plan. That simple statement obscures the complexity of the task. It is first necessary for
the planning authority to examine the proposal and determine its nature: see reg 16 of the
Development Regulations 1993. Having done so, the planning authority must assess the
proposal against the appropriate provisions of the Development Plan. That will require the
authority to identify the provisions which are relevant to the particular proposal and to
determine whether they speak for or against the proposed development. The relevant
provisions will, of course, vary from proposal to proposal. The task does not consist
only in identifying relevant provisions of the Development Plan as a kind of checklist
against which the proposal must be assessed. That is one aspect of the task. But it is
important also to distil from the relevant provisions of the Plan the overall intent and
purpose and the desired character of the zone in which it is sought to place the
proposed development, a task which is often assisted by reference to the stated
objectives of the zone and the principles of development control. Given that it is
manifestly impossible to make provision in the Development Plan for every kind of
development, the ultimate criterion by which a proposal might have to be judged is
whether it is conducive to the desired character and amenity of the zone. The less
conducive it is, the less likely that it might merit planning approval. In addition, as was
noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may
be occasions when the planning authority must resolve inconsistencies within the
Development Plan. Those inconsistencies will often be resolved by considering the desired
character and amenity of the zone.
6 [2022] SASC 11 at [371].
7 (1999) 74 SASR 56 at [18] (Debelle J, Doyle CJ and Duggan J agreeing).
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(Emphasis added)
53 Debelle J went on to note that the ultimate judgment against a Development
Plan has sometimes been described as an ‘unfettered discretion’.8 He observed,
referring to Town of Walkerville v Adelaide Clinic Holdings Pty Ltd,9 that the
discretion is unfettered only in the sense that there is nothing in a Plan which is
mandatory. Rather:10
It is preferable to describe the exercise of this unfettered discretion as the exercise of a
planning judgment within the ambit, scope and purpose of the Development Act, the
Development Regulations and the Development Plan.
54 RJK emphasised, in addition, the statement by Jacobs J in Fimmell v District
Court of Mount Gambier (No 2), that:11
… one would normally expect a planning authority, having proper regard to the Plan, to
respect what it says unless, as a matter of planning judgment, there is some good reason to
justify a different conclusion.
55 That statement was made in the context of rejecting a proposition that a
principle in a Development Plan, expressed in mandatory terms, was indeed
mandatory. Section 47(9) of the then Planning Act required the decision-maker ‘to
have regard to the provisions of the Development Plan’. Similarly, s 33(1) of the
Development Act provided that a development was an approved development only
if, among other things, a relevant authority had assessed the development against
the provisions of the appropriate Development Plan.
56 In any event, this statement goes no further than to identify the obvious, that
it is a jurisdictional requirement that the decision-maker must assess the proposal
against the relevant provisions of the applicable Development Plan.
57 Further, whether a decision-maker has interpreted a principle in a
Development Plan correctly is a question of law.12 For a body such as SCAP to
interpret a principle wrongly would be an error of law going to its jurisdiction to
grant consent, as it would have failed to assess the proposal against the
Development Plan properly construed. Having said that, care should be taken
before concluding that a particular construction of a provision in a Development
Plan was not open:13
The provisions of the Development Plan are not to be construed like a statute. A
Development Plan is a planning document couched in the language of planning objectives
and principles, rather than that of legal obligation. It uses language appropriate to the
8 City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
9 (1985) 38 SASR 161 at 173 (Jacobs J).
10 City of Mitcham v Freckmann (1999) 74 SASR 56 at [21].
11 (1988) 143 LSJS 429 at 434.
12 St Ann’s College Inc v City of Adelaide [1999] SASC 479 at [9] (Debelle J, Duggan and Williams JJ
agreeing).
13 St Ann’s College Inc v City of Adelaide [1999] SASC 479 at [16] (Debelle J, Duggan and Williams JJ
agreeing).
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expressions of goals and guiding principles, rather than the expression of legal mandates:
Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ
at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens
(1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984)
35 SASR 448 at 449. The plan must be considered as a whole for the purposes of
determining its purpose and intent.
58 Finally, on a judicial review it is open to challenge a decision granting
consent to a development application on the basis that the decision was dependent
on reaching a state of satisfaction, and that state of satisfaction was irrational,
illogical and not based on findings or inferences of fact supported by logical
grounds.14 This ground underpins the challenge to the variance decision.
59 For the purposes of this appeal, it is convenient to consider the various
findings and conclusions by the judge in the context of the issues raised on appeal.
Construction of the Development Plan
Complaints of error by the judge in construing the DP
60 Ground 1 of the appeal complains that the primary judge erred in construing
the DP in various respects. It is necessary to approach each of these asserted errors
by reference to the context in which the issue in question arose, and in particular,
the ground of review with respect to which the asserted error of construction
occurred.
61 The primary purpose of this section is to set out and explain the complaints
about the judge’s construction of the DP. Some of those substantive complaints
can be answered in the immediate context of the issue raised. Others are best
answered in the context of a more holistic analysis of the DP, which is the subject
of the following section. In stepping through the complaints of error by the judge,
I will indicate when I propose to take the latter course.
The application of Council Wide PDC 173
62 One matter raised by RJK was based on the provisions of Council Wide PDC
173. This provides:
173 Development in a non-residential Zone that abuts land in a City Living Zone, the
Adelaide Historic (Conservation) Zone or the North Adelaide Historic
(Conservation) Zone, should provide a transition between high intensity
development and the lower intensity development in the adjacent Zone by focussing
taller elements away from the common Zone boundary.
63 RJK submitted that to erect a building over 53 metres high, right on the
boundary of Policy Area 29 in the CLZ where the maximum permitted building
height is only 14 metres, does not provide the transition contemplated by Council
Wide PDC 173.
14 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
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64 The judge accepted a submission by RPA that Council Wide PDC 173 does
not apply, on the basis that the CCZ is not a ‘non-residential Zone’ within the
meaning of that principle:15
… I note that Objective 2 for the CCZ refers to: “A vibrant mix of commercial, retail,
professional services, hospitality, entertainment, educational facilities and medium and
high density living.” Objective 3 refers to: “Design and management of City living to
ensure the compatibility of residential amenity with the essential commercial and leisure
functions of the Zone.”16 The Desired Character statement for the CCZ states that: “it is
anticipated that an increased population within the Zone will complement the range of
opportunities and experiences provided in the City and increase its vibrancy.”17
In light of the express provisions of the DP that I have highlighted in the preceding
paragraph, I find that the CCZ is not a non-residential Zone. I therefore accept the
correctness of the submission by RPA that Council Wide PDC 173 did not apply to this
development because the CCZ is not a non-residential Zone.
(Footnotes in original)
65 RJK challenged the conclusion that the CCZ was not a non-residential Zone.
They submitted that the purpose of Council Wide PDC 173 was manifestly to
manage the transition from high density development sought by the CCZ, to lower
intensity development contemplated by the CLZ. In that context, the term
‘non-residential Zone’ is simply used in contradistinction to ‘residential Zone’.
They submitted that this was how a planner would read it and, as a matter of law,
how it must be read.
66 By contrast, RPA submitted that the DP established no considered dichotomy
between ‘residential Zones’ and ‘non-residential Zones’. It observed that the only
reference to ‘residential Zones’ in the DP occurred in the description of the Desired
Character of the Main Street (Hutt) Zone. This extends directly south of that part
of the CCZ that forms the 22-metre maximum building height area in which the
proposed development is situated. That description reads, relevantly:
Developments on catalyst sites will exemplify quality and contemporary design that is
generally greater in intensity than their surroundings. However, development will be
designed to carefully manage the interface with sensitive uses in residential zones,
particularly with regard to massing; proportions; overshadowing; traffic and noise related
impacts.
67 This passage carries an implication that the Main Street (Hutt) Zone is not a
‘residential Zone’. This Zone is bordered, in various localities, by the CCZ, the
Adelaide Historic (Conservation) Zone, the Institutional (St Andrews) Zone and
various policy areas of the CLZ. The vast majority of the boundary of the Main
Street (Hutt) Zone abuts either the Adelaide Historic (Conservation) Zone or the
CLZ. It is a reasonable inference to draw that the reference to ‘residential Zones’
15 [2022] SASC 11 at [432]-[433]; see also at [478].
16 Emphasis added to both quotes.
17 Emphasis added.
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is a reference to those parts of the CLZ and the Adelaide Historic (Conservation)
Zone that border this Zone.
68 While the term ‘residential Zone’ only appears once in the DP, the same is
not true of the term ‘non-residential Zone’. This term appears in several contexts
in contradistinction to the CLZ, Adelaide Historic (Conservation) Zone and North
Adelaide Historic (Conservation) Zone. Council Wide PDC 9(f) provides that in
those zones:
Small scale, small size, ancillary business and activities which provide a local service to
residents may be appropriate provided compatible with the desired character of the locality,
does not result in the net loss of residential floor space and do not threaten the envisaged
development of non-residential zones.
69 Council Wide PDC 139 makes provision for retention depths on the
development of Local Heritage Places (Townscape), distinguishing between non-
residential Zones and Policy areas on the one hand, and the CLZ and Adelaide
Historic (Conservation) Zone on the other. There are then provisions such as
Council Wide PDC 173 itself, which regulates development in a non-residential
Zone that abuts, or is adjacent to, land in the CLZ, Adelaide Historic
(Conservation) Zone or North Adelaide Historic (Conservation) Zone.18
70 PDC 3 for the CLZ then provides:
3 Non-residential land uses should be limited to land lawfully used for non-residential
purposes and should comprise land uses more in conformity with the intended
residential amenity, except where envisaged in the relevant Policy Area. Non-
residential land uses should be of a scale and role to not prejudice the envisaged
development of non-residential zones.
71 The contextual use of the term ‘non-residential Zone’ in the DP tends to
favour the conclusion that it is a description used in contradistinction to those
Zones that the DP treats as residential Zones, even if these are not defined terms.
These apparent residential Zones are the CLZ, the Adelaide Historic
(Conservation) Zone and North Adelaide Historic (Conservation) Zone.
72 This in turn suggests that by employing this contradistinction, zones that are
not ‘residential Zones’ are what the DP is referring to when it uses the term
‘non-residential Zones’. That use would capture, for example, the CCZ, the Main
Street (Hutt) Zone, the Institutional (St Andrews) Zone and the City Frame Zone.
73 RPA submitted that the strong encouragement in the DP of residential
development and the use of land for residential purposes in the CCZ militates
against any conclusion that the CCZ should be included in the description of
‘non-residential Zone’. It submitted that it is fallacious to approach the question
18 See also Council Wide PDC 174.
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by reference to whether the CCZ is a ‘residential Zone’, as that would be to assume
that any given zone within the plan is ‘residential’ or ‘non-residential’.
74 As RPA observed, zones generally provide a mix of uses. Within the mix,
some uses are promoted more heavily than others. RPA directed attention to
Objective 2 of the CCZ within the DP, which is:
Objective 2: A vibrant mix of commercial, retail, professional services, hospitality,
entertainment, educational facilities, and medium and high density
living.
75 RPA submitted that where a vibrant mix of uses including ‘medium and high
density living’ forms the second objective of the zone, it would be quite erroneous
to characterise it as a ‘non-residential Zone’.
76 There is force in this as an abstract proposition. The question, however, is
what the term ‘non-residential Zone’ means in the context of the DP, not as an
abstraction. Objective 2 should be read in context with the other objectives.
Relevantly, Objectives 1 and 3 are:
Objective 1: The principal focus for the economic, social and political life of
metropolitan Adelaide and the State.
...
Objective 3: Design and management of City living to ensure the compatibility of
residential amenity with the essential commercial and leisure functions
of the State.
77 These objectives suggest strongly that while medium and high-density living
is an objective of the CCZ, it is hardly the primary focus and, indeed, is required
to be compatible with other economic, commercial, social and public objectives.
78 The only other Objective of the CCZ of incidental relevance is Objective 8:
Objective 8: Development that contributes to the Desired Character of the Zone.
79 The statement of the Desired Character certainly contemplates residential
living, at least as a feature that contributes to non-residential foci:
This Zone is the economic and cultural focus of the State and includes a range of
employment, community, educational, tourism and entertainment facilities. It is anticipated
that an increased population within the Zone will complement the range of opportunities
and experiences provided in the City and increase its vibrancy.
…
Non-residential land uses at ground floor level that generate high levels of pedestrian
activity such as shops, cafés and restaurants will occur throughout the Zone. Within the
Central Business Policy Area, residential land uses at ground level are discouraged. At
ground level, development will continue to provide visual interest after hours by being well
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lit and having no external shutters. Non-residential and / or residential land uses will face
the street at the first floor level to contribute to street vibrancy.
80 These paragraphs contemplate both residential and non-residential uses.
Adhering to the use of metaphor that features so heavily in the language of the DP,
residential uses are not, however, the ‘focus’ of the CCZ. Residential use plays a
supporting role.
81 Residential use manifests, in that supportive capacity, in medium and
high-density living, preferably not at ground floor and in a manner that should be
compatible with other commercial, economic, public and leisure functions.
82 Bringing these strands together, the DP appears, contrary to the submissions
of RPA and the conclusion of the primary judge, to create a dichotomy between
residential and non-residential Zones. That dichotomy manifests in a number of
ways. One is to ensure that development for non-residential purposes in a
residential Zone does not prejudice development in non-residential Zones.19 There
is no apparent reason why the DP would not intend to extend that protection to
non-residential development in the CCZ, given the primary focus of the CCZ.
83 Another manifestation of the dichotomy is in ensuring that the intensity of
development in a non-residential Zone does not prejudice the transition to an
adjacent residential Zone, on the understanding that the residential Zone will have
a much lower intensity of development.20
84 In my view, to describe a Zone as ‘residential’ or ‘non-residential’ is to give
it a description by reference to the apparent dominant purpose or set of objectives
of the zone in question. I reject RPA’s contention that the CCZ defies such a
description. The DP establishes the dichotomy as a descriptive distinction for
particular purposes. It does so in the context that most zones feature both
residential and non-residential functions. The residential function of the CCZ is
subsidiary to, and supportive of, its broader objectives and functions.
85 Council Wide PDC 173, when read in the broader context set out above,
supports this understanding. The transition that it looks to promote is between high
intensity development and the lower intensity development in the adjacent
(residential) Zone. The CCZ is the paragon of high-intensity development. Insofar
as it supports residential development, it does so in the form of medium and high
density living. That form is an exigency of the dominant non-residential purposes
of the Zone. That exigency, as much as any other high-intensity development in
the CCZ, requires management of the transition to the lower intensity development
of the residential Zones. A contextual and purposive reading of Council Wide PDC
173 supports strongly that it very much has in contemplation the transition from
the CCZ to the CLZ and other residential Zones.
19 CLZ PDC 3.
20 Council Wide PDC 173.
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86 In my view, the CCZ meets the description ‘non-residential Zone’ in the DP.
PDC 173 applied to the proposed development.
87 While I therefore respectfully disagree with the primary judge in this regard,
the question then is what, if any, consequence flows from my conclusion. The
judge reached that conclusion in the context of a complaint in a sub-ground of
Ground 7, that SCAP failed to take into account Council Wide PDC 173. As to
that, RPA points out that PDC 173 was reproduced in the Agenda Report and was
the subject of analysis in the MasterPlan Report, with that report making a
representation that the proposed development did not satisfy the transition
contemplated by PDC 173.
88 The substantive complaint that SCAP did not take into account PDC 173
must be considered against that material. As RPA acknowledged in written
submissions, the scheme of s 38 of the Development Act carried an implication that
SCAP was required to take into account written representations by neighbours.
Subject to the matters RJK identified in support of the broader complaint in
Ground 3, considered below, there is no evidence that displaces the presumption
of regularity to the effect that SCAP took into account the MasterPlan Report and,
for that matter, PDC 173. Otherwise, PDC 173 remains relevant to the substantive
complaints that the variance decision and the consent decision were not reasonably
open.
The complaint that the judge found provisions to be in conflict
89 RJK’s next complaint about the primary judge’s construction of the DP
concerned the judge’s approach to whether it could be inferred that SCAP could
not have had regard to the relevant provisions of the DP when making its decision.
In respect of this complaint on the application for review, the judge identified the
following approach to construction:21
At face value, some provisions of the DP might be taken to suggest that the development
proposal should not have been approved because of its height and the issue of transition. I
refer to Council Wide Objectives 47(a) and 47(d) Council Wide PDC 270 and CCZ PDC’s
23 and 25. However, none of those provisions speak in absolute terms and require a
planning judgment. Moreover, Council Wide Objectives 46(a) and 47(d) Council Wide
PDC’s 167, 170 and 191 and CCZ PDC’s 16, 21 and 25 are capable of supporting the
proposed development to varying degrees. In that respect, as RPA submitted, CCZ PDC16
and Council Wide PDC 167 effectively contemplate a “trade off” between excess height
and high design quality. The views of the Government Architect on the issues of both
design quality and the landmark nature of the site may have carried substantial weight with
SCAP. Responsiveness to the desired future character of the area, and adjacent conditions
is required by CCZ PDC 16. Council Wide PDC 167 has a broadly similar effect.
90 RJK complained that this passage indicates that the judge took an
impermissible approach in construing the DP to exhibit, relevantly, two sets of
provisions that were in tension or conflict. The first set promoted transition,
envisaging development at (relevantly) less than 22 metres in height, while the
21 [2022] SASC 11 at [434].
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second set encouraged or permitted development in excess of that height.
Similarly, RJK complained that when addressing their contention that SCAP failed
to take into account or assess the proposed development against the provisions of
the Park Lands Zone, the judge took a similar, impermissible approach of
establishing a conflict, the resolution of which was a planning question:22
It was … a matter of planning judgment for SCAP whether the principle expressed in
Council Wide PDC 270 should prevail over contrary objectives and principles, particularly
Council Wide objective 46(a) and Council Wide PDC’s 167 and 191. It is also noteworthy
that CCZ PDC 21(c)(i)(7) includes a location opposite the Parklands as one of the criteria
that assists in meeting the requirements for approval of an over-height building. That
provision, and more particularly objective 46(a), indicates that the DP actually favours
high-rise development facing the Parklands.
91 It was by taking this approach to construction that the judge rejected RJK’s
contentions that SCAP had, in material respects, necessarily failed to have regard
to various provisions of the DP. Thus, having construed the DP generally as quoted
above,23 the judge concluded:24
In light of these various considerations, whether and to what extent the proposed building
should be permitted to exceed the height limit having regard to the issue of transition in
height was quintessentially a planning policy decision to be made by SCAP. The result is
that it cannot be inferred that in deciding to grant approval to the proposed development
that SCAP must necessarily have failed to have regard to Council Wide Objective 47(a)
and (d). There were multiple other planning considerations that may have caused SCAP to
grant approval notwithstanding the terms of those objections.
92 RJK complained that this approach was erroneous, in that rather than viewing
groups of provisions in conflict, the resolution of which was a planning decision,
SCAP was required to construe the DP as a whole, which included the necessity
of reconciling any conflicts, and then assess the proposed development against the
DP so construed. The proper construction of the DP was a legal, not a planning
question, let alone a policy one. Further, there was no conflict between provisions
in the DP. The DP was to be construed according to ordinary principle. Special
provisions prevail over those with a more general application.25
93 I do not read the passages quoted above as treating the DP as presenting stark
policy conflicts for SCAP to resolve. I would not endorse the judge’s language in
saying that whether the proposed development should be permitted to exceed the
height limit was a planning policy decision, as the DP is the expression of policy
to which effect is to be given. However, when reading these paragraphs together,
I do not think that the judge was doing anything more than noting that there were
provisions that set height limits, and provisions that contemplated the exceeding
22 [2022] SASC 11 at [438].
23 [2022] SASC 11 at [434].
24 [2022] SASC 11 at [435].
25 Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24 at [50].
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of those height limits in certain circumstances. That does not mean that the judge
was not reading the DP as a whole.
94 RJK’s complaints here also extend to more specific matters of construction
of the DP. They challenge the statement by the judge at [438], quoted above, that
it was ‘a matter of planning judgment for SCAP whether the principle expressed
in Council Wide PDC 270 should prevail over contrary objectives and principles,
particularly Council Wide objective 46(a) and Council Wide PDC’s 167 and 191’.
As they submitted, construction of the DP is a matter of law, not planning
judgment.
95 I am not inclined to read this passage as saying anything more than that it
was a matter for SCAP as to the weight to be given to these various provisions in
their application to the assessment of the proposed development. Whether it was
open for SCAP to do so in the case of a proposed development that exceeded the
maximum height limit by so much is a matter of construction of the DP, which I
consider below. However, I do not think that the judge committed the egregious
error here asserted, that of treating the actual construction of the DP as a matter of
planning choice.
96 RJK also took issue with the conclusion in the same paragraph that CCZ PDC
21(c)(i)(7) and Objective 46(a) indicate ‘that the DP actually favours high-rise
development facing the Parklands’. Their complaint is that CCZ PDC 21(c)(i)(7)
only applies if the three requirements of the chapeau to CCZ PDC 21 are already
met, and that, in any event, that provision does not contemplate over-height
development.
97 Again, this requires consideration of the various provisions in context. The
judge reached this conclusion in the context of a complaint that SCAP failed to
assess the proposed development against the provisions of the Park Lands Zone,
including its Desired Character, and failed to consider whether the development
provided for a transition and reasonable graduation from the Desired Character as
provided for by PDC 270. On the judge’s construction of the DP, he was not
persuaded that SCAP failed in these regards. The questions of construction raised
within the complaints of whether SCAP had regard to various matters necessarily
tend to devolve into whether, on the proper construction of the DP, it was open to
SCAP to approve the proposed development. I address these substantive questions
of construction below.
Whether the judge impermissibly relied on the possibility of over-height
development in the CLZ in construing CCZ PDC 21
98 The next complaint about the judge’s construction of the DP related to RJK’s
substantive complaint that SCAP failed to assess whether the proposed
development was sympathetic to the anticipated city form as depicted in Concept
Plan Figure CC/2 (this being an expressed condition in CCZ PDC 21 of a
development exceeding the maximum building height). Again, bearing in mind
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that the complaint was that SCAP failed to take this condition into account, the
judge said:26
It appears to me from Concept Plan Figure CC/2 that the DP does contemplate a pyramidal
form in a very general sense in that the area bounded by the western side of Hutt Street and
East Terrace has a height limit of 14 metres, the subject land together with other areas on
either side of Hutt Street extending to the south towards Carrington Street has a height limit
of 22 metres whilst in areas from a little to the west of Hutt St and extending a considerable
distance the permitted height is 53 metres and beyond that there is no prescribed height
limit. A reverse decline in heights appears in Concept Plan Figure CC/1 moving west from
beyond King William Street. However, I have already referred at [434] to the provisions
of the DP that contemplate exceptions to the height limitations otherwise prescribed.
Furthermore, the Principles of Development Control included in East Terrace Policy Area
29 make special provision for development on catalyst sites, being sites greater than 1500
m², which may include one or more allotments. PDC 10 for Policy Area 29 expressly
provides that development on catalyst sites should include medium to high scale residential
development. PDC 15 for Policy Area 29 provides that in the event of an apparent conflict
with other provisions of the DP, the catalyst site principles will prevail over other objectives
and principles in the DP. While the subject land is not a catalyst site, and nor is it located
in Policy Area 29, the inclusion of the catalyst site provisions in the DP diminishes the
significance that might otherwise possibly be given to the contention by RJK about the
desired pyramidal form.
99 The complaint here was that East Terrace Policy Area 29, which falls within
the CLZ, and the existence of catalyst sites in that Policy Area, are irrelevant to
the construction of PDC 21, which relates only to the CCZ. RJK submitted that the
judge appeared to have concluded, wrongly, that the catalyst site provisions were
in conflict with CCZ PDC 21 or the transition provisions.
100 I think that this contention reads too much into the judge’s reasons. The judge
was simply observing that the existence of catalyst sites in the neighbouring CLZ
supported the inference that the desired pyramidal form was a general, rather than
an absolute, prescription, and capable of exception.
101 On this question of the proposed development being sympathetic to the
anticipated city form, the judge concluded:27
Moreover, even if SCAP was not satisfied whether the proposed planning development was
“sympathetic” to the desired design character and the anticipated city form, it was still
entitled to approve the development in the exercise of its planning judgment having regard
to the other provisions of the DP that I have referred to at [434]. Moreover, the use of the
word “should” in CCZ PDC 21 makes clear that this principle is directory rather than
mandatory28 and, of course, no provision in a development plan is mandatory29. For these
26 [2022] SASC 11 at [443]-[444].
27 [2022] SASC 11 at [445].
28 Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [38] (Doyle CJ). To
use the language applied before Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR
355.
29 South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 38 (King
CJ, Prior and Perry JJ agreeing)
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reasons I am not persuaded that SCAP erred in the way contended by RJK in ground 7.1.5.
I therefore dismiss ground 7.1.5.
(Footnotes in original)
102 RJK complained about this paragraph for the same reason as it complained
about the statement at [434], above, in that it set up a conflict between provisions
where none existed. I reject that contention for the reasons expressed above.
Other complaints about the judge’s approach to construction of the DP
103 RJK pointed to a number of other paragraphs in the judge’s reasons that, they
submitted, tended to show an erroneous approach to construction of the DP of the
kind already identified. In concluding his rejection of the complaint that SCAP had
failed to take into account various considerations required by the DP, the judge
said:30
Whether or not a building that would exceed 22 metres in height should be permitted on
the subject land, and also the extent of the excess height, was a matter of planning policy
that required SCAP to evaluate and give such weight as it considered appropriate to the
competing policy objectives and principles expressed in the DP, including in relation to the
questions of transition in building heights, the interface with the CLZ and the effect upon
its residents.
104 RJK submitted that this showed the erroneous approach already identified, in
that the correct approach was to construe the DP as a whole, and to do so correctly
as a matter of law, before moving to assessment of the development. Any
competition or conflict between provisions was required to be resolved as a matter
of law before proceeding to the assessment. Again, it is not apparent to me that the
judge was doing anything more here than articulating the role of the
decision-maker in giving weight to the various relevant considerations applicable
to a particular proposal. In any event, I accept that it is necessary to construe the
relevant provisions of the DP, in context, before looking to apply them.
105 Finally, RJK take issue with the following paragraphs, rejecting claims that
SCAP had misconstrued the DP:31
RJK seeks to put a particular construction on the DP and assert that SCAP must have erred
because its decision was allegedly not consistent with that construction. There are two
difficulties with that approach. First, there is no direct or indirect evidence to support the
inferences advanced by RJK as to the reasoning adopted and applied by SCAP when it
decided to approve the development. Secondly, I do not consider that the terms of the DP
support the construction advanced by RJK.
In that respect I do not accept the correctness of the contention that SCAP wrongly
construed the DP as contemplating buildings on the subject land that greatly exceeded the
maximum height of 22 metres. SCAP was most certainly aware from the material before it
that the maximum height was 22 metres. However, provided that the criteria in CCZ PDC
21 were satisfied, and provided also that regard was had to the other relevant provisions of
30 [2022] SASC 11 at [482].
31 [2022] SASC 11 at [522]-[523].
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the DP to which I have referred, SCAP could determine in the exercise of its planning
judgment that this height limit could be exceeded. It was then also a matter of planning
judgment for SCAP to determine if the proposed height of 53.9 metres was appropriate in
light of all relevant provisions of the DP.
106 RJK submitted that it is apparent from these paragraphs that the judge
construed the DP as permitting a development to exceed the height limit to any
degree, even where this was not sympathetic to the anticipated city form. It
constituted a construction allowing a decision maker to pick and choose parts of
the DP, and even parts of PDCs, and elevate them to justifications for departing
from the actual text, meaning and intent of the DP. This complaint is best answered
by construing the relevant provisions of the DP in context.
Key issues of construction of the DP
107 At the outset of any exercise of construction of a Development Plan, it is
useful to recall the observation by Debelle J in St Ann’s College Inc v City of
Adelaide, quoted earlier in these reasons, that the provisions of the Development
Plan are not to be construed like a statute. The language of a Development Plan is
that of goals and guiding principles.32
108 The critical provisions of the DP in the present case relate to building height
in the CCZ and transition from the CCZ to other Zones, specifically in this case,
the CLZ. For the purpose of this analysis, it will be helpful to repeat some of the
provisions of the DP that have been referred to above and, in context, to make
some observations of the relevance of those provisions to the proposed
development.
109 A useful conceptual starting point is the indication of maximum building
heights in Concept Plan Figures CC/1 and 2. These are not absolute maxima; the
provisions of the DP then ascribe significance to these figures. As already
discussed, the proposed development sits within a 22-metre maximum building
height area.
110 As identified above, CCZ PDC 21 has the most significantly direct
application to a proposed development that exceeds the maximum height of its
area. It is necessary to approach that provision, and the circumstances in which it
contemplates over-height development, in the broader context of the DP. That
context commences with the statement in the Preface to the DP, that when
assessing a development against the DP, greatest weight is to be applied to the
expressed Desired Character and development achieving and being consistent with
such.
111 Next, Council Wide Objective 46 aims for reinforcement of the city’s grid
pattern of streets through high rise development framing, relevantly, the Park
Lands. As RJK submitted, the reference to high rise development is not a reference
32 St Ann’s College Inc v City of Adelaide [1999] SASC 479 at [16] (Debelle J, Duggan and Williams JJ
agreeing).
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to over-height development. Nonetheless, the existence of an Objective that
incorporates framing the Park Lands through high rise development is one
contextual consideration when it eventually comes to assessing the proposed
development.
112 Council Wide Objectives 47(a) and (d) assume some significance to the
question of height:
Objective 47: Buildings should be designed to:
(a) reinforce the desired character of the area as contemplated by the minimum
and maximum building heights in the Zone and Policy Area provisions;
...
(d) provide for a transition of building heights between Zone and Policy Areas
were building height guidelines differ.
113 Importantly, these Objectives place emphasis on the maximum building
heights as informing the Desired Character of an area, both in terms of promoting
the maximum heights themselves and the transition between different maximum
height areas. In doing so, they also expressly identify the maximum heights as
guidelines. These Objectives may be described as ascribing significance to
maximum heights in the context of the contribution that building height can make
to Desired Character and transition between maximum height areas.
114 Council Wide Objective 48 then gives contextual emphasis to design
excellence, ‘in terms of scale, bulk, massing, finishes, colours and architectural
treatment’. The relationship between ‘design excellence’ and quantitative features
of a building is a repeating theme in the DP. Thus Council Wide PDC 167 then
provides:
167 Where development significantly exceeds quantitative policy provisions, it should
demonstrate a significantly higher standard of design outcome in relation to
qualitative policy provisions including pedestrian and cyclist amenity, activation,
sustainability and public realm and streetscape contribution.
115 As I will come to, this principle is then reflected in CCZ PDC 16. For present
purposes, however, I observe that Council Wide PDC 167 envisages situations
where a development may ‘significantly exceed’ quantitative policy provisions.
There is no apparent reason to exclude building height from that description.
116 Council Wide PDC 169 then provides that the height and scale of
development and the type of land use should ‘reflect and respond’ to the role of
the street it fronts as illustrated on Map Adel/1 (Overlay 1). This is an example of
where planning language descends into obscuring metaphor. However, whatever
it means precisely to ‘reflect and respond’ to the role of a street, it is possible to
glean a general sense of the meaning.
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117 The Map Adel/1 (Overlay 1) designates several main streets in the city as
‘Primary City Access’, ‘Secondary City Access’ or ‘Local Connector’. For
example, West Terrace, North Terrace, South Terrace and Hutt Street are ‘Primary
City Access’ roads, as are Sir Donald Bradman Drive, Glen Osmond Road and
Anzac Highway. Peacock Road and Glover Avenue are ‘Secondary City Access’
roads. Sturt and Gouger Streets are ‘Local Connector’ roads. It would appear that
Council Wide PDC 169 contemplates greater height and scale where the street has
a more significant arterial role. Having said that, the designations of the streets in
Map Adel/1 (Overlay 1) cut across maximum building height areas; for example,
the centre of the CCZ that has no building height limit features each designation
of main road.
118 It follows that with any development, the role of the street it fronts is a
relevant consideration among many. In the present case, the proposed development
is on the corner of Hutt Street, a designated ‘Primary City Access’ road, and the
part of East Terrace that becomes Bartels Road, a ‘Secondary City Access’ road.
119 Council Wide PDC 170 is also relevant. It requires that the height, scale and
massing of buildings should ‘reinforce… the desired character, built form, public
environment and scale of the streetscape as contemplated within the Zone and
Policy Area’. The proposed development is in the CCZ, no policy area. I have
discussed the Desired Character and Objectives of the CCZ, above. Otherwise,
Council Wide PDC 170 directs attention to the more specific provisions of the
CCZ relevant to the proposed development, which I discuss below.
120 I have already discussed Council Wide PDC 173 in some detail, specifically
its subject matter of transition between a non-residential Zone and, relevantly, the
CLZ, with its direction to focus taller elements away from the common Zone
boundary.
121 Council Wide PDC 191 addresses the significance of the proposed
development being on a corner site:
191 New development on major corner sites should define and reinforce the townscape
importance of these sites with appropriately scaled buildings that:
(a) establish an architectural form on the corner;
(b) abut the street frontage; and
(c) address all street frontages.
122 This provision does not define what it means by ‘appropriately’. In context,
it appears more directed to contemplating the establishment of a significant
architectural form on major street corners. It does not speak to questions of height
directly, although height will presumably contribute to architectural form.
123 Finally, on the topic of Council Wide PDCs, Council Wide PDC 270 provides
that development that abuts, straddles or which is within 20 metres of a Zone or
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Policy Area boundary ‘should provide for a transition and reasonable gradation
from the character desired from one to the other’.
124 It is helpful at this juncture to take stock of the relevant provisions operating
at the Council Wide Level. I do not read any of these provisions as being in
‘conflict’ or directly in competition with each other. When they are read as non-
mandatory guides that provide a contextual framework for the specific provisions
relevant to the Zone, they can be seen as matters to which regard must be had when
assessing a development proposal to which they are relevant. The weight to be
given to them is a matter of planning judgment. The following general propositions
may be drawn from them:
it is desirable to frame the Park Lands with high rise development;
maximum building heights are an important contributor to the Desired
Character of a Zone and to the management of the transition between
maximum height areas. To this end, taller buildings are discouraged from
being close to the boundaries of lower maximum height areas;
transition between Desired Character of areas is to be managed;
maximum height limits may be exceeded ‘significantly’. The standard of
design is highly relevant to whether this should occur in a given case;
the role of the street that the development fronts can inform the desirable
height and scale of the development; and
where the development is on a significant corner, that can inform the scale of
the development, including by the establishment of an architectural form.
125 Again, these are matters to which regard must be had. The Council Wide
provisions are relatively general in their prescriptions. They provide context to, but
are ultimately subordinate to, more specific provisions, and in particular, the Zone
objectives and PDCs. It is necessary then to turn to the Zone provisions.
126 The issue of transition from the CCZ to the CLZ, given the location of the
proposed development, is significant in the present matter. The Desired Characters
of the CLZ and East Terrace Policy Area 29 are obviously relevant to
understanding the exigencies of transition in this case. These are set out in the
Appendix to these reasons. The maximum building height of the East Terrace
Policy Area 29 in the CLZ is 14 metres.33 East Terrace Policy Area 29 PDC 13
contemplates medium to high scale residential development in excess of the
maximum height limit on catalyst sites (being sites greater than 1500 square
metres). As already noted, Council Wide PDC 173 contemplates a less abrupt
transition than would be created by the proposed development of 53.9 metres
33 East Terrace Policy Area 29 PDC 8.
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directly across Cleo Lane from the East Terrace Policy Area. Again, however, this
is a relevant contextual consideration, not an absolute prohibition.
127 We then come to the CCZ. I have set out relevant parts of the Desired
Character of the CCZ, above. It should be reiterated that the Introduction to the
CCZ provides that the Desired Character, Objectives and PDCs of the CCZ are in
addition to, and in the case of conflict take precedence over, the more general
provisions of the Council Wide provisions. The greatest weight is to be given to
satisfying the Desired Character for the Zone. Relevantly, the Desired Character
includes the following paragraphs:
This Zone is the economic and cultural focus of the State and includes a range of
employment, community, educational, tourism and entertainment facilities. It is anticipated
that an increased population within the Zone will complement the range of opportunities
and experiences provided in the City and increase its vibrancy.
…
High-scale development is envisaged in the Zone with high street walls that frame the
streets. However an interesting pedestrian environment and human scale will be created at
ground floor levels through careful building articulation and fenestration, frequent
openings in building façades, verandahs, balconies, awnings and other features that provide
weather protection.
128 Objective 8 of the CCZ is development that contributes to the Desired
Character of the Zone. I have already referred to Objectives 1 and 2; Objective 2
includes medium and high density living.
129 We then, finally, come to the PDCs of the CCZ that address building height.
It is manifestly clear from PDC 16 that the CCZ contemplates over-height
development:
16 Development that exceeds the maximum building height shown in Concept Plan
Figures CC/1 and 2, and meets the relevant quantitative provisions should
demonstrate a significantly higher standard of design outcome in relation to
qualitative policy provisions including site configuration that acknowledges and
responds to the desired future character of an area but that also responds to adjacent
conditions (including any special qualities of a locality), pedestrian and cyclist
amenity, activation, sustainability, and public realm and streetscape contribution.
130 As identified above, PDC 16 reflects the more general statement in Council
Wide PDC 167 with respect to where a development ‘significantly exceeds
quantitative policy provisions’. It is a condition of exceeding the maximum
building height that the development should ‘demonstrate a significantly higher
standard of design outcome’.
131 What this means in practice was contentious. Before coming to the impact of
this provision, it is necessary to refer to certain others. PDC 23 addresses the
interface between the CCZ and the CLZ, whether the development is over-height
or not:
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23 Development should manage the interface with the City Living Zone ... in relation
to building height, overshadowing, massing, building proportions and traffic impacts
and should avoid land uses, or intensity of land uses, that adversely affect residential
amenity.
132 PDC 25 then addresses directly over-height development that is directly
adjacent to the CLZ:
25 Parts of a development that exceed the prescribed maximum building height shown
on Concept Plan Figures CC/1 and 2 that are directly adjacent to the City Living …
Zone boundar[y] should be designed to minimise visual impacts on sensitive uses in
the adjoining zones and to maintain the established or desired future character of the
area. This may be achieved through a number of techniques such as additional
setback, avoiding tall sheer walls, centrally locating taller elements, providing
variation of light and shadow through articulation to provide a sense of depth and
create visual interest, and the like.
133 PDC 25 identifies that over-height development may even occur at the
boundary of the CLZ. If it does, there is a design directive to minimise the visual
impact on the adjacent Zone.
134 There are, therefore, provisions that contemplate the existence of over-height
development in the CCZ, including adjacent to the CLZ, that are accompanied by
directives of a qualitative nature. It is reasonable, however, to read these provisions
as applying on the assumption that PDC 21 has been satisfied. That PDC is set out
in its entirety above; I set out again here, for convenience, the chapeau:
21 Development should not exceed the maximum building height shown in Concept
Plan Figures CC/1 and 2 unless, notwithstanding its height, it has regard to the
context that forms the positive character of the locality and is sympathetic to the
desired character of the Zone or Policy Area and the anticipated city form expressed
in Concept Plan Figures CC/1 and 2, …
135 As RJK submitted, this provision sets out four dispensatory circumstances
that together permit a development to exceed the maximum building height. RJK
framed this submission in mandatory language, but it is clear enough that PDC 21
is, like the rest of the DP, directory rather than mandatory.
136 RJK also submitted that the words ‘notwithstanding its height’ carried
significance in that they required the planning authority to put to one side ‘only the
fact of the exceedence of the maximum’, following which all dispensatory
circumstances must be established. I am not sure what it would mean to put that
fact to one side. The development must be assessed in its totality. I rather interpret
the chapeau as saying, in its directory fashion, that unless the dispensatory
circumstances are established (each of those circumstances requiring a planning
judgment), an over-height development should not be approved. That does not
require putting the fact of the development being over-height to one side. The
question is whether those circumstances are established even though
(‘notwithstanding’) the development is over-height.
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137 The first three of the four dispensatory circumstances are expressed
abstractly. First, the development should ‘have regard’ to the context that forms
the positive character of the locality. RPA submitted that ‘the positive character of
the locality’ referred to ‘the existing situation on the ground’. RJK accepted that
the precise extent of a locality was a matter of judgment, but that one would
ordinarily expect a planning authority to identify a locality when dealing with an
application. In any event, RJK submitted that the locality would necessarily
include, in this case, the immediately neighbouring area of the CLZ, being directly
across Cleo Lane.
138 I accept that the locality would extend to the immediate surrounding area,
part of which falls within the CLZ. The fact that building heights are necessarily
lower in that part of the locality would then be part of the ‘positive character’ of
that locality. However, it might also be thought that the building situated at
293-297 Pirie Street, to the west of the proposed development across Hutt Street,
which is 60 metres high, is also part of the ‘positive character of the locality’. It is
not for this Court to make a finding to that effect. The point is that ‘the positive
character of the locality’ will not just be characterised by the built form in one
direction.
139 It is unlikely that an expert planner would have difficulty in identifying the
locality of a development or even for that matter, describing the positive character
of that locality. The greater difficulty for present purposes lies in understanding
what it means for a development to ‘have regard’ to the context that forms the
positive character of the locality. With respect to the drafters of the DP, this
deploys abstraction upon abstraction. Presumably, it means that the development
should not be entirely out of keeping with its close surrounds. However, that is to
re-state the abstraction. This condition appears designed to allow the
decision-maker considerable latitude of assessment. Matters the subject of various
provisions already considered will also likely be relevant, such that the
development fronts a Primary City Access Road and a Secondary City Access
Road, is on a corner and faces the Park Lands.
140 The second dispensatory circumstance is that the development should be
‘sympathetic to the desired character of the Zone or Policy Area’. This again
deploys an abstract metaphor of dubious assistance. As the primary judge
observed:34
I consider the word “sympathetic” to be an unusual choice of word for use in a statutory
instrument, even one dealing with the present subject matter. None of the definitions of
“sympathetic” provided in the Macquarie Dictionary are relevant in the context of CCZ
PDC 21. I agree with the submission by RPA that of the multiple definitions of “sympathy”
provided in the same dictionary only that of “agreement, consonance or accord” is of any
possible relevance.
34 [2022] SASC 11 at [441].
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141 The Desired Character of the CCZ (the proposed development being in a no
policy area) is set out above. Aspects of these passages in the DP are easy enough
to understand, such that for a development to be ‘sympathetic’ to those aspects
may well be understood to be one that will be likely to reflect the character traits
therein described, such as in the third to fifth paragraphs of the ‘Desired Character’.
142 Other aspects of the Desired Character repeat the less helpful abstract
language that tends to obscure, rather than enlighten. For example:
New development will achieve high design quality by being:
(a) Contextual – so that it responds to its surroundings, recognises and carefully considers
the adjacent built form, and positively contributes to the character of the immediate area.
143 Assessing what it is to be ‘sympathetic’ to this aspect of the Desired
Character, as a dispensatory circumstance from the maximum building height, will
require the decision-maker to navigate the pretensions of this language. Ultimately,
what is required is a (planning) judgment of permissibility in light of the
surroundings of the proposed development, notwithstanding its height.
144 Given the breadth of matters covered under the heading ‘Desired Character’,
it is difficult to see that this question of sympathy could be anything other than an
instinctively synthesised, planning judgment.
145 The third dispensatory circumstance is that the development should be
sympathetic to the anticipated city form expressed in Concept Plan Figures CC/1
and 2. This exhortation of sympathy is not to that which exists (such as ‘the
positive character of the locality’), but to that which is anticipated. This refers to
the general pyramidal form of the city as described by the primary judge.35 It is not
an injunction to adhere to this form, only to be ‘sympathetic’ to it. This seems to
bring back in some relevance of building height limits, notwithstanding that it
occurs within a dispensatory circumstance from those directed limits. However, it
is not a requirement to be ‘sympathetic’, let alone largely adhere to, the height limit
of the area itself, but rather to the pyramidal form created by the combination of
height limits.
146 Bearing in mind that this entire principle is directory rather than mandatory,
it is again difficult to know what, if any, hard limits might be brought in by this
dispensatory circumstance. For example, in the present case, is the necessary
‘sympathy’ to the pyramidal form aided by the location of the proposed
development on a corner of a Primary City Access Road and a Secondary City
Access Road, facing the Park Lands, close to a 53-metre maximum building height
area directly to the west? As the primary judge continued, having articulated the
only possible meaning of ‘sympathy’ in this context as ‘agreement, consonance or
accord’:36
35 [2022] SASC 11 at [443].
36 [2022] SASC 11 at [441].
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Perhaps for that reason, the author of the Agenda Report discussed whether the proposed
development would complement the anticipated city form contained in the relevant
concept plan. The author of the Report advised that although the height of the proposed
development exceeded the ordinary limit of 22 metres, it was consistent with and
complementary to the eights contemplated from 70 metres westwards. Those buildings
formed the backdrop against which the development will be viewed from the approach into
the city.
(Emphasis added)
147 The fourth dispensatory circumstance is that one of sub-paragraphs (a), (b)
or (c) of PDC 21 should be satisfied. These paragraphs describe more concrete
conditions. While RJK challenged the satisfaction of paragraph (c) at first instance,
it was not contended on appeal that it was not open to SCAP to conclude that the
requirements of the paragraph were met.
148 The primary judge concluded that satisfaction of the dispensatory
circumstances in PDC 21 was a matter of planning judgment. That conclusion was
correct. However, it does not address the issue entirely. The evaluative judgments
were bounded by the obligation to consider the proposed development against the
DP, and to make an assessment that the development was not seriously at variance
with the DP.37 What makes it difficult for the Court on an application for judicial
review in the present case, and in the absence of an obligation of SCAP to give
reasons, is the obscure language deployed in the first three dispensatory
circumstances in PDC 21.
149 RPA characterised the effect of the various provisions discussed above as
creating two regimes. One is what might be described as the standard regime,
which is largely bounded by the pyramidal form given effect by the various
building height maxima. That is applicable to development of ordinary design
quality and ordinary environmental performance. The second is what might be
described as the over-height regime. This, in RPA’s submission, places ‘no weight’
on the numerical height limits. Rather, it emphasises the quality of design and the
quality of environmental outcomes achieved by the proposed development.
150 In this regard, RPA emphasised Council Wide PDC 167 and the various
PDCs of the CCZ discussed above. The availability of the over-height regime
depends on satisfaction of PDC 21. In this way, if a development was of
sufficiently high design quality with sufficiently good environmental outcomes,
there would simply be no limit to the height to which a development might be built,
subject to airport height limits.
151 There are a number of reasons to think that the DP should not be taken to be
establishing two distinct height regimes with such dramatic consequences. First, it
does not expressly purport to do so. While that is not the end of the matter, it feeds
into the next consideration. This is that the purported determinants for whether
37 Development Act 1993 (SA) ss 33(1)(a), 35(2); Mar Mina (SA) v City of Marion [2008] SASC 120 at
[34] (Debelle J).
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development falls within the putative standard regime or the over-height regime
are, on RPA’s argument, highly value-laden criteria: design quality and
environmental outcomes. These would be unlikely and tendentious bases for
establishing an objective streaming of buildings into regimes of necessity of
compliance with maximum height limits.
152 Next, a two-tiered structure, so described, would have the effect of
emasculating much of the relevant context provided by the DP. While the CCZ
PDCs take precedence over the more general Council Wide provisions, those
Council Wide provisions are still capable of providing context and being,
therefore, relevant considerations. To posit that a value judgment as to high design
quality and environmental outcomes is sufficient effectively to render otiose all
other provisions that are capable of influencing, and indeed limiting, height,
possibly significantly, would be to decontextualize PDC 21 in a manner for which
there is no textual, contextual or purposive support.
153 To take the present case as an example, if we assume that the proposed
development is judged to feature an array of high design quality and environmental
features, the conclusion may then be available that the DP contemplates some level
of over-height development, as recognised by CCZ PDC 16. However, whether
the thresholds set by PDC 21 are met requires planning judgments not just of these
matters but also, for example, whether the proposed development is ‘sympathetic’
to the anticipated city form, that is, the pyramidal form.
154 I am prepared to accept, for the reasons discussed above, that this does not
mean ‘adheres to the anticipated city form’. Whether it is ‘sympathetic’,
notwithstanding its height, will depend on a host of matters. Relevant matters in
the present case would appear to include the fact that it is on a corner, that the
corner is of a Primary City Access road and a Secondary City Access road, that it
also faces the Park Lands, that it is close to a 53-metre maximum height area, that
it is a primarily residential development and that it borders the CLZ. A significant
element in all of this, however, will be the height of the development itself. As I
discussed above, the phrase ‘notwithstanding its height’ does not mean that height
is put to one side. The question is whether the dispensatory circumstances operate
even though the building is of such a height.
155 It then follows that the assessment of a building of high design quality on the
site of the proposed development may be quite different depending on whether it
is 30 metres, 53 metres or 80 metres. Moreover, that is not an assessment that only
depends on the evaluation of design quality and environmental outcomes. For
example, the proximity of the proposed development to a 53-metre zone may speak
in favour of a 53-metre building in a way that it would not speak in favour of an
80-metre building. The corner site, located on Access Roads, together with the
Park Lands frontage, may speak in favour of a 53-metre building in a way that
would not be available if the proposed development was located further to the
south. Provisions relevant to transition remain relevant, here in respect of the
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western border over Hutt Street with the 53-metre zone and east across Cleo Lane
to the CLZ.
156 The DP requires a decision-maker to consider all these matters. Questions of
design quality and environmental outcomes contribute to the required planning
judgment in significant ways. However, I reject the reductionism of the argument
that these matters of value judgment then establish two different height regimes.
Rather, they have particular significance to a planning authority’s consideration of
whether to approve an over-height development. An over-height development with
poor design and environmental specifications would be unlikely to be approved.
An over-height development with unquestionably superior design and
environmental specifications would still require an assessment against all of the
relevant provisions of the DP.
157 It also follows, however, that I reject the argument of RJK that the
dispensatory circumstances in PDC 21 exert a gravitational pull on height maxima
to an extent that the provision contemplates developments that only exceed the
maximum building height by a little. The principle does not say this. Further, the
proposition is belied by the language of PDC 21. The reliance in that provision
upon abstraction and metaphor inevitably grants SCAP wide scope for evaluative
judgments as to whether a proposed development ‘has regard’ to the context so
described and is ‘sympathetic’ to the considerations stipulated.
158 The provisions relevant to transition, such as PDC 173, remain relevant to
over-height developments. They are contextual matters to which the planning
authority must have regard. Again, however, their significance in application to a
particular development proposal will be a matter of judgment in the context of all
relevant considerations. They do not mandate an outcome within only a narrow
band of possibilities.
159 Ultimately, the planning authority has an obligation to assess the proposed
development according to law, taking into account all relevant considerations,
however abstractly they may be expressed. It is also required to make an
assessment as to whether the proposed development is seriously at variance with
the DP. Within those boundaries, it is given broad scope to make evaluative
judgments. While I reject RPA’s reductive dual-regime construction, I also reject
RJK’s contention that on a proper construction of the DP, it could never be
permissible to approve a 53.9 metre building in a 22-metre maximum height area.
Whether it was open to assess that the proposed development was not seriously
at variance with the DP
160 In Mar Mina (SA) Pty Ltd v City of Marion,38 Debelle J explained that the
expression ‘seriously at variance with the Development Plan’ refers to ‘that which
is an important or grave departure in either quantity or degree from the
38 [2008] SASC 120.
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Development Plan. It denotes something which is plainly not slight or trifling’.39
In that case, a parcel of land in a Neighbourhood Centre Zone featured a building
that had formerly been used as a supermarket. The applicant wished to establish a
small primary school on the land and lodged a development application to that
effect.
161 The Development Plan exhibited what Debelle J described as a ‘manifest
intent’ that should be developed primarily for retail use and ‘for other facilities to
serve the commercial and communal needs of the surrounding neighbourhood’.40
Debelle J concluded that the proposal was seriously at variance with the
Development Plan. In reaching that conclusion, he made a number of helpful
observations about the approach to be taken in determining whether that is the
case. On the role of the Court on a judicial review in this context, he said:41
The question whether the development consent is invalid does not turn upon the court’s
assessment of the question whether the development is seriously at variance with the
Development Plan but on whether the consent is invalid because it results from a mistake
of law, from reliance upon irrelevant matters, from a failure to take into account relevant
matters or if the decision is one that no reasonable authority could properly have reached.
162 This passage echoes the well-known statement by the High Court in Craig v
South Australia.42 For present purposes, the complaint on appeal is that it was not
open to SCAP to assess that the proposed development was not seriously at
variance with the DP, given that it has a proposed height in excess of 53 metres.
The complaint in its terms is of a failure to meet a statutory standard (‘not seriously
at variance’). Satisfaction of that standard requires an evaluative judgment by
reference to the parameters set by the Development Plan. The complaint is, then,
not strictly a complaint of the unreasonableness of the exercise of a discretion,43
but rather reflects the ‘illogicality or irrationality’ ground of judicial review, as
accepted by a majority of the High Court in Minister for Immigration and
Citizenship v SZMDS.44 Crennan and Bell JJ described this as:45
an allegation of the same order as a complaint that a decision is “clearly unjust” or
“arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction
mandated by the statute imports a requirement that the opinion as to the state of satisfaction
must be one that could be formed by a reasonable person. The same applies in the case of
an opinion that a mandated state of satisfaction has not been reached.
163 Whether it is open to conclude that a proposed development is not seriously
at variance with a Development Plan is a conclusion hedged by the terms and
39 Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120 at [33].
40 Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120 at [38].
41 Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120 at [49].
42 (1995) 184 CLR 163 at 179.
43 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
44 (2010) 240 CLR 611 at [23]-[24] (Gummow ACJ and Kiefel J); [77]-[78], [86] (Heydon J); [129]-[130]
(Crennan and Bell JJ).
45 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell
JJ).
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language of the Development Plan itself. As Bleby J observed in Alexandrina
Council v Strath Hub Pty Ltd:46
An important factor in making the assessment will turn on the terms of the relevant part of
the development plan itself. Some development plans or parts thereof will be in general
terms and will allow for a range of possibilities within a particular zone. Others will be
more particular.
164 The language of a Development Plan will therefore be critical in framing the
scope for concluding that a proposed development will not be seriously at variance
with it.
165 In Hayes v Development Assessment Commission (No 4),47 the plaintiff
sought a declaration that a proposed development was seriously at variance with
the relevant Development Plan. The proposed development was a retail shopping
centre of some 4,236 square metres, which when added to the existing retail
premises at the site, would create a total of 4,767 square metres. The Court had
previously held that the intention of the relevant Principle of Development Control
was that development should be promoted in the Policy Area ‘and comprise a
relatively large supermarket with an area up to 2,000 square metres and other shops
so that the total area devoted to retail floor space in Policy Area 1 is 3,700 square
metres’.48 The proposal therefore exceeded the maximum area prescribed by some
1,000 square metres.
166 As to whether this was seriously at variance with the Development Plan,
Debelle J said:49
The question whether the proposed development is seriously at variance with the
Development Plan is not to be resolved simply by mathematical calculation. In those cases
where the Development Plan prescribes standards by reference to areas, it is appropriate to
make calculations of that kind. But those calculations should not receive undue weight. It
is important also to have regard to the spirit and intent of the Development Plan for the
zone and the overall intent of the Development Plan…
167 Debelle J then engaged in a close examination of the intent in the relevant
Development Plan to create a hierarchy of shopping centres and the geographical
distribution of that hierarchy. In doing so, he emphasised:50
When considering the Development Plan, it is relevant also to bear in mind that it is not
expressed with the degree of precision and careful use of language one generally finds in
statutes and in other legal documents. It also refers to concepts which have a degree of
elusiveness or which are not always expressed in clear terms. A number of the Objectives
of the Plan require the exercise of a value judgment. All of those matters serve to underline
the warning of King CJ in R v City of Munno Para that the Court must ensure that it does
46 (2003) 129 LGERA 389 at [30].
47 (1997) 95 LGERA 7.
48 Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7 at 27.
49 Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7 at 29.
50 Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7 at 29.
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not become involved in matters of planning judgment and the departure from the Plan must
be capable of being discerned plainly.
168 His Honour concluded in that case that the proposal was seriously at variance
with the Development Plan. The proposed supermarket was to be half as large
again as the permitted maximum area and the total floor area exceeded the
permitted maximum for the Policy Area by 1,000 metres. These excesses
represented a ‘serious departure’ from the Objectives for the zone and from the
relevant Principle.
169 RJK drew the obvious comparison between the area of the proposed
supermarket in that case being 1.5 times the size of the permitted maximum area
and the present case, where the proposed height is almost 2.5 times the maximum
building height for the area. Moreover, they submitted that the provisions of the
DP exhibited at least three purposes of the DP contradicted by the proposed
development, being:
achievement of the anticipated city form;
regulation of height in the particular area, having regard to adjacent buildings
and the existing locality; and
protection of residents in the adjacent CLZ.
170 These are all relevant considerations. However, I am not satisfied that it was
not reasonably open to SCAP to conclude that the proposed development was not
seriously at variance with the DP. This is for the reasons discussed above in
relation to the construction of the DP and having regard in particular to the breadth
of language of the dispensatory provisions in PDC 21.
Whether it was open to grant development plan consent for the proposed
development
171 As identified at the beginning of these reasons, SCAP was required to make
the consent decision as well as the variance decision. RJK submitted that even if
the variance decision was reasonably open, the consent decision was unreasonable
for lack of an evident and intelligible justification.51 In essence, they contended that
taking into account the transition and interface provisions, and given that the over-
height provisions apply across the CCZ, the proposed development could not have
merited consent on any proper construction of the DP. They also submitted that to
the extent that there was any conflict, the transition and interface provisions were
an instance of specific provisions derogating from general over-height provisions,
with the consequence that SCAP ‘clearly went wrong’ in its assessment.
172 This complaint does not withstand the construction analysis undertaken
above. As discussed, the CCZ PDCs take precedence over the more general
Council Wide provisions. Those Council Wide provisions, including those that
51 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
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address transition, remain relevant. However, for the reasons given above, I am
not persuaded that the consent decision lacked an evident and intelligible
justification when assessed against the whole of the DP.
173 I would dismiss Grounds 1 and 2.
Whether SCAP merely applied the reasoning in the Agenda Report (Ground
3)
174 I have set out the effect of the Agenda Report, above. RJK contended that the
primary judge erred when determining Grounds 7-10 of the application for judicial
review by failing to infer that SCAP had simply applied the reasoning set out in
that Report. As already observed, SCAP resolved in the precise terms
recommended in the Agenda Report. RJK submitted that in these circumstances,
and where the SCAP minutes ‘record no departure from the Agenda Report’, it
should readily be inferred that SCAP failed to understand that the proposal was
seriously at variance with the proposal. They further submitted that SCAP even
failed to recognise that there was a significant departure from the provisions of the
Plan relating to building height in the CCZ, achievement of the anticipated city
form and development adjacent to the CLZ.
175 The first part of this submission is premised on the contention that the
development proposal was necessarily seriously at variance with the DP. I have
rejected this premise. The second part has a more general effect, that it should be
inferred that SCAP did not have regard to relevant considerations speaking against
approval of the proposed development.
176 The first matter RJK raised was that SCAP had commissioned the Agenda
Report itself. It pointed to the observation by Debelle J in Hayes:52
It would be unrealistic to suppose that the Commission failed to have regard to the report
which it had itself commissioned.
177 The question, of course, is not whether SCAP had regard to the Agenda
Report. It is whether it effectively adopted it without more. In Hayes, there was an
evidential basis from which to infer that the Development Assessment
Commission had relied upon the consultant’s erroneous report, not least that the
report had been commissioned following two earlier successful judicial review
applications. Here, however, the judge held that:53
… there is nothing to indicate that SCAP requested or directed that the Agenda Report be
prepared by a consultant planner, or by Mr Bills in particular, rather than a departmental
officer. In fact, there is no information before the Court to explain why the report was
prepared by a consultant rather than by a departmental officer.
52 Hayes v Development Assessment Commission (No 4) (1997) 95 LGERA 7 at 30.
53 [2022] SASC 11 at [377].
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178 RJK also relied on Coastal Ecology Protection Group Inc v City of Charles
Sturt.54 In that case, Blue J inferred that a Council had not taken two relevant
considerations into account. The evidence established that neither consideration
had been discussed at the Council meeting where the decision was made.
179 There was no evidence to like effect in the present case. Indeed, RJK
submitted to the primary judge that the Court should draw an adverse inference on
account of the failure by the first and second respondents to call any evidence to
establish the reasons for the two decisions.55 The judge observed:56
The Court has no information as to whether persons in addition to the five SCAP members
(and presumably its secretary) remained in attendance while deliberations occurred or, if
so, on what basis. The minutes simply record that at the commencement of the meeting (i.e.
apparently prior to applications being called on for hearing) two departmental officers and
the author of the Agenda Report, Mr Bills, were present in relation to the proposed
development. The minutes do not record whether the latter three persons remained in
attendance while SCAP deliberated. While I am aware from other proceedings that
departmental staff have remained during deliberations, there is no information as to what
occurred on this occasion. However, the minutes do record that the application was
discussed by SCAP.
180 The judge further noted that the submission that such an adverse inference
should be drawn was first advanced in oral submissions, after counsel for the first
and second respondents had been excused from further attendance.57 Absent notice
that this was in issue, any force the submission might have had was thereby
significantly diminished. That is even before account is taken of the general
principle that a tribunal ordinarily should not take an active part in judicial review
proceedings and, rather, should abide the event.58
181 Subject to one matter, discussed below, RJK did not submit before this Court
that there was an obligation on the part of SCAP to give reasons. That is consistent
with general principle59 and the approach taken by this Court in respect of planning
decisions.60 As the primary judge observed:61
It is a long-standing practice that SCAP and antecedent bodies have not published reasons
for their decisions. While I am not aware of the precise reason for that approach, there may
be significant practical difficulties that militate against a multi-member collegiate
decision-maker publishing reasons where the decision-making process involves the
weighing up of many potentially countervailing objectives and policies contained in a
development plan. In this case, the decision was made by five members of SCAP.
Individual members may possibly have held differing views on particular issues but
54 (2017) 227 LGERA 1.
55 [2022] SASC 11 at [380].
56 [2022] SASC 11 at [381].
57 [2022] SASC 11 at [382].
58 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36.
59 Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
60 Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at [157].
61 [2022] SASC 11 at [384].
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ultimately reached a unanimous, consensus or majority view that approval should be
granted. A requirement to publish reasons may have significant practical consequences.
182 RJK submitted, however, that in the absence of an obligation to give reasons,
the judge’s approach would substantially insulate a decision from review if no
party were to call the decision-maker or its members to give evidence as to their
actual decision-making process. It is clearly enough the case that the scope for
review will be diminished when compared with other classes of administrative
decision. However, as the primary judge observed, where no member of a SCAP
gives evidence, to infer that there is no good reason for the decision sits
uncomfortably with the complex decision-making process that SCAP must
undertake. That process involves a detailed evaluation of the weight to be ascribed
to the various relevant considerations in the DP in application to the development
proposal. It remains the case, as recognised in Upham v The Grand Hotel (SA) Pty
Ltd,62 that the Court must proceed on the basis of the material that was before the
planning authority and the decision the authority made.
183 Neither was it necessary for the minutes that SCAP was required to keep,
pursuant to the Regulations,63 to record the extent to which members of SCAP did
not accept the Agenda Report. As the judge observed, there is no reason why such
an obligation would not then extend to other reports. The consequence of such a
requirement would be to create an obligation to give a form of written reasons.
184 The one qualification to the lack of obligation to give reasons, and the impact
of that upon RJK’s argument on Ground 3, arose as an issue shortly prior to the
hearing of the appeal. RJK applied to adduce further evidence in the form of an
affidavit by their solicitor. The effect of this affidavit was that less than a week
before the appeal hearing, the Crown Solicitor, who acts for the Minister and
SCAP, as well as the Attorney-General as Interested Party, wrote to the parties
disclosing a document entitled State Commission Assessment Panel Practice and
Operating Directions, and advising that these directions were in operation at the
time of SCAP’s determination of the application.
185 The State Planning Commission determined these directions pursuant to
s 29(3)(a) of the Planning, Development and Infrastructure Act. SCAP was
required to observe them in the conduct of its business. The document was not in
evidence before the primary judge. Further correspondence between the parties
identified that it had not been published on the SA planning portal pursuant to
s 48(2) of that Act. The solicitors for RJK had not been aware of its existence until
receiving the correspondence from the Crown Solicitor’s Office.
186 RPA objected to the tender of this evidence. The Court received the affidavit
on a de bene esse basis. Relevantly, Clause 17.3 of the directions provided, in part:
62 (1999) 74 SASR 557 at [157].
63 Planning, Development and Infrastructure (General) Regulations 2017 (SA), reg 14.
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17.3 SCAP meeting minutes shall record:
…
17.3.6 If an application is approved, a short explanation as to why it was approved, and
relevant reserved matters and conditions;
17.3.7 If an application is refused, the reasons for refusal;
…
187 RJK did not seek to amend its grounds to complain that SCAP had not
complied with cl 17.3.6. They further acknowledged that the content of what is
required by cl 17.3.6 must be read in light of cl 17.3.7. The purpose of the tender,
in support of the present ground, was to identify that a short explanation was
required of SCAP on approving the application. They submitted that as the
explanation given reflected exactly the terms of the Agenda Report, as set out
above, the inference could be drawn more readily that SCAP relied on the Agenda
Report. They also sought to rely on this obligation in support of the complaint that
the consent decision lacked an evident and intelligible justification, in that had
there been such a justification, it would likely be reflected in the short explanation.
188 The Directions were relevant to the framework of analysis of RJK’s
complaints. There was a live question about whether RJK could have obtained
them with reasonable diligence. In PJ Nash Pty Ltd v Food and Beverage Australia
Ltd, this Court said:64
The Court may, in its discretion, accept fresh evidence on appeal. In doing so, the Court
must be satisfied the evidence could not, with reasonable diligence, have been obtained for
use at trial and, if the evidence had been available, it is reasonably clear that an opposite
outcome would have resulted.65 The ultimate test is whether it is in the interests of justice
to receive the fresh evidence. Public interest in the finality of litigation is also an important
consideration.66
(Footnotes in original)
189 There is force in the argument that RJK may not have been able to obtain
these directions with reasonable diligence before trial, given that they were neither
published nor disclosed. The reasons for that non-disclosure do not matter and
were not the subject of any directed complaint. However, I am not persuaded that
had the evidence of the directions been available, it was in prospect, let alone
‘reasonably clear’ that a different result would have resulted. In the absence of any
complaint that SCAP did not comply with its obligation to give a short explanation,
the existence of that obligation adds little to the substantive points made by RJK
as to the brevity of the explanation given and the fact that it reflected exactly the
recommendations in the Agenda Report. Neither, in my view, does it provide any
64 [2021] SASCA 86 at [66].
65 Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11 at [39]–[42].
66 Steicke v Pederick (2019) 134 SASR 114 at [7]; Viscariello v Livesey [2013] SASC 99 at [132].
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significant support to the complaint, considered above, that the consent decision
lacked an evident and intelligible justification. I would decline to receive the
further evidence.
190 This was not a case where the decision of the planning authority simply
mirrored the contents of a sole and erroneous report before it, and where the
decision-makers were not expert planners.67 Ultimately, the primary judge relied
on the following matters in declining to infer that SCAP reasoned simply in
accordance with the Agenda Report:68
SCAP had the benefit of the reports provided by Future Urban (for the
developer) and by Masterplan (for RJK) and was under a duty to consider
them;
SCAP is comprised of planning experts, who may be expected to exercise
independent judgment; and
the matters to be considered by SCAP were not confined to a single issue but
‘involved a wide range of discretionary judgments in relation to multiple
provisions of the DP, some of which tended to have a countervailing effect’.
191 The judge’s reasoning was orthodox. There is no basis for impugning it.
Having regard to the statutory framework of the decision-making obligation of
SCAP, there is no basis to infer that SCAP simply adopted the Agenda Report.
192 Ground 3 should be dismissed.
Whether the judge erroneously characterised the task of SCAP with respect
to the DP (Ground 4)
193 The judge described the task of SCAP as follows, in the context of
considering whether SCAP had failed to take into account relevant
considerations:69
The authorities make it abundantly clear that when determining an application for the grant
of provisional development plan consent a body such as SCAP is not constrained by the
development plan in the same manner, or to the same extent, as is generally the case with
an administrative decision-maker deciding an application for some form of approval under
a statutory provision. As the authorities to which I am about to refer indicate, a planning
authority exercises a broad discretion within the policy parameters set by the development
plan but in doing so must have proper regard to the relevant provisions of the plan.
194 RJK submitted that this paragraph erroneously characterised the approach as
a discretionary exercise having regard to the provisions of the DP. They referred
to the two statutory requirements of assessing the proposed development against
67 Cf. Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24; Rhylyn v District Council of
Willunga [1994] SASC 4919; Dunlop v Woollahra City Council [1975] 2 NSWLR 446.
68 [2022] SASC 11 at [402].
69 [2022] SASC 11 at [371].
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the DP (s 33(1)(a)) and assessing the extent to which the proposed development
was at variance with the DP (s 35(2)). They submitted that by characterising the
provisions as requiring the making of a planning judgment by discretionary
weighting of competing policy objectives in the DP, the judge did not focus on the
proper construction of the DP.
195 RJK’s characterisation of the above paragraph of the judge’s reasons is not
accurate. That paragraph is an unremarkable description of the task required by s
33(1)(a). As counsel for the interested party observed, this paragraph was followed
by various articulations in the relevant authorities of the task required by that
sub-section.70 The judge had elsewhere accurately characterised the two steps
required under the Act.71
196 RJK then complained that having characterised the task erroneously, the
judge failed to infer, by reference to the Agenda Report and the other material, that
SCAP had failed to take into account the DP, properly construed, as a whole, and
failed to assess the proposed development against certain provisions of the Plan.
197 In this regard, RJK had contended before the judge that SCAP was obliged,
but failed, to consider the ‘locality’, the ‘context that forms the positive character
of the locality’ (PDC 21), the desire expressed in Council Wide PDC 270 that the
development should provide a ‘transition and reasonable gradation’ from the CCZ
character to the characters desired by the CLZ and the Park Lands Zone, the extent
to which the proposed development was sympathetic to the anticipated city form,
and the various provisions addressing the interface between the CCZ, CLZ and
other boundary areas.
198 RJK’s written submissions went into considerable detail pointing to the
absence of discussion of these matters in the Agenda Report, the Future Urban
Report and the SCAP minutes. They then submitted that insofar as these matters
were addressed in the MasterPlan Report, this supported the argument, ‘because
plainly SCAP did not reason in accordance with that Report’.
199 There was an element of the dogmatic in this submission, reliant to a
significant degree on RJK’s complaints of construction and the complaint that
SCAP simply adopted the Agenda Report, which I have rejected. Otherwise, the
submission sought implicitly to draw leverage from the absence of reasons and
evidence of the SCAP meeting, for which there was no obligation.
200 Thus, as RPA accepted, the Agenda Report did not demarcate the ‘locality’
for the purposes of PDC 21. However, it does not follow that SCAP did not form
a view about the extent of the locality. SCAP members have planning expertise.
70 [2022] SASC 11 at [372]-[374], citing District Council of Munno Para v Remove-all Rubbish Co Pty
Ltd (1985) 41 SASR 188 at 201 (Jacobs J); City of Mitcham v Freckman (1999) 74 SASR 56 at [21]
(Debelle J, Doyle CJ and Duggan J agreeing); Town of Gawler v Impact Investment Corporation Pty
Ltd (2007) 99 SASR 115 at [27] (Doyle CJ); St Ann’s College v The Corporation of the City of Adelaide
[1999] SASC 479 at [16] (Debelle J).
71 [2022] SASC 11 at [235].
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The lack of evidence simply means that RJK did not discharge its onus to establish
that SCAP did not give consideration to the locality.
201 RJK then submitted that the proposed development was at odds with ‘the
open, low scale nature of the Park Lands part of the locality’, as contributing to the
conclusion that SCAP failed to consider how the development had regard to the
context that forms the positive character of the locality. As RPA submitted, this
submission did not take into account Council Wide Objective 46(a) and CCZ PDC
21(c)(i)(7). Further, the DP’s stipulation of Adelaide’s pattern of streets and
squares, within the Desired Character, includes the provision that ‘East Terrace
will be characterised by buildings that maximise views through to the Park Lands
and provide a distinct City edge’.
202 As to the invocation of Council Wide PDC 270, RPA submitted in response
that this provision is concerned with gradation and transition in character, not just
height. The Desired Character of the CCZ includes ‘medium and high density
living’. RPA submitted that placing residential development in the CCZ abutting
the CLZ assists with that gradation and transition in character.
203 There is a danger here of moving into the planning merits. To select various
provisions in the DP that may be said to speak against the merits of a proposed
development, in order to support an inference that SCAP did not take those
provisions into account, is fraught other than in clear cases. Other provisions may
provide nuance or qualification, or the construction of the provision itself may be
contestable.
204 The balance of the matters complained of in this vein, under this ground, go
either to the planning merits of the proposed development or depend on RJK’s
preferred construction of the DP, which I have rejected.
205 Finally, RJK complained under this ground that SCAP had reasoned in
accordance with an incorrect version of the Agenda Report, which had wrongly
reproduced an earlier version of the chapeau to CCZ PDC 21. The primary judge
dismissed the challenge because the text of the correct version was appended to
the Agenda Report, SCAP was provided with several documents containing the
correct version, and the Future Urban and MasterPlan Reports both examined and
expressed views on the correct version.72
206 This conclusion is unassailable. The challenge otherwise depends on RJK’s
unsuccessful contention that SCAP simply adopted the Agenda Report.
207 I would dismiss Ground 4.
72 [2022] SASC 11 at [508].
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Whether the judge failed to address and determine Ground 10 in the terms
pleaded and argued (Ground 5)
208 In its terms, Ground 5 alleges that the judge failed to consider or determine
Ground 10 of the application for judicial review ‘in the terms pleaded’, in that he
did not consider or determine whether:
a. to the extent, if at all, that it was concluded that the proposed building was
sympathetic to the anticipated city form expressed in Concept Plan Figures
CC/1 and 2, the decision lacked an evident justification (Ground 10.2);
b. to the extent, if at all, that it was concluded that the proposed building has
regard to the context that forms the positive character of the locality, the
decision lacked an evident justification (Ground 10.3);
c. the First Respondent erroneously proceeded on the basis that the proposal
‘achieved’ an orderly transition from ‘the park lands’ to the ‘Adelaide CBD
core’, or alternatively, up to an existing taller building or prescribed
maximum building height in an adjoining Zone or Policy Area (Ground
10.5); and
d. construction of the proposed development on the subject land was contrary
to the thrust of the DP and would prevent or frustrate the fulfilment of its
objectives for an orderly transition from the CLZ (to the east) to the buildings
in areas to the west where the maximum building height was 53 metres.
209 RJK did not develop this complaint at the hearing of the appeal, submitting
only that the ground was ‘self-explanatory’.
210 The judge set out the complaints in Ground 10.73 Having set out the principles
of unreasonableness, he continued:74
It is of fundamental importance in the present context that the principles expressed by the
Court of Appeal in Wednesbury and by the High Court in Li concerning the invalidity of
an administrative decision on the grounds of legal unreasonableness must be applied with
regard to the well-settled principles that apply to the application and interpretation of
development plans. Accordingly, the broad discretion exercisable by a planning authority
within the scope of a development plan must be properly recognised when determining
whether a decision made by such a body may be invalidated under the Wednesbury and Li
unreasonableness principle. I will not repeat what I have already said at [371] to [374] about
the broad planning discretion exercisable by SCAP but the nature and extent of that
discretion is of fundamental importance when considering the contentions advanced by
RJK in support of ground 10.
The earlier discussion in relation to the various contentions advanced in support of grounds
7 and 7A makes clear that it was open to SCAP to decide the application for DPC in the
exercise of its planning discretion. In other words, SCAP had to make an evaluative
judgment of the planning merits of the application in light of all the material placed before
73 [2022] SASC 11 at [536]-[539].
74 [2022] SASC 11 at [541]-[544].
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it, and not merely the Agenda Report, while having careful regard to the relevant provisions
of the DP.
It is not necessary to repeat the discussion of the competing considerations, or “pros” and
“cons”, that SCAP was required to balance in the exercise of its planning discretion. That
discussion makes clear that it was clearly open to SCAP to approve the proposed
development.
For that reason, I am satisfied that the decision of SCAP to approve the proposed
development did not lack an evident justification and was not unreasonable in the
Wendesbury or Li sense. I therefore dismiss ground 10 and each of the sub-grounds or
particulars, i.e. grounds 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6.
211 In these paragraphs, the judge made clear his reasons for dismissing the
grounds by referring back to his reasons in respect of earlier grounds. Indeed, the
challenges on the judicial review application, as on this appeal, overlapped
significantly. If RJK had a complaint that those earlier parts of the reasons, and the
discussions of the ‘pros’ and ‘cons’ therein were insufficient to explain the judge’s
conclusions with respect to Ground 10, then it was necessary to articulate that
complaint. Absent that, there is no reason to think that the judge failed to explain
his reasons for dismissing Ground 10.
212 I would dismiss Ground 5 of the appeal.
Conclusion
213 I would dismiss the appeal.
214 DAVID JA: I agree with the reasons of Bleby JA, and that the appeal should
be dismissed.
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APPENDIX
ADELAIDE (CITY) DEVELOPMENT PLAN
CONSOLIDATED AS AT 17 OCTOBER 2019
RELEVANT EXTRACTS
COUNCIL WIDE
OBJECTIVES
Objective 46: Reinforcement of the city’s grid pattern of streets through:
(a) high rise development framing city boulevards, the Squares and Park Lands
(b) vibrant main streets of a more intimate scale that help bring the city to life
(c) unique and interesting laneways that provide a sense of enclosure and
intimacy.
Objective 47: Buildings should be designed to:
(a) reinforce the desired character of the area as contemplated by the minimum
and maximum building heights in the Zone and Policy Area provisions;
(b) maintain a sense of openness to the sky and daylight to public spaces, open
space areas and existing buildings;
(c) contribute to pedestrian safety and comfort; and
(d) provide for a transition of building heights between Zone and Policy Areas
where building height guidelines differ.
Objective 48: Development which incorporates a high level of design excellence in
terms of scale, bulk, massing, materials, finishes, colours and
architectural treatment.
PRINCIPLES OF DEVELOPMENT CONTROL
9 The City Living Zone, Adelaide Historic (Conservation) Zone and North Adelaide
Historic (Conservation) Zone should develop as follows:
(a) Residential areas should comprise a wide range of housing alongside a
diversity of community facilities, with many heritage places conserved.
Residential amenity should be enhanced and attractive townscape qualities
reinforced.
(b) Adelaide was once a predominantly residential City. The character in the south
east corner continues to reflect this historical pattern with distinctive dwelling
types and earlyshops from the mid to late 19th century. This historic
importance is identified by the Adelaide Historic (Conservation) Zone within
which development should complement and protect the historic character. In
the south east and south west corners, groups of mid to late 19th housing
remain amidst development from the 20th century. This early housing is
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identified within Historic (Conservation) Areas where development should
complement and protect the historic character.
(c) North Adelaide is associated with the foundation of the City of Adelaide. It
retains many buildings and sites of State and Local Heritage value and
provides strong cultural and historic evidence of the creation of the colony,
the establishment of early settlement and the development of the capital city
over time. North Adelaide contains excellent examples of a diverse range of
residential architecture from all periods of the City's development, which
individually and as groups, reflect the periods of economic prosperity of the
City and the social composition of the colonial population. The remaining
historic housing is an essential and defining element of North Adelaide's
cultural value and is a microcosm of housing styles and periods in the State as
a whole. The historic value of the residential parts is such that they are
identified as the North Adelaide Historic (Conservation) Zone within which
development should complement and protect the historic character.
(d) The City Living Zone fronting South Terrace, and between Whitmore and
Hurtle Squares, is suited to medium density mixed use development,
accompanied by community and commercial activities. East Terrace is suited
to medium rise housing.
(e) The interface between established non-residential uses with neighbouring
residential properties should be effectively managed, recognising the
legitimate rights of commercial and community activities whilst protecting the
amenity of residents.
(f) Small scale, small size, ancillary businesses and activities which provide a
local service to residents may be appropriate provided compatible with the
desired character of the locality, does not result in the net loss of residential
floor space and do not threaten the envisaged development of non-residential
zones.
167 Where development significantly exceeds quantitative policy provisions, it should
demonstrate a significantly higher standard of design outcome in relation to
qualitative policy provisions including pedestrian and cyclist amenity, activation,
sustainability and public realm and streetscape contribution.
169 The height and scale of development and the type of land use should reflect and
respond to the role of the street it fronts as illustrated on Map Adel/1 (Overlay 1).
170 The height, scale and massing of buildings should reinforce:
(a) the desired character, built form, public environment and scale of the
streetscape as contemplated within the Zone and Policy Area, and have regard
to:
(i) maintaining consistent parapet lines, floor levels, height and massing
with existing buildings consistent with the areas desired character;
(ii) reflecting the prevailing pattern of visual sub-division of neighbouring
building frontages where frontages display a character pattern of
vertical and horizontal sub-divisions; and
(iii) avoiding massive unbroken facades.
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(b) a comfortable proportion of human scale at street level by:
(i) building ground level to the street frontage where zero set-backs
prevail;
(ii) breaking up the building facade into distinct elements;
(iii) incorporating art work and wall and window detailing; and
(iv) including attractive planting, seating and pedestrian shelter.
173 Development in a non-residential Zone that abuts land in a City Living Zone, the
Adelaide Historic (Conservation) Zone or the North Adelaide Historic
(Conservation) Zone, should provide a transition between high intensity
development and the lower intensity development in the adjacent Zone by focussing
taller elements away from the common Zone boundary.
174 Development in a non-residential Zone that is adjacent to land in the City Living
Zone, Adelaide Historic (Conservation) Zone or North Adelaide Historic
(Conservation) Zone should minimise overshadowing on sensitive uses by ensuring:
(a) north-facing windows to habitable rooms of existing dwellings in the City
Living Zone, Adelaide Historic (Conservation) Zone or North Adelaide
Historic (Conservation) Zone receive at least 3 hours of direct sunlight over a
portion of their surface between 9.00am and 3.00pm on 21 June;
(b) ground level open space of existing residential buildings in the City Living
Zone, Adelaide Historic (Conservation) Zone or North Adelaide Historic
(Conservation) Zone receive direct sunlight for a minimum of 2 hours between
9.00am and 3.00pm on 21 June to at least the smaller of the following:
(i) half of the existing ground level open space;
(ii) 35 square metres of the existing ground level open space (with at least
one of the area’s dimensions measuring 2.5 metres).
191 New development on major corner sites should define and reinforce the townscape
importance of these sites with appropriately scaled buildings that:
(a) establish an architectural form on the corner;
(b) abut the street frontage; and
(c) address all street frontages.
270 Development located either abutting, straddling or within 20 metres of a Zone or
Policy Area boundary should provide for a transition and reasonable gradation from
the character desired from one to the other.
CITY LIVING ZONE
Introduction
The objective and principles of development control that follow apply in the City Living
Zone shown in Maps Adel/20, 23 to 26 and 29 to 33. They are additional to those expressed
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for the whole of the Council area and in cases of apparent conflict, take precedence over
the more general provisions. In the assessment of development, the greatest weight is to be
applied to satisfying the desired character for the Zone.
DESIRED CHARACTER
The Zone is spread across the southern half of Adelaide, flanked to the north by the City’s
central business area. Mixed use apartment and commercial corridors frame much of the
southern and western margins of the Zone which is also bisected by the Hutt Street main
street strip, and corridors of core business areas centred on the Squares and the City’s main
north-south axis roads, Morphett, King William and Pulteney Streets.
The Zone comprises Adelaide’s main residential living districts which have developed with
a range of stand-alone and paired cottages, terrace or row housing, and low to medium scale
contemporary apartment buildings, and with remnant workshops, service trades, offices
and mixed uses, particularly west of Hutt Street.
The City Living Zone will provide high amenity residential living environments along with
related nonresidential uses compatible with residential amenity, as articulated in the Policy
Areas. Carefully executed high quality residential infill is envisaged and opportunities are
presented for comprehensive redevelopment on larger, particularly non-residential sites,
and also on catalyst sites fronting South Terrace and East Terrace. The desired increase in
the City’s resident population relies, in part, on realising infill housing opportunities with
high regard to their context and achieving overall, higher dwelling densities in this Zone.
OBJECTIVES
Objective 1: A Zone comprising a range of dwelling types and tenures, including
affordable housing.
Objective 2: Increased dwelling densities in appropriate locations.
Objective 3: Non-residential activities that support city living and amenity with
minimal impact on the environmental quality or amenity of living
conditions.
Objective 4: Development having regard to the potential impacts of building height
and activities from land in the adjoining zones
PRINCIPLES OF DEVELOPMENT CONTROL
3 Non-residential land uses should be limited to land lawfully used for non-residential
purposes and should comprise land uses more in conformity with the intended
residential amenity, except where envisaged in the relevant Policy Area. Non-
residential land uses should be of a scale and role to not prejudice the envisaged
development of non-residential zones.
East Terrace Policy Area 29
Introduction
The desired character, objectives and principles of development control that follow apply
to the Policy Area as shown on Maps Adel/51, 57 and 63. They are additional to those
expressed for the Zone and in cases of apparent conflict, take precedence over the Zone
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provisions. In the assessment of development, the greatest weight is to be applied to
satisfying the desired character for the Policy Area.
DESIRED CHARACTER
The Policy Area will be developed in a manner which reinforces the existing character of
grand buildings set on attractive, landscaped grounds in a Park Lands edge setting.
Development will continue to provide a high level of amenity and with a mix of residential
dwelling types and styles, including the continued development of residential flat buildings
which are complementary in design to the many State and Local Heritage Places. Wakefield
Street will continue to provide a mix of uses, either wholly residential or non-residential
land uses on lower levels with residential at upper levels.
Development will continue to provide for substantial, high quality landscaped open spaces
in order to frame East Terrace and provide a distinct edge to the City. Private properties
will be defined by formal fencing which allows for views to, and an appreciation of, the
distinctive garden setting and spacious character at-ground underpinned by the rhythm of
front and side boundary setbacks.
Buildings will be massed vertically or comprise narrow frontage elements with generous
front and side setbacks with building façades that are well articulated with finer details that
contribute positively to the public realm and residential character.
Vehicle movement will be primarily for local and visitor traffic, although East Terrace will
continue to act as a strong pedestrian and cyclist link between the City and the Park Lands.
Catalyst sites provide opportunities for integrated developments on large sites that respond
to the development’s context and provide opportunities to increase the residential
population of the City. Such sites will generally be developed for housing, but may include
a small amount of non-residential development such as cafés, restaurants or small-scale
shops that create a greater level of activity fronting the Park Lands. Non-residential
developments that provide additional community services and facilities may also occur.
Developments on catalyst sites will exemplify quality contemporary design that is
generally of greater intensity than their surroundings. However, development will be
designed to carefully manage the interface with any residential development, particularly
with regard to massing; proportions; overshadowing; and traffic and noise-related impacts.
PRINCIPLES OF DEVELOPMENT CONTROL
8 Development should not exceed 4 storeys or 14 metres building height except where
one of the following applies:
(a) on sites greater than 1500 square metres in area (which may include one or
more allotment); or
(b) within the areas indicates on policy area Maps Adel/51, 57 and 63 where
development should not exceed 2 storeys.
Catalyst Sites
10 Development on catalyst sites (sites greater than 1500 square metres, which may
include one or more allotment) should include medium to high scale residential
development.
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11 Small-scale shops, cafés or restaurants on catalyst sites should generally be
integrated with residential development and located at ground or first floor level to
increase street level activity facing the Park Lands.
12 Catalyst sites should be developed to manage the interface with residential
development with regard to intensity of use, overshadowing, massing, building
proportions and traffic to minimise impacts on residential amenity.
13 Parts of a development on a catalyst site that exceed the prescribed maximum
building height that applies to non-catalyst sites in the Policy Area, and that are
directly adjacent to the Adelaide Historic (Conservation) Zone boundary should be
designed to minimise visual impacts on sensitive uses in the adjoining zones and to
maintain the established or desired future character of the area. This may be achieved
through a number of techniques such as additional setback, avoiding tall sheer walls,
centrally locating taller elements, providing variation of light and shadow through
articulation to provide a sense of depth and create visual interest, and the like.
14 The scale of development on a catalyst site should respond to its context, particularly
the nature of the adjacent land uses and the interface treatments required to address
impacts on sensitive uses.
15 Where there is an apparent conflict between the catalyst site principles and Zone,
Policy Area or Council Wide objectives and principles (including the quantitative
provisions) the catalyst site principles will take precedence.
CAPITAL CITY ZONE
Introduction
The Desired Character, Objectives and Principles of Development Control that follow
apply in the whole of the Capital City Zone shown on Maps Adel/17 to 20, 23 to 26 and 29
to 31. They are additional to those expressed for the whole of the Council area and in cases
of apparent conflict, take precedence over the more general provisions. In the assessment
of development, the greatest weight is to be applied to satisfying the Desired Character for
the Zone.
DESIRED CHARACTER
This Zone is the economic and cultural focus of the State and includes a range of
employment, community, educational, tourism and entertainment facilities. It is anticipated
that an increased population within the Zone will complement the range of opportunities
and experiences provided in the City and increase its vibrancy.
The Zone will be active during the day, evening and late night. Licensed entertainment
premises, nightclubs and bars are encouraged throughout the Zone, particularly where they
are located above or below ground floor level to maintain street level activation during the
day and evening.
High-scale development is envisaged in the Zone with high street walls that frame the
streets. However an interesting pedestrian environment and human scale will be created at
ground floor levels through careful building articulation and fenestration, frequent
openings in building façades, verandahs, balconies, awnings and other features that provide
weather protection.
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In important pedestrian areas, buildings will be set back at higher levels above the street
wall to provide views to the sky and create a comfortable pedestrian environment. In
narrow streets and laneways the street setback above the street wall may be relatively
shallow or non-existent to create intimate spaces through a greater sense of enclosure. In
the Central Business Policy Areas, upper level setbacks are not envisaged.
Non-residential land uses at ground floor level that generate high levels of pedestrian
activity such as shops, cafés and restaurants will occur throughout the Zone. Within the
Central Business Policy Area, residential land uses at ground level are discouraged. At
ground level, development will continue to provide visual interest after hours by being well
lit and having no external shutters. Non-residential and / or residential land uses will face
the street at the first floor level to contribute to street vibrancy.
New development will achieve high design quality by being:
(a) Contextual – so that it responds to its surroundings, recognises and carefully
considers the adjacent built form, and positively contributes to the character of the
immediate area.
(b) Durable – by being fit for purpose, adaptable and long lasting, and carefully
considers the existing development around it.
(c) Inclusive – by integrating landscape design to optimize pedestrian and cyclist
usability, privacy, and equitable access, and also promote the provision of quality
spaces integrated with the public realm that can be used for access and recreation
and help optimize security and safety both internally and into the public realm, for
occupants and visitors alike.
(d) Sustainable – by integrating sustainable systems into new buildings and the
surrounding landscape design to improve environmental performance and minimise
energy consumption.
(e) Amenable – by providing natural light and ventilation to habitable spaces.
Contemporary juxtapositions will provide new settings for heritage places. Innovative
design is expected in areas of identified street character with an emphasis on contemporary
architecture that responds to site context and broader streetscape, while supporting optimal
site development. The addition of height, bulk and massing of new form should be given
due consideration in the wider context of the proposed development
There will also be a rich display of art that is accessible to the public and contextually
relevant.
OBJECTIVES
Objective 1: The principal focus for the economic, social and political life of
metropolitan Adelaide and the State.
Objective 2: A vibrant mix of commercial, retail, professional services, hospitality,
entertainment, educational facilities, and medium and high density
living.
Objective 3: Design and management of City living to ensure the compatibility of
residential amenity with the essential commercial and leisure functions
of the Zone.
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Objective 4: City streets that provide a comfortable pedestrian environment.
Objective 5: Innovative design approaches and contemporary architecture that
respond to a building’s context.
Objective 6: Buildings that reinforce the gridded layout of Adelaide’s streets and
respond to the underlying built-form framework of the City.
Objective 7: Large sites developed to their full potential while ensuring a cohesive
scale of development and responding to a building’s context.
Objective 8: Development that contributes to the Desired Character of the Zone
PRINCIPLES OF DEVELOPMENT CONTROL
16 Development that exceeds the maximum building height shown in Concept Plan
Figures CC/1 and 2, and meets the relevant quantitative provisions should
demonstrate a significantly higher standard of design outcome in relation to
qualitative policy provisions including site configuration that acknowledges and
responds to the desired future character of an area but that also responds to adjacent
conditions (including any special qualities of a locality), pedestrian and cyclist
amenity, activation, sustainability, and public realm and streetscape contribution.
21 Development should not exceed the maximum building height shown in Concept
Plan Figures CC/1 and 2 unless, notwithstanding its height, it has regard to the
context that forms the positive character of the locality and is sympathetic to the
desired character of the Zone or Policy Area and the anticipated city form expressed
in Concept Plan Figures CC/1 and 2, and
(a) if the development incorporates the retention, conservation and reuse of a
building which is a listed heritage place or an existing built form and fabric
that contributes positively to the character of the local area; or
(b) more than 15% of dwellings are affordable housing; or
(c) only if:
(i) at least three of the following are provided:
(1) the development provides an orderly transition up to an existing
taller building or prescribed maximum building height in an
adjacent Zone, Policy Area or building height area on Concept
Plan Figures CC/1 and 2;
(2) high quality open space that is universally accessible and is
directly connected to, and well integrated with, public realm
areas of the street;
(3) high quality, safe and secure, universally accessible pedestrian
linkages that connect through the development site;
(4) no on site car parking is provided;
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(5) active uses are located on at least 75% of the public street
frontages of the building, with any above ground car parking
located behind;
(6) a range of dwelling types that includes at least 10% of 3+
bedroom apartments;
(7) the building is adjacent to the Park Lands;
(8) the impact on adjacent properties is no greater than a building of
the maximum height on Concept Plan Figures CC/1 and 2 in
relation to sunlight access and overlooking; and
(ii) at least three of the following sustainable design measures are provided:
(1) a communal useable garden integrated with the design of the
building that covers the majority of a rooftop area supported by
services that ensure ongoing maintenance;
(2) living landscaped vertical surfaces of at least 50 square metres
supported by services that ensure ongoing maintenance;
(3) passive heating and cooling design elements including solar
shading integrated into the building;
(4) higher amenity through provision of private open space in excess
of minimum requirements by 25% for at least 50% of dwellings;
(5) solar photovoltaic cells on the majority of the available roof area,
supported by services that ensure ongoing maintenance.
22 Development should have optimal height and floor space yields to take advantage of
the premium City location and should have a building height no less than half the
maximum shown on Concept Plan Figures CC/1 and 2, or 28 metres in the Central
Business Policy Area, except where one or more of the following applies:
(a) a lower building height is necessary to achieve compliance with the
Commonwealth Airports (Protection of Airspace) Regulations;
(b) the site is adjacent to the City Living Zone or the Adelaide Historic
(Conservation) Zone and a lesser building height is required to manage the
interface with low-rise residential development;
(c) the site is adjacent to a heritage place, or includes a heritage place;
(d) the development includes the construction of a building in the same, or
substantially the same, position as a building which was demolished, as a
result of significant damage caused by an event, within the previous 3 years
where the new building has the same, or substantially the same, layout and
external appearance as the previous building.
23 Development should manage the interface with the City Living Zone or the Adelaide
Historic (Conservation) Zone in relation to building height, overshadowing,
massing, building proportions and traffic impacts and should avoid land uses, or
intensity of land uses, that adversely affect residential amenity.
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25 Parts of a development that exceed the prescribed maximum building height shown
on Concept Plan Figures CC/1 and 2 that are directly adjacent to the City Living,
Main Street (Adelaide) or the Adelaide Historic (Conservation) Zone boundaries
should be designed to minimise visual impacts on sensitive uses in the adjoining
zones and to maintain the established or desired future character of the area. This
may be achieved through a number of techniques such as additional setback,
avoiding tall sheer walls, centrally locating taller elements, providing variation of
light and shadow through articulation to provide a sense of depth and create visual
interest, and the like.
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