ADELAIDE HILLS v PHILLIP JOSEPH PARKINS [2023] SASCA 66

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (COMMISSIONER DYER) [2022] SAERDC 12 Appellant: ADELAIDE HILLS COUNSEL ASSESSMENT MANAGER Counsel: MR S HENRY KC WITH MR P PSALTIS - Solicitor: NORMAN WATERHOUSE First Respondent: PHILLIP JOSEPH PARKINS Counsel: MR M RODER KC WITH MR J RODER - Solicitor: BOTTEN LEVINSON LAWYERS Second Respondent: RENEE LORRAINE PARKINS Counsel: MR M RODER KC WITH MR J RODER - Solicitor: BOTTEN LEVINSON LAWYERS Hearing Date/s: 14/02/2023 File No/s: CIV-22-009310 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. ADELAIDE HILLS COUNCIL ASSESSMENT MANAGER v PARKINS & ANOR [2023] SASCA 66 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby) 15 June 2023 ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - SUBDIVISION APPROVALS ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL - CONSIDERATION OF PLANNING SCHEME ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - EXISTING USES - DEVELOPMENT APPLICATIONS WHERE SUBSISTING EXISTING USE RIGHTS ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - POWERS ON APPEAL Appeal from a decision of a Commissioner of the Environment, Resources and Development Court. The respondents are the registered proprietors of land at 16 Glenside Road, Crafers. The land is held as a single allotment, being Allotment (‘Lot 85’). On 8 July 2021, they applied for development authorisation pursuant to the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’) to subdivide the land. -- 1 of 39 -- Lot 85 contains two separate dwellings. Closer to the Glenside Road frontage is a building constructed in the 1970s (‘Dwelling 1’). Dwelling 1 uses an existing driveway and crossover that abuts the southern boundary. It is set approximately 9.5 metres from the front (eastern) boundary with Glenside Road. It has approximately 190 m² of living area, an attached single garage, veranda and decking. It is the larger of the two buildings. It effectively sits on the ‘handle’ of the battle axe shape of Lot 85, fronting east onto Glenside Road. The smaller dwelling (‘Dwelling 2’) was constructed in 1954. It is located approximately 15 metres to the rear (west) of Dwelling 1, where the rectangular ‘handle’ meets the pentagonal ‘axe’ of the battle-axe shape. The two dwellings are separated by a retaining wall. Dwelling 2 has approximately 67 m² of living area with an attached veranda. It uses a separate existing driveway and crossover which runs along the northern boundary of the handle. That driveway also provides access to a shed/garage at the rear of Dwelling 1. Dwelling 2 is not visible from Glenside Road. The dwellings are serviced separately, with two water and electrical connections to the land. The respondent applied to divide Lot 85 into two new allotments, proposed allotment 21 (‘Lot 21’) and proposed allotment 22 (‘Lot 22’). Lot 22 was to have an area of 1,114m² and a frontage of 31.26m. Lot 22 would comprise a rectangle that incorporated Dwelling 1, the larger building. Lot 21, comprised mostly of the ‘axe’, would have an area of 4,745m². It would have an eastern frontage on Glenside Road of 6.13m. That frontage would comprise the access to a corridor for the existing driveway along the northern boundary of the ‘handle’. Dwelling 2 would be situated in the south-eastern corner of Lot 21. On 7 October 2021, the appellant, as the relevant authority, refused the application. The appellant’s reasons for refusing the application were broadly to the effect that the proposed development was not sympathetic to the established pattern of division surrounding the development site or the character and amenity of the locality, having regard to the sizes and configurations of the proposed allotments. The respondents appealed against this decision. On 1 August 2022, a Commissioner of the ERD Court allowed the appeal. The Notice of Appeal now raises 19 grounds. These grounds can be broadly divided into two categories, concerning: • whether the Commissioner erroneously treated Dwelling 2 as being subject to an existing use right by which it could lawfully be occupied separately as an independent residential dwelling (Grounds 1-7 and 9-12); and • the Commissioner’s reasoning that the grant of consent was appropriate, particularly in the circumstances of lot size and frontage (Grounds 14-19). By a Notice of Alternative Contention, the respondents contend that: • the Commissioner should have found that if the proposed development encompassed a departure from a clearly expressed policy in the Planning and Design Code (‘Code’), the departure was justified for the reasons set out at paragraph [81] of Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; and • the appellant should not be permitted to advance a new case on appeal, namely that each dwelling did not have existing use rights as an independent dwelling. Held, per Bleby JA (Livesey P and Doyle JA agreeing), dismissing the appeal and the Notice of Alternative Contention: 1. The Commissioner did not erroneously treat Dwelling 2 as being subject to an existing use right by which it could lawfully be occupied separately as an independent residential dwelling. -- 2 of 39 -- a. Notwithstanding that this was not a case requiring pleadings, the issues were sufficiently defined, and a critical concession made, such that it was not necessary for the respondents to lead evidence establishing that Dwelling 2 had independent use rights. 2. With respect to the issues of allotment size and frontage: a. There is no basis to conclude that the Commissioner applied Zone DO 1 as a separate planning policy, independent of the related performance outcomes. She used Zone DO 1 to inform her consideration of the application of the relevant performance outcomes, as contemplated by the Rules of Interpretation in Part 1 of the Code. b. While the Commissioner’s treatment of the frontage was brief, she took it into account. She paid express regard to both the frontage of Lot 21 and the 20m guidance provided by Zone DPF 8.1(c). c. The appellant has not demonstrated that the Commissioner misconstrued the Code with respect to her conclusion that an allotment of 1,114m² was consistent to the locality. The complaint is nothing more than a complaint about the planning judgment exercised by the Commissioner. d. While the Commissioner’s consideration of the separate allotments was brief, she adequately addressed the question of the established pattern of division. e. The Commissioner had regard to the question of precedent, in a context appropriate to the way in which the matter was argued. She reached these conclusions in the ordinary discharge of her planning judgment. 3. In circumstances where his Honour would dismiss the appeal, it is not necessary to determine the Notice of Alternative Contention. Development Act 1993 (SA) s 35; Planning Act 1982 (SA); Planning Development and Infrastructure Act 2016 (SA) ss 3(1), 4, 65, 66, 101, 102, 103, 107, 202(1)(b), 205; Planning, Development and Infrastructure (General) Regulations 2017 (SA), referred to. City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294; City of Charles Sturt v Hatch [1999] SASC 523; City of Mitcham v Fusco & Anor (2002) 124 LGERA 196; Eliza Jane Investments Pty Ltd v City of Playford (2009) 168 LGERA 321; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Lacey v Burnside [2009] SASC 136; Landmark Operations Limited v J Tiver Nominees Pty Ltd [2009] SASC 185; Parkins v Adelaide Hills Council Assessment Manager [2022] SAERDC 12; Prestige Car Sales Pty Ltd v Walkerville Town Corporation (1979) 20 SASR 514; Stewart v McQuade [1997] SASC 6170; The Oaks Hotels & Resorts Pty Ltd v City of Holdfast Bay [2010] SAERDC 16; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Water Board v Moustakas (1988) 180 CLR 491, considered. -- 3 of 39 -- -- 4 of 39 -- ADELAIDE HILLS COUNCIL ASSESSMENT MANAGER v PARKINS & ANOR [2023] SASCA 66 Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA 1 LIVESEY P: I agree with the reasons of Bleby JA. 2 DOYLE JA: I agree with the reasons of Bleby JA. 3 BLEBY JA: This appeal from a decision of a Commissioner of the Environment, Resources and Development Court (‘ERD Court’) raises various issues of construction and application of the Planning and Design Code (‘Code’), which is implemented under the Planning, Development and Infrastructure Act 2016 (SA) (‘PDI Act’). It also raises issues of the onus and sufficiency of proof of existing use rights of a building on a development application, and the scope for advancing a new case on appeal. The application for development authorisation and appeal 4 The respondents are the registered proprietors of land at 16 Glenside Road, Crafers. The land is held as a single allotment, being Allotment 85 Filed Plan 158431 (‘Lot 85’). On 8 July 2021, they applied for development authorisation pursuant to the PDI Act to subdivide the land. 5 The appellant was the relevant authority. On 7 October 2021, it refused the application. Its reasons identified certain provisions of the Adelaide Hills Subzone and Rural Neighbourhood Zone provisions, the Hazards (Bushfire – Medium Risk) Overlay and the General Development Policies of the Code. By reference to those provisions and policies, the appellant’s reasons for refusing the application were broadly to the effect that the proposed development was not sympathetic to the established pattern of division surrounding the development site or the character and amenity of the locality, having regard to the sizes and configurations of the proposed allotments. 6 The respondents appealed against this decision. On 1 August 2022, a Commissioner of the ERD Court allowed the appeal. The Commissioner held:1 Having regard to the relevant Code provisions and the specific circumstances of the subject land, the division of land as proposed is not considered to be inconsistent with and indeed contributes to, the established pattern of division and development within the locality. It does not increase residential development. Each allotment is demonstrably suitable for its intended purpose. Servicing is achieved, and access points, landscaping and the streetscape remain unchanged. The proposed division is not evident from the street and overall, the character and amenity of the locality is retained. 7 This is the authority’s appeal against that decision. 1 [2022] SAERDC 12 at [138]. -- 5 of 39 -- [2023] SASCA 66 Bleby JA 2 The subject land 8 Lot 85 is located in a semi-rural residential area on the edge of Crafers township. It has an area of 5,859m². It is irregular in shape. It has an eastern frontage on Glenside Road of 37.39m. At about 56m west of that frontage, the northern boundary turns to the north-west. It eventually then turns to the south-west and meets with the western boundary. The effect is to create a sizeable projection to the north, at the rear of the allotment. That projection sits behind allotments that front Glenside and Woodbury Roads. Lot 85 thereby forms what is commonly described as a ‘battle-axe’ shape. 9 The southern boundary features a dogleg to the north, 50m west from the Glenside Road frontage. This narrows the width of the allotment. Consequently, the depth and width of Lot 85 vary. 10 These irregularities notionally allow the allotment to be divided into a near rectangular section abutting the street frontage (the handle of the battle axe shape) and an irregular, pentagonal section to the rear, extending to the west and north (the axe). 11 The allotment is heavily vegetated with small shrubs to well-established trees. The established and notable vegetation is concentrated within the northern rear flank of the land, located within proposed Lot 22 (discussed below). The vegetation obscures views of the land from Glenside Road. 12 The land slopes away from the Glenside Road frontage, towards the northwest of the land to a dam within a property to the rear. The front section of the land is generally flat grading downwards to both the west and the north, with an approximately eight per cent slope east to west across the rear portion. 13 The land contains an easement to the Minster for Infrastructure along the northern boundary. The easement contains sewerage infrastructure. The dwellings 14 Lot 85 contains, relevantly, two separate dwellings. Closer to the Glenside Road frontage is a building constructed in the 1970s (‘Dwelling 1’). Dwelling 1 uses an existing driveway and crossover that abuts the southern boundary. It is set approximately 9.5 metres from the front (eastern) boundary with Glenside Road. It has approximately 190 m² of living area, an attached single garage, veranda and decking. It is the larger of the two buildings. It effectively sits on the ‘handle’ of the battle axe shape of Lot 85, fronting east onto Glenside Road. 15 The smaller dwelling (‘Dwelling 2’) was constructed in 1954. It is located approximately 15 metres to the rear (west) of Dwelling 1, where the rectangular ‘handle’ meets the pentagonal ‘axe’ of the battle-axe shape. The two dwellings are separated by a retaining wall. -- 6 of 39 -- [2023] SASCA 66 Bleby JA 3 16 Dwelling 2 has approximately 67 m² of living area with an attached veranda. It uses a separate existing driveway and crossover which runs along the northern boundary of the handle. That driveway also provides access to a shed/garage at the rear of Dwelling 1. Dwelling 2 is not visible from Glenside Road. 17 The dwellings are serviced separately, with two water and electrical connections to the land. The proposed subdivision 18 The respondent applied to divide Lot 85 into two new allotments, proposed allotment 21 (‘Lot 21’) and proposed allotment 22 (‘Lot 22’). Lot 22 was to have an area of 1,114m² and a frontage of 31.26m. That is, it would assume most of the existing Glenside Road frontage of Lot 85. It would also assume the southern boundary of the ‘handle’ of Lot 85. Its northern boundary would run 6.13m to the south of the northern boundary of the existing Lot 85. Its rear, western boundary would separate Dwelling 2 from Dwelling 1. Lot 22 would thereby comprise a rectangle that incorporated Dwelling 1, the larger building. 19 The effect of dividing Lot 85 in this way, so that Lot 22 comprises most of the ‘handle’ of existing Lot 85, would then also be to create a separate allotment, Lot 21, comprised mostly of the ‘axe’. Lot 21 would have an area of 4,745m². It would have an eastern frontage on Glenside Road of 6.13m. That frontage would comprise the access to a corridor for the existing driveway along the northern boundary of the ‘handle’. Where that corridor passes the rear, western boundary of Lot 22, Lot 21 would then open out to the north, west and south (behind Dwelling 1) into a large, pentagonal hinterland. This incorporates the north-western area of the existing Lot 85 that contains the established vegetation, described above. Dwelling 2 would be situated in the south-eastern corner of Lot 21. The issues arising on appeal 20 The Notice of Appeal raises 19 grounds. These grounds can be broadly divided into two categories, concerning: • whether the Commissioner erroneously treated Dwelling 2 as being subject to an existing use right by which it could lawfully be occupied separately as an independent residential dwelling (Grounds 1-7 and 9-12); and • the Commissioner’s reasoning that the grant of consent was appropriate, particularly in the circumstances of lot size and frontage (Grounds 14-19). 21 By a Notice of Alternative Contention, the respondents contend that: • the Commissioner should have found that if the proposed development encompassed a departure from a clearly expressed policy in the Code, the -- 7 of 39 -- [2023] SASCA 66 Bleby JA 4 departure was justified for the reasons set out at paragraph [81] of Town of Gawler v Impact Investment Corporation Pty Ltd;2 and • the appellant should not be permitted to advance a new case on appeal, namely that each dwelling did not have existing use rights as an independent dwelling. 22 It was not necessary for the Notice to include the second of these contentions. It is open for the respondents to make this contention in any event. The statutory and planning code framework 23 The PDI Act regulates ‘development’. Section 3(1) defines ‘development’ as, in addition to other items, ‘the division of allotment’, which is further defined in four parts: division of an allotment means— (a) the division, subdivision or resubdivision of the allotment (including by community plan under the Community Titles Act 1996 and by strata plan under the Strata Titles Act 1988); or (b) the alteration of the boundaries of an allotment; or (c) the conferral or exercise of a present right to occupy part only of an allotment under a lease or licence, or an agreement for a lease or licence, the term of which exceeds 6 years or such longer term as may be prescribed, or in respect of which a right or option of renewal or extension exists so that the lease, licence or agreement may operate by virtue of renewal or extension for a total period exceeding 6 years or such longer period as may be prescribed, but does not include a lease, licence or agreement of a class excluded from the ambit of this paragraph by the regulations; or (d) the grant or acceptance of a lease or licence, or the making of an agreement for a lease or licence, of a class prescribed by the regulations, and to divide has a corresponding meaning; 24 Lot 85 is an allotment for the purposes of the Act. The respondents’ proposal was for the division of Lot 85 and therefore is a development. 25 Section 101 of the PDI Act provides that development must be an approved development. Section 102 sets out the matters against which a relevant authority must assess the development, and includes the following: 102—Matters against which development must be assessed (1) Subject to this Act, a development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in 2 (2007) 99 SASR 115. -- 8 of 39 -- [2023] SASCA 66 Bleby JA 5 respect of, each of the following matters (insofar as they are relevant to the particular development): (a) — (i) the relevant provisions of the Planning Rules; and (ii) to the extent provided by Part 7 Division 2—the impacts of the development, (planning consent); (b) the relevant provisions of the Building Rules (building consent); (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) requirements set out in the Planning and Design Code made for the purposes of this provision are satisfied; (ii) any relevant requirements set out in a design standard has been satisfied; (iii) 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; (iv) 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; … 26 The development in the present case was required to be assessed against the relevant provisions of the Planning Rules, the impacts of the development to the extent provided for by Part 7 Division 2 and, as a proposed division of land, against the requirements set out in the Code. 27 Section 3(1) defines ‘Planning Rules’ to include the Code. The Code is established pursuant to s 65. Its content and key provisions are governed by s 66. The Code sets out a comprehensive set of policies, rules and classifications to be selected and applied in various parts of the State.3 28 Section 103 of the PDI Act divides development into three categories for the purposes of assessment in relation to planning consent. These categories are ‘accepted development’, ‘code assessed development’, and ‘impact assessed 3 Planning Development and Infrastructure Act 2016 (SA), s 66(1). -- 9 of 39 -- [2023] SASCA 66 Bleby JA 6 development’. Each category is the subject of a separate subdivision of Part 7, Division 2. 29 The development proposal in the present is a ‘code assessed development’. Pursuant to s 107, it falls within a sub-category of ‘code assessed development’, being ‘performance assessed development’. That refers to a code assessed development that is not a ‘deemed-to-satisfy development’ within the meaning of s 105(a). Section 107(1) requires a performance assessed development to be assessed on its merits against the Code. 30 Section 107(2) provides: (2) In connection with subsection (1)— (a) to the extent that 1 or more elements of the proposed development may be classified as deemed-to-satisfy under the Planning and Design Code (if any)— that part of the development will be taken to have been granted planning consent; and (b) to the extent that paragraph (a) does not apply (including on the basis that that paragraph does not apply at all)—the development will be assessed on its merits against the Planning and Design Code; and (c) to the extent that paragraph (b) applies—the development must not be granted planning consent if it is, in the opinion of the relevant authority, seriously at variance with the Planning and Design Code (disregarding minor variations). 31 The operative version of Code at the time of the respondent’s application was Version 2021.8, which was current between 1 July 2021 and 14 July 2021. 32 The Code is applied in the manner established in the rules set out in Part 1 – Rules of Interpretation (‘Rules’). With respect to performance assessed development, the Rules provide: Application of Policies to Performance Assessed Classes of Development The Code applies policies to performance assessed development through an Applicable Policies for Performance Assessed Development Table relative to each zone - Table 3. In particular, for each zone, Table 3 specifies the polices [sic] and rules that apply to classes of development within the zone, including by the application of policies within subzones and overlays (applies only in the area affected by the subzone/overlay), together with the relevant general development policies. Table 3 also contains rules for application of the policies, including rules relating to the application of Desired Outcome policies and Designated Performance Features. The policies specified in Table 3 constitute the policies applicable to the particular class of development within the zone to the exclusion of all other policies within the Code, and no other policies are applicable. Development that does not fall within one of the specified classes of development in Table 3 will be designated in the table as "All Other Code Assessed Development". To assess such development, all policies from the zone and subzone, and all policies in overlays that -- 10 of 39 -- [2023] SASCA 66 Bleby JA 7 have application to the spatial location of the development, and all general development policies, apply for the purpose of assessment. For the purposes of section 102 of the Act, the relevant authority must assess the development against the applicable policies specified by Table 3 that are relevant to the particular development. For the avoidance of doubt, the relevant authority may determine that one or more of the listed policies are not relevant to a particular development. 33 The Code provides planning consent assessment policies at different conceptual levels, which can be described as ‘zone’, ‘sub-zone’, ‘overlay’ and ‘general’. A zone is a geographical area in which planning consent policies are stipulated by the Code. A sub-zone is a discrete area within a zone, in which additional or different policies may apply. An overlay provides policies with respect to particular types of development, topics or issues, which are applied to particular geographic areas that do not necessarily correspond to zone boundaries. General policies apply to particular types of development, topics or issues. 34 The Code then breaks these policy conceptions down further, specifically by reference to desired outcomes (‘DO’) and performance outcomes (‘PO’). The explanations of these concepts in the Rules of Interpretation in the Code are not particularly easy to follow. They provide as follows: Policies – Desired Outcomes and Performance Outcomes Zone, subzone, overlay and general development policies are comprised of desired outcomes (DOs) and performance outcomes (POs). These are applicable to performance assessed development and to restricted development. Desired Outcomes Desired outcome are policies designed to aid the interpretation of performance outcomes by setting a general policy agenda for a zone, subzone, overlay or general development policies module. Where a relevant authority is uncertain as to whether or how a performance outcome applies to a development, the desired outcome(s) may inform its consideration of the relevance and application of a performance outcome, or assist in assessing the merits of the development against the applicable performance outcomes collectively. Performance Outcomes Performance outcomes are policies designed to facilitate assessment according to specified factors, including land use, site dimensions and land division, built form, character and hazard risk minimisation. Designated performance features In order to assist a relevant authority to interpret the performance outcomes, in some cases the policy includes a standard outcome which will generally meet the corresponding performance outcome (a designated performance feature or DPF). A DPF provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome, and does not derogate from the decision to determine that the outcome is met in another way, or from the need to assess development against all relevant policies. -- 11 of 39 -- [2023] SASCA 66 Bleby JA 8 Technical and Numeric Variations The Code has facilities that set or determine various technical and/or numerical requirements in relation to specified classes of development. Section 66(4) of the Act provides that the Code may include provisions that provide for the adaptation of the rules that apply in relation to a specified zone or subzone or as an overlay to provide for necessary and appropriate local variations in specified circumstances. The requirements specified or reflected in numeric variations form part of the planning rules to apply to the assessment of development, as relevant, through the classification tables and other provisions that make reference to these matters in specified circumstances. In varying a particular policy, these specific provisions or policies may be spatially applied without the need for the Code to apply the specific policy through a separate zone, subzone or overlay. One type of adaption [sic] of the rules is a variation of a technical or numeric requirement that would otherwise apply under a zone, subzone or overlay that applies to a particular location. A technical or numeric requirement operates within parameters specified in the Code and is spatially applied through the operation of the Code and its interaction with the SA planning database. (Endnotes omitted) 35 If there is an inconsistency between planning consent policies for a particular development, the Code has a predetermined hierarchy as to which policy is to prevail. The provisions of an overlay will prevail over all other policies. A subzone policy will prevail over a zone policy or general development policy. A zone policy will prevail over a general development policy. Each of these policies in this hierarchy is informed by specific desired outcomes and performance outcomes. 36 The subject land is located in the Adelaide Hills Subzone within a Rural Neighbourhood Zone. I will extract and refer to various provisions where it becomes necessary. The treatment of Dwelling 2 by the ERD Court as an independent dwelling (Grounds 1-7 and 9-12) 37 The respondents appealed to the ERD Court pursuant to s 202(1)(b) of the PDI Act. Pursuant to s 205(1), the ERD Court had power, among other things, to ‘confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate’. Section 205(2) makes provision for the exercise of the Court’s jurisdiction: (2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act: (a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged; (b) if— -- 12 of 39 -- [2023] SASCA 66 Bleby JA 9 (i) a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or (ii) a third party is appealing against a decision to grant a development authorisation, the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit); 38 As identified above, the ERD Court, constituted by a Commissioner, allowed the appeal. It granted Planning Consent, subject to certain conditions. The Commissioner was entitled to consider the matter de novo. That consideration would, however, be informed by the matters put in issue between the parties. 39 The first complaint on the present appeal is, in essence, that the Commissioner erred in treating Dwelling 2 as being subject to an existing use right, by which it could lawfully be occupied separately as an independent residential dwelling, and reasoning from that premise. The appellant’s case on appeal is that there is no evidence that Dwelling 2 has an existing use right as an independent dwelling. If anything, it has only exhibited a use ancillary to that of Dwelling 1, as a granny flat. 40 The respondents resist that complaint, in the first instance, on the basis that the appellant conceded this issue before the ERD Court. To this end, it has brought a separate application to strike out the grounds of appeal raising this issue. However, they accepted that whether the appellants should be entitled to raise this complaint could be determined at the hearing of the appeal. 41 In order to understand the significance of the grounds raising this complaint and the respondents’ objection to them, it is necessary to examine the concept of existing use rights. Existing use rights 42 Planning legislation ascribes considerable significance to the use of land for a particular purpose in rules governing development. Thus, the definition of ‘development’ in s 3 of the PDI Act, as with its predecessor legislation, the Development Act 1993 (SA) and the Planning Act 1982 (SA), extends to ‘a change in the use of land’. Then, s 4(1) provides: 4—Change of use of land (1) For the purpose of determining whether a change in the use of land has occurred, the commencement or revival of a particular use of the land will, subject to this section, be regarded as a change in the use of the land if— (a) the use supersedes a previous use of the land; or -- 13 of 39 -- [2023] SASCA 66 Bleby JA 10 (b) the commencement of the use or the revival of the use follows on from a period of non-use; or (c) the use is additional to a previously established use of the land which continues despite the commencement of the new use; or (d) there is an increase in the intensity of the use of the land which is prescribed by the Planning and Design Code as constituting a material increase in use for the purposes of this paragraph. 43 In Eliza Jane Investments Pty Ltd v City of Playford,4 the Court considered whether a development proposal constituted a change in use of land and, if so, whether the proposal was a non-complying development for the purposes of s 35 of the Development Act 1993. Bleby J adopted a statement by Wells J in Prestige Car Sales Pty Ltd v Walkerville Town Corporation:5 The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that would be made of it after execution of the proposals there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. It should be borne in mind that labels are not principles. No one factor is necessarily decisive. There should be no resort to convenient, but undiscriminating and over-simplified, formulae. 44 In City of Mitcham v Fusco & Anor,6 the Full Court articulated a necessary consequence of including a change in use of land in the definition of ‘development’:7 Although there is no direct statutory provision to this effect, as there has been in predecessors to the Development Act, the effect of the present regime is still to protect the existing use of the land. For an activity to constitute development, unless it comes within one of the other paragraphs of the definition, there must be a change in use of the land. There is nothing to prevent existing non-conforming uses from continuing. (Footnote omitted) 45 In this regard, the Court drew on a further limb of the definition of ‘development’ in the Development Act 1993, being paragraph (h), which specified: (h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development. 46 The PDI Act does not make an express exception for existing uses of land in this way. However, paragraph (l) of the definition of ‘development’ in the PDI Act provides for acts or activities declared by or under the regulations to constitute development. The definition makes further provision for the regulations to declare acts or activities that do not constitute development for the purpose of the Act. 4 (2009) 168 LGERA 321. 5 (1979) 20 SASR 514 at 522; see Eliza Jane Investments Pty Ltd v City of Playford (2009) 168 LGERA 321 at [20] and City of Mitcham v Fusco & Anor (2002) 124 LGERA 196 at [27]-[33]. 6 (2002) 124 LGERA 196. 7 City of Mitcham v Fusco & Anor (2002) 124 LGERA 196 at [26]. -- 14 of 39 -- [2023] SASCA 66 Bleby JA 11 Clause 5 of Schedule 4 to the Planning, Development and Infrastructure (General) Regulations 2017 (SA) then specifies certain uses that are declared not to constitute development for the purposes of the Act. It does not refer to existing uses. However, it does specify: (1) The use of land and the use of any lawfully erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building. 47 Notwithstanding the absence of a definitional equivalent to that in paragraph (h) of the definition in the Development Act 1993, I accept that one effect of the PDI Act is to protect existing uses of land. Ancillary or incidental uses of land 48 A further concept that emerges from the jurisprudence is the use of land that is ancillary or incidental to an identified existing use, as opposed to being a separate use altogether. In Stewart v McQuade,8 the question was whether a proposed building was to be ancillary or incidental to an existing dwelling, or to be used as an independent dwelling in its own right. The relevant authority under the Development Act 1993, being the District Council, granted the respondents planning consent for construction of a building separate to the respondents’ house. It was approved as ‘an ancillary building to an existing dwelling’. The Council did not at the time have power to grant consent to the proposed development if it was to be a separate dwelling on the one allotment. ‘Dwelling’ was defined in the Regulations as ‘a building or part of a building used as a self-contained residence’. 49 Much of the argument in Stewart v McQuade centred on the features to be included in the building, and whether that meant that it should be regarded as a separate dwelling. However, the Full Court concluded that notwithstanding the existence of features in the building that made it easier for it to be used as a dwelling, the ERD Court had not erred in concluding to the opposite effect. Doyle CJ emphasised the importance of the use of the building in reaching this conclusion:9 The emphasis in the definition of dwelling is upon the use of the building. No doubt that refers to the proposed use of the building. The form of a building may greatly influence the decision about the proposed use of the building, but in my opinion form cannot be decisive. This is particularly so when the form is deceptive (for example, a house proposed to be used as an office) or when a distinction has to be drawn between different structures which are all part of the one category (for example, distinguishing between a dwelling as defined and a semi-detached dwelling as defined). Thus, as I have already said, while the form of a building may be very influential, in the end it is the proposed use of the building which will provide the answer in many cases. 8 [1997] SASC 6170. 9 Stewart v McQuade [1997] SASC 6170 at [59] (Doyle CJ, Lander and Bleby JJ agreeing). -- 15 of 39 -- [2023] SASCA 66 Bleby JA 12 50 This emphasis on use drew on a definition in the Regulations. The significance of whether the proposed building was a dwelling lay in the prohibition on the Council granting consent for the development. However, the characterisation of the building, by reference to its proposed use, as ancillary to the existing dwelling rather than as an independent dwelling, allowed the development to proceed. 51 In Eliza Jane Investments Pty Ltd v City of Playford,10 the Court referred to the discussion by the New South Wales Court of Appeal in Foodbarn Pty Ltd v Solicitor-General, on what constitutes an ancillary use:11 It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed. 52 As identified above, the appellant’s case is that the respondents did not establish that the proposed development would not constitute a change in use of Dwelling 2. This was on the basis that the respondents had not established that at the time of the application, Dwelling 2 had existing use rights as a separate, independent dwelling, as opposed to a granny flat, the use of which was incidental or ancillary to the use of Dwelling 1. The appellant’s submission on appeal with respect to existing use rights of Dwelling 2 53 In support of this conceptual characterisation of the posited use of Dwelling 2 as a granny flat, as an ancillary use, the appellant submitted that planning law distinguishes between various types of human habitation. In The Oaks Hotels & Resorts Pty Ltd v City of Holdfast Bay,12 the ERD Court distinguished between a use of a property as commercially managed serviced apartments as being additional to a previously established and lawfully continuing use of land as a residential flat building.13 The Court reasoned:14 It seems to us that the commercially managed apartments proposed are likely to have slightly different impacts upon the amenity of the locality from the impacts of a 10 (2009) 168 LGERA 321. 11 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160; see Eliza Jane Investments Pty Ltd v City of Playford (2009) 168 LGERA 321 at [22]. 12 [2010] SAERDC 16. 13 The Oaks Hotels & Resorts Pty Ltd v City of Holdfast Bay [2010] SAERDC 16 at [31]. 14 The Oaks Hotels & Resorts Pty Ltd v City of Holdfast Bay [2010] SAERDC 16 at [30]. -- 16 of 39 -- [2023] SASCA 66 Bleby JA 13 conventionally used residential flat building, in much the same way as the impacts of a motel and a residential flat building are different. 54 The appellant submitted that ‘planning law’ also recognises that use of a building as a granny flat cannot be equated as use of a building as an independent residential dwelling. It referred to Rural Neighbourhood Zone PO 7.1 in this regard, which addresses ‘residential ancillary buildings and structures’ and requires them to be ancillary to a dwelling on the site. 55 The appellant then drew together the various aspects of the jurisprudence of land use, discussed above, in support of the following submission: The Appellant submits that in the context of a proposal to divide Lot 85 into two smaller allotments, there is a world of difference between on the one hand a situation where there has been independent occupation of two houses [on] two separately held sites since the 1970s, and on the other hand a situation where there is one house with a granny flat occupied from time to time by a family member. While the former situation might in some circumstances contribute to a justification of some departure from appropriate minimum allotment sizes where the land is proposed to be divided, the latter situation provides no rational basis for any such departure. (Footnote omitted) 56 Then, in the appellant’s submission, whether or not Dwelling 2 was subject to a lawful land use of independent occupation engaged a number of issues of fact and law, which the ERD Court was not in a position to decide. Dwelling 1 dated from the 1950s. It could not have had the benefit of any authorisation under the predecessor Acts to the PDI Act. Any entitlement to occupy it depended on existing use rights. Whether any such rights had existed previously and continued, without abandonment at some point (with the effect of terminating those existing use rights), required evidence. 57 The appellant submitted that the only relevant evidence was that Dwelling 2 was presently occupied by a family member of the respondents. The Commissioner was not in a position, on the appellant’s submission, to make a finding that Dwelling 2 was currently being occupied by an arm’s length tenant or had recently been occupied in such a manner. However, in the absence of evidence to that effect, there was no basis for the Commissioner to make a finding that there were lawful existing use rights for two independent dwellings. 58 Before moving to what was in issue before the Commissioner and what the Commissioner decided, it is necessary to identify the significance of this submission. The definition of ‘development’ in the PDI Act also incorporates ‘the division of an allotment’. It follows that whether or not the proposed division would constitute a change in use rights, by reason of rendering Dwelling 2 a fully separate, independent dwelling, the proposed division is nonetheless a development within the meaning of the PDI Act. -- 17 of 39 -- [2023] SASCA 66 Bleby JA 14 59 The appellant’s submission was more nuanced. One of the critical issues agitated at trial was, as discussed further below, the stipulation in PO 8.1 of the Rural Neighbourhood Zone provisions that the minimum site area for the Zone is 2,000m². Lot 22, it is to be recalled, would be 1,114m². Further, site frontages are to be not less than 20m, whereas the site frontage for Lot 21 would be only a little over 6m. Relevantly, however, the Commissioner concluded that together, the proposed allotments contributed appropriately to the established pattern of division, that the division would not alter the density of development and that the character and amenity would not change.15 60 These findings are subject to specific challenges, which are addressed below. For present purposes, the appellant submitted that these findings of no change to character and amenity and no alteration to density are only explicable on the basis that the Commissioner relied on the existence of there having already been two independent dwellings on the land. That is, they are only capable of being justified on the assumption that each of Dwelling 1 and Dwelling 2 presently attract existing use rights as separate dwellings, and that this situation would remain following the land division. 61 The appellant submitted, however, that in the absence of any concession by it, the respondents thereby had the onus of satisfying the ERD Court of the facts and circumstances that would enable a finding as to the existing use rights attaching to Dwelling 2 as an independent dwelling.16 62 The respondent submitted, in the first instance, that it was not open to the appellant to make this complaint, given what was placed in issue before the Court. It is necessary to turn to the matters placed in issue before the Court, the position of the appellant at that time and how those issues were determined. The treatment of the buildings as independent dwellings 63 Section 205 of the PDI Act, which governs the approach to be taken by the ERD Court, is set out above. The hearing before was in effect a hearing de novo. However, the Court’s determination was necessarily framed by the matters placed in issue. 64 To that end, the Commissioner described the issues in the following way:17 The Court’s decision in this matter falls to be determined as to the suitability of: • The proposed battle-axe allotment in the context of the existing and reasonably expected allotment pattern in this part of the zone/subzone; and 15 [2022] SAERDC 12 at [113]. 16 Lacey v Burnside [2009] SASC 136 at [35] (Kourakis J). 17 [2022] SAERDC 12 at [52]-[53]. -- 18 of 39 -- [2023] SASCA 66 Bleby JA 15 • The departure of the proposed allotment size from the provisions of subzone DPF 2.1 in the context of the established pattern of division and in particular having regard to the circumstances of the subject land. Arising from this, the manner in which the Code is to be read in respect of the role of a DPF was also called into question. 65 The Commissioner then identified the matters to which she had regard in determining those issues:18 In coming to a decision I have had regard to the expert evidence, the particular circumstances of the locality, submissions from both parties and all of the relevant provisions of the Code. 66 The Commissioner articulated these issues against a statement of the following matters that were not in dispute, framed by reference to the opinions of the experts:19 The experts agree: • The subject land is presently developed with two lawful dwellings; • The existing land use is appropriate in the locality; • the resulting allotments would be suitable for their intended purpose with each accommodating one existing lawful independent and fully serviced dwelling; • Access is appropriate for each proposed allotment including for emergency service vehicles; • Vegetation will not be impacted by the division; and • The streetscape will not be changed as a result of the division. 67 The Commissioner then addressed the Code, the effect of which is discussed below, in the context of Grounds 14-19. She then turned to the planning merits of the application. In this regard, the Commissioner’s reasons addressed the pattern of division,20 the allotment design and layout21 and allotment size.22 The Commissioner then went on to address further matters, being future development and precedent,23 current occupancy arrangements,24 the independence of the respondent’s expert25 and the approach of the appellant’s expert.26 The 18 [2022] SAERDC 12 at [54]. 19 [2022] SAERDC 12 at [51]. 20 [2022] SAERDC 12 at [82]-[85]. 21 [2022] SAERDC 12 at [86]-[99]. 22 [2022] SAERDC 12 at [100]-[113]. 23 [2022] SAERDC 12 at [114]-[125]. 24 [2022] SAERDC 12 at [126]-[127]. 25 [2022] SAERDC 12 at [128]-[132]. 26 [2022] SAERDC 12 at [133]-[137]. -- 19 of 39 -- [2023] SASCA 66 Bleby JA 16 Commissioner then reached the conclusion set out at the beginning of these reasons.27 68 On the issue of current occupancy arrangements, the Commissioner found as follows:28 The Respondent suggested to the Court that the dwellings were in some way linked to a familial connection between the occupiers. The dwellings are lawful independent dwellings and I am not persuaded that the characteristics of the occupants are relevant to this matter. 69 These paragraphs identify that there was some degree of contention with respect to the nature of the current occupation of the dwellings. However, it appears that the Commissioner dismissed the relevance of this on the basis of a position, that the Commissioner took to be established, that the dwellings were lawful, independent dwellings. The appellant on this appeal relies on evidence of the occupation of Dwelling 2 by a family member in support of the proposition that the respondent had failed to establish that the dwellings were lawful independent dwellings. Specifically, the appellant submitted that the identity of the present occupant of Dwelling 2, and specifically his relationship with the respondents (the evidence was that the occupant was the brother of the first respondent) bore directly on whether the Commissioner could make a finding that Dwelling 2 had been used, either intermittently or continuously, independently of Dwelling 1. 70 The evidence and submissions on which the parties relied before the Commissioner are therefore critical to determining whether it was in dispute that the dwellings had existing use rights as independent dwellings. 71 Bearing in mind the de novo nature of the hearing before the Commissioner, the issues were not necessarily defined prior to the institution of the appeal. Having said that, the practicalities of the trial would, in the first instance, direct the respondents’ attention to the reasons given by the authority for refusing the application. In this regard, the appellant authority had prepared an assessment report prior to its decision to refuse the consent. This was prepared by Mr Doug Samardzija, a statutory planner employed by the Adelaide Hills Council. 72 Mr Samardzija recommended that the application be refused. His recommendation was based on the conclusion that the proposal was seriously at variance with the provisions of the Code, specifically, as follows: Adelaide Hills Subzone: 27 [2022] SAERDC 12 at [138]. 28 [2022] SAERDC 12 at [126]-[127]. -- 20 of 39 -- [2023] SASCA 66 Bleby JA 17 • Desired Outcome 2: Land division proposed is not sympathetic to the allotment pattern and the character of the development within the locality • Performance Outcome 2.1: Allotment 22 proposed is not consistent with the established pattern of division surrounding the development site and will not maintain local character and amenity • Designated Performance Feature 2.1(b)(ii): The division proposed is not considered to be consistent with the established pattern of division surrounding the development site because proposed allotment 22 fails to meet the median allotment size of 3,155m² identified within a radius of 200m measured from the centre of the main allotment. Rural Neighbourhood Zone: • Desired Outcome 1: The proposal does not seek to create an allotment which would result in housing being located on large allotments in a spacious rural setting with large outbuildings and considerable space for trees and other vegetation. Proposed allotment 22 with an area of 1114m² is not considered to be a large allotment when compared to the established character in the locality and the rural residential setting. Furthermore, the division that has been proposed does not allow for sufficient room around the existing built form for any further significant planting of trees and vegetation. • Performance Outcome 8.1: Proposed allotment 22 is not consistent with the density and dimensions expressed in the relevant Minimum Allotment Size Technical and Numeric Variation and is not of a suitable size and dimension to contribute to a pattern of development consistent with the locality. • Designated Performance Feature 8.1: The proposal fails to satisfy PO 8.1 because proposed allotment 22 with an area of 1114m² does not satisfy the Minimum Allotment Size Technical and Numeric Variation of 2000m² as specified in DPF 8.1 (a). Part 3 Overlays- Hazards (Bushfire- Medium Risk) Overlay: • Performance Outcome 4.2: The land division does not provide a [sic] for an allotment facing the street for proposed allotment 22, and does not create an easily identifiable property for emergency services. Part 4- General Development Policies- Land Division • Performance Outcome 2.3: The land division will not maximise the number of allotments that will face the public road. The proposal is for a battle exe allotment which will have the driveway as frontage instead of the allotment. • Performance Outcome 8.1 & Designated Performance Feature 8.1: The predominant land division form is regular shaped traditional allotments with direct wide frontage facing the road. The proposal is therefore not considered to respond to existing neighbourhood context. 73 There are two observations to be made of these conclusions. First, the appellant authority accepted all of them, repeating them word for word in its Decision Notification Form. Secondly, as observed above, these reasons for -- 21 of 39 -- [2023] SASCA 66 Bleby JA 18 recommending refusal of consent (and therefore for refusing consent) were concerned with the proposed development not being sympathetic to the established pattern of division surrounding the development site or the character and amenity of the locality, having regard to the size and configurations of the proposed developments. It made no reference to any issue of existing use rights. 74 As far as Mr Samardzija may have given any consideration to the question of existing use rights, his assessment report described Lot 85 as follows: The allotment currently has two existing lawful dwellings, the larger of the two dwelling [sic] fronts Glenside Road whilst the second dwelling is immediately to the rear of the front dwelling. The plan of division seeks to establish an allotment around each of the dwellings. 75 If anything, the description ‘two existing lawful dwellings’ appears, on its face, to assume the lawful existence of the two dwellings as separate, independent dwellings. This description is not conclusive to this end, but when combined with the lack of any issue being taken with existing use rights, this would appear to be a premise on which the appellant proceeded to determine the application. Elsewhere in the assessment report, Mr Samardzija described the presence of ‘two existing dwellings’. 76 Again, the fact that this position appeared to have been taken on the original assessment and determination could not have set the boundaries of the appeal. Nevertheless, it provides context to the approach then taken by the respondents before the ERD Court. 77 The respondents called Mr Ken Body, a town planner, to give expert evidence. Mr Body prepared a statement of evidence that contained the following opinions: 4.3 The subject site is currently occupied by two lawfully existing separate dwellings… … 9.2 … As the development seeks to formalise the on-ground reality of two lawfully existing separate dwellings, … … 9.8 I note that the development seeks to formalise the on-ground reality of the two lawfully existing dwellings, and thus, does not alter existing site conditions. … … 9.12 I am also satisfied that the development aligns with PO 8.1 of the Rural Neighbourhood Zone, as: – the development is formalising the current on-ground reality through allocating an allotment for each of the two lawfully existing dwellings on the subject site (while not altering the current site conditions), … -- 22 of 39 -- [2023] SASCA 66 Bleby JA 19 78 Mr Body’s report was directed to the assessment of the proposed development against the provisions of the Code, on the premise that Lot 85 was occupied by two lawfully existing separate dwellings. The respondents did not, at trial, adduce evidence about the historical occupation of Dwelling 2 and whether it had been and was presently occupied as a separate, independent dwelling. 79 In opening his client’s case, counsel for the respondent tendered an extract of the South Australian Government Gazette of 15 February 1972, saying: The purpose of this document, it is there for the implementation of planning controls in what was the District Council of Stirling, which I understand the subject land to have been in at the time of 1972. So, the sole purpose this document will be used for is to the extent that there is a dispute as to existing use rights, which I am not sure whether there will be or won’t be, or the extent of such a dispute. At least we have the document there as to the day and we can make do for that purpose. (Emphasis added) 80 At the outset, then, the respondent signalled that it did not know whether the appellant was challenging that each dwelling was subject to existing use rights of lawfully separate, independent occupation. Counsel for the respondents then shortly indicated his clients’ position: Each dwelling has separate services, including electricity and water. Each has separate access and each is capable of entirely separate lawful occupation. The only thing that effectively stops these from being two completely separate dwellings is that artificial construct of the cadastral boundary, which is what the applicant has come to this court seeking to regularise. 81 Following this opening, counsel for the appellant did not signal any dispute about existing use rights. 82 The respondent called Mr Body, who was then cross-examined. The cross-examination touched on matters relevant to the question of existing use rights. It did not squarely challenge Mr Body’s opinion that that Lot 85 was occupied by two lawfully existing separate dwellings. For example, the cross-examination contained the following exchange: Q. And did you inspect both dwellings. A. Not inside, no. But certainly I viewed them when I was walking on the site, yes. Q. So just an external inspection on that first occasion. A. Yes, I believe so. Q. What information did your clients provide you about how they were using the buildings. A. Well, obviously there was a discussion that they were residing in the front of the two dwellings. At the time I think I was informed that they were proposing to have a family -- 23 of 39 -- [2023] SASCA 66 Bleby JA 20 member stay in the rear dwelling. But whether that was actually happening at the time I’m unsure. Q. So at the time of the visit back in November 2020 do you know whether the rear dwelling was occupied at that time or you’re not sure. A. I’m not sure. 83 Later, Mr Body was asked whether the labels ‘Dwelling 1’ and ‘Dwelling 2’ were his labels, and he confirmed that they were. It was then put to him that in his original planning report, he characterised Dwelling 2 as an outbuilding. When he was taken to that report, he rejected that his reference to ‘outbuildings’ in that document incorporated reference to Dwelling 2. 84 The cross-examiner then asked questions that appeared designed to elicit a concession from Mr Body that Dwelling 2 should be characterised as ancillary to Dwelling 1: Q. You’d accept, would you not, that the fact that the two dwellings might have separate services and meters, that’s not necessarily determinative of how the buildings are used in practice. In other words, if I could put to you the proposition that – sorry, I’ll ask you to answer that question. A. Well, having two sets of services inherently leads itself to having two different tenants, for want of a better term. Q. Yes, but you could, for example, if the rear dwelling was in fact an outbuilding, a granny flat, or a sort of studio apartment used in association with the front dwelling, it wouldn’t be out of the question to have separate meters if, for example, you wanted to charge granny for her usage of power or water. A. Well, I think in this instance the rear dwelling, as we alluded to before, was built prior to the front dwelling, so I’m not sure we can say that’s a granny flat associated with the front dwelling, the front dwelling didn’t exist at the time it was built. Q. Yes, I’m more interested, not when, the timing of when they were constructed, but how they’re being used. … Q. The fact that there are separate services doesn’t necessarily indicate that they’re entirely separate, it might be consistent with them being used as one dwelling and outbuilding; you’d agree with that wouldn’t you. A. Well, I think if you’re going to the trouble of putting in two separate services to two separate dwellings, there’s an inherent delineation between the two. 85 The cross-examination continued for a while in this vein, asking Mr Body to hypothesise about the use of an independently serviced building as an ancillary granny flat-style accommodation. It then turned to the building materials used and the size of Dwelling 2, and Mr Body’s understanding that Dwelling 2 was currently being occupied by the first respondent’s brother. -- 24 of 39 -- [2023] SASCA 66 Bleby JA 21 86 This line of questioning was obviously enough relevant to any question of existing use rights, were that in issue. However, the cross-examiner then revealed the purpose of these questions: Q. What I’m more interested in, if this division does go ahead, and the rear dwelling is placed on its own allotment, you wouldn’t expect, would you, that someone’s going to buy a 4500 sq m in Crafers and use that building as their dwelling. That’s not a likely outcome in practice is it … 87 The cross-examiner then developed this theme, survived an objection and then pursued the line of questioning by asking whether the respondents had discussed with Mr Body any intention to sell Lot 21, once the proposed land division was achieved. 88 There was, therefore, cross-examination on matters that were potentially relevant to the question of existing use rights of Dwelling 2. However, it became apparent soon enough that this questioning was directed to the probability that Dwelling 2 was of such a character and had been used in such a way that Lot 21 would be sold following division. 89 This cross-examination did not, in my view, signal at all clearly that existing use rights of Dwelling 2 were in issue in the trial. If it was intended to do so, it was inadequate to that end. At best, it left the question uncertain. This is borne out by the fact that following re-examination, the Commissioner asked Mr Body squarely whether he considered both dwellings on the site to be lawful detached dwellings. Mr Body answered yes. The appellant did not seek to re-open the cross-examination in light of that exchange. 90 Counsel for the appellant then opened. The opening made it clear that the questioning around the potentially ancillary nature of Dwelling 2 was not directed to a challenge to existing use rights, but to the prospect that the proposed division was the first step towards demolishing Dwelling 2 and building a new dwelling: We will also have something to say about this idea that this is all about regularising a cadastral anomaly, putting two dwellings on a title. We often hear that. Well, not often but that does get rolled out from time to time as a justification for approving allotments that wouldn’t ordinarily be justifiable if it was green fields or undeveloped land. But we say the court needs to be very circumspect and cautious about accepting that proposition. The reason being that whilst we don’t take any issue with the existing use rights or the ability to separately occupy those dwellings, that’s the historical fact but the reality of the situation is that this division is about creating an opportunity for a new dwelling to be established on the rear allotment… [T]he fact that [Dwelling 2] seems to be used as a matter of practice … within the same family unit, a family member staying in there, which seems very much like it being used as an outbuilding and we will ask the court to project forward that what’s the likelihood that that existing building will remain once this allotment is created. (Emphasis added) -- 25 of 39 -- [2023] SASCA 66 Bleby JA 22 91 Notwithstanding this express statement in opening, the appellant pointed further to the statement of evidence of Mr Samardzija who, notwithstanding his earlier assessment report describing ‘two existing lawful dwellings’, expressed the following opinion: 4.3 The allotment is used for residential purposes and contains two dwellings with associated domestic structures. The primary dwelling, identified as dwelling 1 in the planning report submitted with the application, is located at the front of the property set approximately 9.5m from the front allotment boundary with approximately 190m² of living area with attached single car garage, associated verandah and decking. The secondary dwelling, identified as dwelling 2, is located approximately 15m behind the primary dwelling and has approximately 67m² of living area with an attached verandah. Considering the size and the location of the secondary dwelling relative to the primary dwelling, it is more akin to ancillary accommodation or a granny flat. 92 The difficulty with the appellant relying on this passage in Mr Samardzija’s statement of evidence, in support of the proposition that the ability of Dwelling 2 to be lawfully independently occupied remained in issue, is that this is merely a description of the buildings, and not evidence going to, or putting in issue, the historical use of Dwelling 2. 93 Finally, the appellant pointed to a submission by its counsel in closing with respect to Dwelling 2 that, ‘[i]t’s more in the nature of something that will be ancillary to the main dwelling’. This submission needs to be read in its full context. It appears within the following submission: In my submission, rather than being distracted by this question of what can happen on the land lawfully with the two dwellings, what matters in the court’s planning assessment of this proposal is the practicality of perhaps how the dwelling is used currently, and we’ve heard evidence that that’s occupied by a family member, which suggests – it’s perhaps consistent with its proximity to the dwelling at the front, and its size and proportions. It’s more in the nature of something that will be ancillary to the main dwelling, but perhaps more importantly than that, is about the likelihood of that dwelling remaining on the land. (Emphasis added) 94 The appellant was patently here pursuing a case that the apparently ancillary nature of Dwelling 2 warranted a conclusion that it would likely be demolished following the land division, and a new dwelling built on Lot 21. 95 Having regard to the above discussion about the significance of the ancillary nature of a building to the question of existing use rights, I am prepared to accept, for the sake of argument, that it was open to the appellant to contend that Dwelling 2 did not have existing use rights as an independent dwelling, and that this should operate at least as a consideration against granting consent to the land division. However, the appellant did not identify that the question of existing use rights was in issue. To the contrary, it conceded expressly that Dwelling 2 had existing use rights as an independent dwelling. The appellant’s characterisation of Dwelling 2 as ancillary to Dwelling 1 was clearly for the purposes of advancing its argument -- 26 of 39 -- [2023] SASCA 66 Bleby JA 23 that the likelihood of further development following the division should operate against a grant of consent. 96 The respondents were therefore faced with a case that did not require them to address whether existing use rights attached to Dwelling 2. That was conceded. They only needed to answer the appellant’s case insofar as the nature and current use of Dwelling 2 was relevant to the argument that these matters demonstrated the prospect of future development, and that that prospect was relevant to whether consent should be granted. The Commissioner accepted that a future application to replace Dwelling 2 was a possibility, and even ‘a likelihood’.29 However, she found that this was not a reason to refuse the application. Then, as to the current occupancy of Dwelling 2, she held, consistently with the concession made by the appellant:30 The dwellings are lawful independent dwellings and I am not persuaded that the characteristics of the occupants are relevant to this matter. 97 In circumstances where the appellant had linked its case on the occupation of Dwelling 2 to the prospect of future development and had conceded that Dwelling 2 had existing use rights of lawful, independent occupation, this conclusion was inevitable. By contrast, had the appellant contested that Dwelling 2 had independent use rights, it may well have been necessary for the respondents to adduce evidence establishing an evidential basis for their existence. 98 The appellant did not make that contest. It should not be permitted to complain now that there was insufficient evidence for the Commissioner to treat Dwelling 2 as being subject to an existing use right by which it could lawfully be occupied separately as an independent residential dwelling. In Landmark Operations Limited v J Tiver Nominees Pty Ltd, this Court said:31 It is well established that a party is bound by the manner in which it pleads and conducts the case at trial. Save in exceptional circumstances, new issues and claims cannot be raised for the first time on appeal. Water Board v Moustakas32 is authority for the proposition that generally, where a case against a party, which is not a case which the party has been required to meet at trial, and involves evidence which the party was not required or permitted to lead in relation to that case, an appellant will not be permitted to raise it on appeal. In their joint judgment, Mason CJ, Wilson, Brennan and Dawson JJ said:33 More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient 29 [2022] SAERDC 12 at [119]. 30 [2022] SAERDC 12 at [127]. 31 Landmark Operations Limited v J Tiver Nominees Pty Ltd [2009] SASC 185 at [35] (Bleby J, Vanstone and White JJ agreeing). 32 (1988) 180 CLR 491. 33 Ibid 497. -- 27 of 39 -- [2023] SASCA 66 Bleby JA 24 and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. [Footnote omitted]. (Footnotes in original) 99 Notwithstanding that this was not a case requiring pleadings, the issues were sufficiently defined, and a critical concession made, such that it was not necessary for the respondents to lead evidence, the lack of which is now the subject of complaint. I would dismiss Grounds 1-7 and 9-12. The issues of allotment size and frontage (Grounds 14 – 19) 100 Pursuant to s 107(2) of the PDI Act, it was necessary for the ERD Court to assess the development on its merits against the Code. Pursuant to s 107(2)(c), the Court was required not to grant planning consent if the development was, in its opinion, seriously at variance with the Code. 101 As identified above, one of the issues squarely before the ERD Court was that of allotment size. Proposed Lot 22 was to be 1,114m². 102 The Code contains provisions with respect to allotment size and minimum site area under the Rural Neighbourhood Zone provisions. These are as follows. 103 Rural Neighbourhood Zone DO 1 provides: Housing on large allotments in a spacious rural setting, often together with large outbuildings. Easy access and parking for cars. Considerable space for trees and other vegetation around buildings, as well as on-site wastewater treatment where necessary. Limited goods, services and facilities that enhance rather than compromise rural residential amenity. 104 As identified above, desired outcomes are policies designed to aid the interpretation of performance outcomes by setting a general policy agenda for a zone. In the present context, two performance outcomes are relevant. Under the heading ‘Land Use and Intensity’, PO 1.1 provides: Predominantly residential development with complementary ancillary non-residential uses compatible with a spacious and peaceful lifestyle for individual households. 105 Under the heading ‘Site Dimensions and Land Division’, PO 8.1 then provides: Allotments/sites created for residential purposes are consistent with the density and dimensions expressed in any relevant Minimum Allotment Size Technical and Numeric Variation or are of suitable size and dimension to contribute to a pattern of development consistent to the locality and suitable for their intended use. -- 28 of 39 -- [2023] SASCA 66 Bleby JA 25 106 Attached to the performance outcomes are ‘deemed-to-satisfy criteria/designated performance features’ (‘DTS/DPF’). DTS/DPF 8.1 (attached to PO 8.1) provides, in part: Development will not result in more than 1 dwelling on an existing allotment or Allotments/sites for residential purposes accord with the following: (a) where allotments/sites are connected to mains sewer or a Community Wastewater Management System site areas (or allotment areas in the case of land division) are not less than: Minimum Site Area … Minimum site area is 2,000 sqm … (c) site frontages are not less than 20m. 107 Also relevant to the issue of allotment size are DO 2 and PO 2.1 of the Adelaide Hills Subzone. Adelaide Hills Subzone DO 2 provides: Land division is sympathetic to the allotment pattern and characteristics within the locality. 108 PO 2.1 provides: Allotments/sites created for residential purposes are consistent with the established pattern of division surrounding the development site to maintain local character and amenity. 109 This performance outcome also has attached to it ‘deemed-to-satisfy criteria/designated performance features’. DTS/DPF 2.1 provides: Development satisfies (a) or (b): (a) it will not result in more than 1 dwelling on an existing allotment (b) allotments/sites have an area the greater of the following (excluding the area within the access ‘handle’ if in the form of a battle-axe development): (i) 2000m² (ii) the median allotment size of all residential allotments in the Adelaide Hills Subzone either wholly or partly within a radius of 200m measured from the centre of the main allotment frontage. 110 While the expert witnesses did not agree precisely on the median calculation under DTS/DPF 2.1(b)(ii), they both calculated it to be in excess of 3,100m². The -- 29 of 39 -- [2023] SASCA 66 Bleby JA 26 difference between them in that context was not great. In any event, the median was considerably greater than the size of proposed Lot 22, being 1,114m². 111 On the topic of allotment size, the Commissioner first addressed the proposed size of Lot 22 with reference to Rural Neighbourhood Zone DO 1 and PO 1.1. She then turned to the impact of the provision in Subzone DPF 2.1(b)(ii) for allotment size to be greater than the median of allotments within a 200m radius, and then the frontage of proposed Lot 21, considered against the frontage provision in Zone DPF 8.1(c), which specifies 20m. The Commissioner posed the question for determination in the following way:34 The question remains, can lot 22, whilst materially less than the median, nevertheless meet the terms of subzone PO 2.1 and zone PO 8.1. Subzone PO 2.1 seeks consistency with the established pattern of division surrounding the development site to maintain local character and amenity. Zone PO 8.1 seeks, in the alternative to compliance with the Technical and Numeric Variation (TNV), suitability in size and dimension to contribute to the pattern of development consistent to the locality and suitable for the intended use. 112 In answer to this question, the Commissioner concluded:35 The established pattern of division includes allotments below 2000m². Although not prevalent in number, three directly abut this site and a further two are located diagonally to the north. The immediate proximity of this cluster of smaller lots to the subject land gives weight to a smaller lot in this particular location. Notwithstanding its smaller size, lot 22 nonetheless exhibits the wide allotment frontage sought by zone DPF 8.1(c). In addition lot 22 is proposed, not in isolation, but in conjunction with the larger lot 21 such that together they contribute appropriately to the established pattern of division. The division will not alter the density of development. The character and amenity will not change in this instance. I find subzone PO 2.1 and zone PO 8.1 are met despite the quantum departure of lot 22 from the provisions of subzone SPF 2.1(b). Had all of these conditions not been so, the outcome may have been different. 113 Grounds 14 and 15 are directed at the reasoning of the Commissioner leading to this conclusion. Before turning to these complaints, I note that there might be available an argument that regardless of the allotment size provisions in Zone DPF 8.1 and Subzone DPF 2.1, the alternative in subparagraph (a) in each case, namely that the development ‘will not result in more than 1 dwelling on an existing allotment’, is satisfied. However, that depends on what is meant by ‘existing allotment’. Neither the expert witnesses nor, in the event, the Commissioner, considered that this paragraph was engaged.36 This appears to have been on the understanding that this paragraph is concerned with preventing the establishment of more than one dwelling on one allotment.37 There is reason to think that this view may be correct, and that paragraph (a) does not speak to the present situation. However, in circumstances where no argument was pursued in respect of this paragraph either at trial or on appeal, it is unnecessary to consider it further. 34 [2022] SAERDC 12 at [111]. 35 [2022] SAERDC 12 at [113]. 36 [2022] SAERDC 12 at [104]. 37 [2022] SAERDC 12 at [103]. -- 30 of 39 -- [2023] SASCA 66 Bleby JA 27 Interpretation of the term ‘large allotments’ in Rural Neighbourhood Zone Desired Outcome 1 (Ground 14) 114 The appellant complains first about the following passages in the Commissioner’s reasoning to the above conclusion:38 Zone DO 1 speaks to housing on large allotments in a spacious rural setting and PO 1.1 references “…a spacious and peaceful lifestyle…”. Mr Samardzija opined the existing allotment contributes to the spacious rural setting. He was of the view that whilst 1114m² might be considered spacious, in the context of a locality with a median allotment size of 3117.7m², it is not. In my view the current setting is and the future setting will continue to be spacious semi-rural residential. An allotment of 1114m² is a large allotment for a residence. (Footnote omitted) 115 The appellant complained that these paragraphs demonstrate an erroneous failure to consider the question of allotment size in the context required by the Code. First, it submitted that these paragraphs failed to recognise that size is relative, and that what may seem large in one context may not be so in another. It then submitted that this approach did not recognise the role of desired outcomes as policies designed to aid the interpretation of performance outcomes. The Commissioner did not, in her subsequent analysis, return to the relationship between Zone DO 1 and Subzone PO 2.1 and 8.1. Rather, these passages treated Zone DO 1 as a planning policy that operated independently of the related performance outcomes, and that it was sufficient to conclude that an allotment size of 1,114m² satisfied the broad description in Zone DO 1. That then affected the Commissioner’s analysis of Subzone PO 2.1 and Zone PO 8.1. 116 This complaint reads too much into the Commissioner’s reasons. In the first instance, the appellant at trial had urged an approach by which the desired outcome was logically the place to start, as it set the general tone or themes. The relatively bland and acontextual observation, made at the beginning of the Commissioner’s consideration, that ‘an allotment of 1114m² is a large allotment for a residence’ said nothing about how the Commissioner might use the desired outcome to ‘inform [her] consideration of the relevance and application of a performance outcome, or assist in assessing the merits of the development against the applicable performance outcomes collectively’.39 117 The Commissioner then moved directly to a consideration of Subzone 2.1 and Zone PO 8.1 and their corresponding designated performance features. She accurately recorded the effect of the designated performance features and concluded, consistently with the mandated hierarchy of provisions, that while each designated performance feature provided for a minimum of 2000m², the applicable policy test was the median as specified by Subzone DPF 2.1. She noted that 38 [2022] SAERDC 12 at [100]-[101]. 39 Planning and Design Code, Part 1 – Rules of Interpretation. -- 31 of 39 -- [2023] SASCA 66 Bleby JA 28 Mr Samardzija assessed the median at 3,117.7m² and Mr Body at 3,148m². She accurately recorded Mr Samardzija’s criticism of the area of Lot 22 being 65 per cent less than the median, which he considered to be a significant departure. She then had regard to the competing opinion of Mr Body, who acknowledged the shortfall, but considered that in circumstances where the designated performance feature was a guide that did not require compliance, the proposal was suitable given the ‘immediate suburban context’ and the ‘trend of smaller allotments in the broader locality’.40 118 The Commissioner then turned to the question of frontage, considered below, before reaching the conclusions at paragraph [113], set out above. Those conclusions demonstrate that she brought to account each of the competing considerations provided for by the Zone and Subzone performance outcomes and corresponding designated performance features. 119 As set out above, the Rules of Interpretation in Part 1 of the Code provide that a designated performance feature: … provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome, and does not derogate from the discretion to determine that the outcome is met in another way, or from the need to assess development on its merits against all relevant policies. 120 The Commissioner’s contextual discussion of the views of the expert witnesses, immediately before her conclusions at [113], demonstrates that she was acutely aware of the significance of the shortfall in allotment size when considered against the median provided for in Subzone DPF 2.1(b)(ii). Her conclusion that Subzone PO 2.1 and Zone PO 8.1 were met ‘despite the quantum departure of lot 22 from the provisions of subzone DPF 2.1(b)’ was, clearly enough, informed by the fact the division would not alter the density of the development and that character and amenity would not change. 121 In this regard, the Commissioner’s initial remark, that 1,114m² is a large allotment for a residence, appears to have had no more work to do than provide a basis for her observation in the previous sentence that the current setting was, and the future setting would, continue to be spacious semi-rural residential. That observation clearly enough informed the Commissioner’s final conclusions about the lack of change to density, character and amenity. 122 The proposed division clearly did not meet the criteria specified in Subzone DPF 2.1(b)(ii). That being the case, it was permissible that the Commissioner’s above conclusion about the effect of the proposed division, in the context of consideration of Zone DO 1, should inform her subsequent consideration of the application of Zone POs 2.1 and 8.1 and Subzone PO 2.1. There is no basis to conclude that the Commissioner applied Zone DO 1 as a separate planning policy, 40 [2022] SAERDC 12 at [108]. -- 32 of 39 -- [2023] SASCA 66 Bleby JA 29 independent of the related performance outcomes. Rather, there is good reason to think that she used Zone DO 1 to inform her consideration of the application of the relevant performance outcomes, as contemplated by the Rules of Interpretation in Part 1 of the Code. 123 I would dismiss Ground 14. Treatment of the frontage width of Lot 21 (Ground 15) 124 The appellant complained that the Court erred: • in failing to give any (or adequate) reasons for concluding that the proposed development warranted approval despite the failure of Lot 21 to comply with Zone PO 8.1 and Zone DPF 8.1 in respect of site frontage; or alternatively • adopting a construction of the Code in which the General Policies Land Division PO 8.2 and DPF 8.2 were given primacy over Zone PO 8.1, contrary to the hierarchy of policies in the Code. 125 Specifically, the appellant submitted that the Commissioner did not address the circumstance that the frontage of Lot 21, at 6.13m, would plainly be less than the frontage specified in Zone DPF 8.1(c), which is 20m. 126 The Commissioner did, in fact, acknowledge that DPF 8.1(c) provided for a minimum frontage of 20m.41 Then, having addressed the expert witnesses’ treatment of allotment size, she said:42 Turning to the frontage width of lot 21, the zone and subzone policy are silent on battle- axe allotments. General policies – land division PO 8.2 specifically states “Battle-axe development designed to allow safe and convenient movement,” and DPF 8.2 provides the access to battle-axe development should be 4m wide or greater. With an access handle width of just over 6.0m and provision for vehicle turning on-site, the proposal meets both the DPF and the PO. 127 The appellant submitted that the lack of reasons for which it contended may be explained by the Commissioner identifying that the Zone and Subzone provisions are silent on battle-axe allotments. If that was the explanation, it submitted that this would disclose several errors. 128 First, the appellant submitted that there was no need for the Code to address battle-axe allotments where it already controlled frontage by the 20m policy in the Zone DPF 8.1(c). That is, the 20m policy in Zone DPF 8.1(c) increases, and by reason of the hierarchy of Neighbourhood Zones over General Development Policies, prevails over, the minimum 4m provided for by DPF 8.2 of General Policies – Land Division. The appellant submitted that it could not sensibly be thought that the authors of the Code only had regularly shaped allotments in mind 41 [2022] SAERDC 12 at [105]. 42 [2022] SAERDC 12 at [109]. -- 33 of 39 -- [2023] SASCA 66 Bleby JA 30 when setting the 20m frontage provision, and that the 20m frontage was set to control access handles to battle-axe allotments. 129 Second, the appellant submitted that the 4m minimum for a battle-axe allotment in Land Division PO 8.2 was related to traffic safety, whereas Zone PO 8.1 was concerned with the spacious character of the area. There should be no reason to construe the traffic safety minimum of 4m as overriding the amenity-based 20m provision. 130 Third, the appellant observed that both polices can be complied with, by having a minimum frontage of 20m. 131 Fourth, to the extent that the Commissioner considered that there was a direct inconsistency, the Commissioner erred, in that the Zone performance outcome had precedence. 132 As identified above, the Commissioner did expressly identify the 20m frontage specification in Zone DPF 8.1(c). She further expressly noted that Lot 21 was to have a frontage of only 6m. What was in issue was a proposed division of an existing battle-axe allotment that created one allotment of regular dimensions, smaller by some way than the median but with a frontage of 31.26m, and a new battle-axe allotment well above the median in size, but with a driveway access frontage of only 6.13m. 133 The significance of Zone DPF 8.1(c) to each allotment has to be considered in these circumstances. First, as discussed above, it is a designated performance feature attached to Zone PO 8.1. As already identified:43 A DPF provides a guide to a relevant authority as to what is generally considered to satisfy the corresponding performance outcome but does not need to necessarily be satisfied to meet the performance outcome. 134 Zone PO 8.1 is concerned with density and dimensions, and whether allotments are of suitable size and dimensions to contribute to a pattern of development consistent to the locality and suitable to their intended use. Satisfaction of this performance outcome was a matter of planning judgment, having regard to Lot 21 being in excess of 4,700m², its driveway frontage of 6.13m, the battle-axe shape and the existing pattern of development in the locality. 135 Zone DPF 8.1(c) then provides guidance, on the topic of frontage, as to what is generally considered to satisfy Zone PO 8.1. It is not impossible that a battle-axe allotment could meet the dimensions provided by this guidance. The present Lot 85 provides an example of this. 136 In that sense, I do not think it would be correct to say that the guidance in Zone DPF 8.1(c) on frontage has no relevance to battle-axe allotments. Battle-axe 43 Planning and Design Code, Part 1 – Rules of Interpretation. -- 34 of 39 -- [2023] SASCA 66 Bleby JA 31 allotments need to be considered against Zone PO 8.1 just as does any other allotment. It is correct to say, as I infer the Commissioner meant, that there is no express provision in respect of battle-axe allotments at this policy level. However, the pattern of division includes battle-axe style allotments. It is also apparent from the minimum 4m access provision in Land Division DPF 8.2, as well as from Adelaide Hills Subzone DPF 2.1(b), that the Code contemplates such allotments. Whether a proposed division that satisfies the guidance in Land Division DPF 8.2, but which does not satisfy the guidance in Zone DPF 8.1(c), nonetheless satisfies Zone PO 8.1, requires consideration of all the circumstances. 137 Lot 21 manifestly does not meet the guidance in Zone DPF 8.1(c). The question then goes back to the planning assessment required by Zone PO 8.1. That is to say, the mere fact that Lot 21 has a 6.13m frontage is something to be taken into account in considering whether the allotments created by the division satisfy Zone PO 8.1. 138 I am satisfied that while the Commissioner’s treatment of the frontage was brief, she took it into account. It was a given that this frontage was not close to the 20m provision. The Commissioner paid express regard to both the frontage of Lot 21 and the 20m guidance provided by Zone DPF 8.1(c). I do not think it was incumbent on her to say more about the difference between the frontage of Lot 21 and the guidance in Zone DPF 8.1(c). There was little more to say. The difference was manifest. The frontage of Lot 21 was not a matter on which the appellant had relied in closing submissions before the Commissioner as detracting from compliance with Zone PO 8.1. 139 I also do not accept the appellant’s complaint that the Commissioner must have impliedly considered that Land Division PO 8.2 either overrode or was inconsistent with Zone PO 8.1. It is apparent from the Commissioner’s reasons that, in the absence of any specific guidance in zone PO 8.1 about battle-axe allotments, she had regard to the guidance provided by Land Division PO 8.2. I do not read this as setting up any conflict with Zone DPF 8.1(c). Land Division PO 8.2 was just another guide to which the Commissioner appropriately had regard. 140 For the Commissioner to have had regard to the 4m minimum for battle-axe allotments in Land Division DPF 8.2, notwithstanding the failure to meet the 20m guidance in Zone DPF 8.1(c), does not mean that she treated the Land Division PO as overriding or having precedence over the Zone PO. Zone DPF 8.1(c) is concerned with space and amenity. Land Division DPF 8.2 is concerned with traffic safety. Each of these DPFs is a guide to what is generally considered to satisfy the corresponding performance outcome. Neither determines compliance with the performance outcome. 141 It would be a misconstruction of the effect of DPFs to say that by reason of the policy hierarchy, the frontage guidance of 20m in Zone DPF 8.1(c) effectively overrides the access provision in Land Division DPF 8.2 so as to require a -- 35 of 39 -- [2023] SASCA 66 Bleby JA 32 minimum 20m frontage in all cases and effectively render Land Division DPF 8.2 irrelevant. However, that is the effect of the appellant’s submission. 142 I would dismiss Ground 15. Allotment area and construction of the Code (Grounds 16-18) 143 The appellant made a number of disparate submissions to the effect that the Commissioner’s reasoning necessarily involved a misconstruction of the Code. These complaints concerned the Commissioner’s finding that Subzone PO 2.1 and Zone PO 8.1 were ‘met’, despite the quantum departure of Lot 22 from Subzone DPF 2.1(b). This, like Zone DPF 8.1(b), provides for a minimum area of 2000m² or the median allotment size within a 200m radius, whichever is the greater. The appellant submitted that the only way that the Commissioner could be satisfied of this, despite those provisions, was by thinking that the allotment size was consistent with the locality. On the appellant’s submission, the Commissioner could only have reached this conclusion on the basis that there were other allotments of a similar size. 144 The appellant submitted that this necessarily involved errors of construction of the Code. First, it submitted that the minimum size of 2000m² in Zone DPF 8.1(b) is a ‘technical and numeric variation’ (‘TNV’) and as such, is a requirement and not a guideline. The appellant did not develop this submission orally, nor explain it in its written submissions. The minimum site area to which its submissions were directed appear in designated performance features attached to Zone PO 8.1 and Subzone PO 2.1. As discussed above, designated performance features are not requirements. They are guides as to what is capable of satisfying the relevant performance outcome. 145 The appellant had not submitted before the Commissioner that the minimum size of 2,000m² was a requirement rather than a guideline. In this Court, it did not make any submission on the relationship between a TNV and its incorporation within the ‘guideline’ format of a designated performance feature. In these circumstances, I am not prepared to entertain the submissions, which were not supported by analysis, that the 2000m² minimum size was a requirement that could not be departed from or, if it could be departed from, it was necessary to give ‘due weight’ to the significance the Code places on it as a requirement rather than a guideline. 146 Next, the appellant submitted that the Commissioner’s conclusion that an allotment of 1,114m² was ‘consistent’ to the locality, in circumstances where this was a bit over one-third the median size, must have involved a misconstruction of the Code. It submitted that Subzone DPF 2.1 assists in construing Subzone PO 2.1 by ‘indicating in strong terms’ that the benchmark is the median allotment size. It submitted that the Commissioner failed to have regard to this indicator. That is, she failed to have regard to the important interpretive role of designated performance features. -- 36 of 39 -- [2023] SASCA 66 Bleby JA 33 147 I have addressed the role of designated performance features, above. In my view, this complaint is nothing more than a complaint about the planning judgment exercised by the Commissioner. The appellant has not demonstrated that the Commissioner misconstrued the Code. 148 These grounds also incorporated a number of other complaints, specifically with respect to paragraph [113] of the Commissioner’s reasons, set out above. First, the appellant submitted that the Commissioner appeared to reason that Lot 22 was justified, notwithstanding its size, because of its wide frontage. It submitted that compliance with one policy cannot justify non-compliance with another. I have addressed the Commissioner’s approach above. While her reasons here were brief, this is not a fair characterisation of them. She simply brought the frontage to account in her consideration of the performance outcome. 149 The appellant then submitted that the Commissioner must have failed to consider each allotment on its own merits, by reasoning that ‘together they contribute appropriately to the established pattern of division’. This was an error, it submitted, as it failed to address the land in its divided state. In my view, that is a selective reading of the reasons. The Commissioner did address the separate allotments although, again, somewhat briefly. 150 Finally, the appellant submitted that the Commissioner was in error in holding that the density of the development would not alter. It submitted that to the contrary, there would be a change to two allotments, a change in the calculation of the median allotment size and the facility of the conversion of a granny flat to an independent house. 151 The last of these contentions can be dismissed immediately, for the reasons given with respect to the first group of grounds. Otherwise, the changes to two allotments and median allotment size were obvious consequences. This remark by the Commissioner must be read in context. The Commissioner had already addressed the question of the established pattern of division. This comment, followed immediately by the observation that character and amenity would not change, was obviously enough directed to the fact that the division would not result in any physical changes. 152 I would dismiss Grounds 16-18. Precedent (Ground 19) 153 On the question of the precedent that this division would set, such as might undermine the relevance of applicable policies, the Commissioner said:44 In this instance the Court was advised by the Appellant [respondent], with the Respondent [appellant] accepting the mathematics on face value, that approval of this land division would decrease the median allotment size by some 30m², this it contended was negligible. 44 [2022] SAERDC 12 at [123]-[124]. -- 37 of 39 -- [2023] SASCA 66 Bleby JA 34 Whilst of itself this is negligible, I acknowledge it will contribute to the reduction in the overall median, which if recurring, will over time erode this measure. Repeated occurrences will have the effect of changing the pattern of division. Any departure therefore needs to be approached with caution. In this instance the immediate proximity of the subject land to an existing cluster of small lots, means they cannot be ignored. By virtue of that same proximity and the other specific circumstances of the case, as set out above, the departure is considered acceptable and unlikely to materially alter conditions in respect of future applications. 154 The appellant complained that these comments were inconsistent with the approach the Commissioner took at paragraph [113], in that her operative reasoning had nothing to do with compliance with median lot size. The subject land is close to a number of allotments that are of a size apparently comparable to proposed Lot 22. As the Commissioner noted, there are three that abut Lot 85 directly and two more diagonally to the north.45 It was the presence of these smaller allotments that, in the appellant’s submission, governed her reasoning at [113], not any question of compliance with median lot size. The precedential effect of this decision would then potentially allow Lot 21 to be divided into four allotments in the future, each under 1,200m². The Commissioner’s approach, in the appellant’s submission, created a precedent of allowing divisions based on an erroneous approach of the mere acceptability of lot size in the immediate area. 155 In City of Charles Sturt v Hatch, Bleby J said:46 … it is not relevant that if approval were given for a particular development as a first intrusion, another similar development might, for that reason, be allowed in the same or a similar zone. Any similar proposal at some other location will have to be judged against the provisions of the development plan as applicable to the particular site in question. It would be contrary to the requirements of the development plan to approve it because of an earlier approval for a similar activity at a different location. Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development has been approved so should another. A bad planning decision is not a reason in itself for making another one which is not consistent with the Development Plan. 156 As the Commissioner noted,47 however, an undesirable development could affect the amenity of a locality, such that a future proposal may be considered against that lowered amenity, potentially making it easier for development consent to be granted.48 157 In my view, the appellant’s complaint to the effect that the Commissioner’s conclusion was simply based on the presence of nearby smaller lot sizes, thereby establishing a damaging precedent, is overly reductionist. Contrary to the appellant’s submission, the Commissioner did not ignore the policies of the Code. She did have regard to the presence of the nearby smaller allotments, in the context 45 [2022] SAERDC 12 at [113]. 46 City of Charles Sturt v Hatch [1999] SASC 523 at [31]. 47 [2022] SAERDC 12 at [122]. 48 City of Charles Sturt v Hatch [1999] SASC 523 at [32]. -- 38 of 39 -- [2023] SASCA 66 Bleby JA 35 of considering the density of development and the amenity of the locality. However, this was in a context where the development did not propose to alter the status quo of there being two lawful, independent dwellings and two lawful driveway accesses. The evidence indicated that there was no other allotment in the locality so arranged. 158 Any future proposed development that sought, for example, to further divide Lot 21 and rely, to that end, on a precedent set by the present proposal, would have to grapple with the unique circumstances of there already being two lawful, independent dwellings on Lot 85. It is difficult to see how the circumstances could be relevantly comparable. 159 Ultimately, the Commissioner concluded that the performance outcomes were satisfied. She also had regard to the question of precedent, in a context appropriate to the way in which the matter was argued. She reached these conclusions in the ordinary discharge of her planning judgment. It is not for this Court to revisit that exercise of judgment.49 160 I would dismiss Ground 19. Conclusion 161 As already noted, the respondent filed a Notice of Alternative Contention. Paragraph 1 was to the effect that if it was not lawfully open for the Commissioner to conclude, as a matter of planning judgment, that the relevant performance outcomes were satisfied, she should or could have approved the proposed division by reason of the matters set out in paragraphs [81] or [82] of Town of Gawler v Impact Investment Corporation Pty Ltd.50 That is, the ERD Court was justified in departing from a policy in the Code. In circumstances where I would dismiss the appeal, it is not necessary to determine this contention. 162 I would dismiss the appeal and the Notice of Alternative Contention. 49 City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294 at [9]. 50 (2007) 99 SASR 115. -- 39 of 39 --