Assessing performance assessed development
The Environment, Resources, and Development Court concluded 2024 with the decision of Pergolas of Distinction v Assessment Manager at the City of Charles Sturt [2024] SAERDC 28, allowing an appeal against the decision of the Assessment Manager to refuse planning consent to an application for a carport forward of a dwelling. In doing so, largely due to the unique locality context, it made some interesting observations regarding the use of Code provisions when assessing performance assessed development.
Mr Foulis was the occupant of land at 16 Sturt Close, Grange (Land). Pergolas of Distinction (Appellant) sought planning consent on his behalf to erect an open sided carport forward of his dwelling. The Land was located on a short cul-de-sac within the General Neighbourhood Zone, where it fronted and overlooked a public reserve.
The Application was refused by the Assessment Manager (Respondent) as it was considered “unreasonably at variance with provisions relating to built form, siting/setbacks from primary frontage and streetscape expectations”. The Appellant lodged an appeal against the refusal.
Relevant policies
The proposal fell within the performance assessed development pathway. Two experienced town planners gave evidence and prepared reports to assist the Court on appeal.
It was acknowledged by both experts that the ‘provisions in the Code that are applicable to assessing the Carport were those outlined in Table 3 of the Zone’. That being said, it was generally agreed that other related policies used for guidance and context should also be applied in assessing the development. The Commissioner supported and applied this approach, commenting as follows:
[31] “The assessment of a performance assessed development is to be undertaken against all relevant provisions within the Code. This being the case there is still a need to interpret, balance and weigh the application of the various policies within the assessment…
Further, the hierarchy introduced in the Code does not convert the planning authority's task into a mechanical exercise. It still must interpret the Code, bring experience to bear on the likely effect of the development in a variety of respects, and must balance and weigh the various factors that contribute to a lawful decision that planning consent should be granted in respect of a particular development.
What may be understood from the Code's interpretation section is that the desired outcomes inform consideration of “the relevance and application” of a performance outcome. This recognises that the task is not a mechanical assessment of a development, seriatim, against each performance outcome without consideration of other overlapping or competing performance outcomes. Rather, it remains for the decision-maker an iterative weighing and balancing exercise guided by the Code.”
Assessment against Desired Outcomes
The Court held that the streetscape along the northern side of Sturt Close, where the Land sits, was materially different to that of the southern and western sides. The streetscape ranged from open front yards along the southern and western side of the roadway, to be contrasted with largely solid fencing screening the private yards of the northern properties.
The Respondent sought to rely on General Development Policies Design in Urban Areas DO 1, suggesting that the carport was not ‘development that is contextual by considering, recognising and carefully responding to its natural surroundings or built environment’. The Respondent did not rely on any Performance Outcomes to support this argument.
The Court emphasised that Desired Outcomes are only to be used to assist the interpretation of Performance Outcomes, as required. In this regard, it said:
[44] “Desired Outcomes assist in the interpretation of the related Performance Outcomes, they are not policies in their own right. I do not consider that this Desired Outcome, standing alone, contained within the General Development Policies section, plays any significant role within the assessment of the proposal against the relevant provisions of the Code, especially as there are no directly relevant PO’s within the section of the Code to which this DO applies”.
Contribution to streetscape
Performance Outcome 5.1 of the Zone required that buildings are setback from primary street boundaries to ‘contribute’ to the existing/emerging pattern of street setbacks in the streetscape.
The Court, in considering both the dictionary definition of ‘contribute’, and the approach endorsed in City of Salisbury Assessment Panel v Development Holdings Pty Ltd, held that the contribution to the streetscape need not be positive; it may merely be neutral. It suggested that in this case, the relevant test was whether the proposal detracted from the streetscape of neighbouring properties and that any resultant visual impacts are limited, rather than a requirement that the proposal have a positive effect on the locality.
Landscaping on adjacent land
Adjacent to the Land was landscaping and infrastructure that partially obstructed the view of the property from various locations along the roadway. The Respondent contended that the landscaping of the road reserve, in concealing the view of the proposed carport, should not be relied upon to support the proposal given that Council may alter or remove that landscaping at any point.
The Court agreed that landscaping on land beyond the control of an applicant cannot be relied upon to mitigate any shortcomings of a proposal, but ultimately found that that the merits of the proposed carport did not rely on the continued presence of the existing landscaping.
Take home messages
The approach adopted by the Court in applying guiding and supplementary policies as part of its development assessment will soon be restricted. The Assessment Improvements Code Amendment, currently on consultation, proposes to refine the Rules of Interpretation. It proposes, for development listed in Zone Table 3, that directly relevant policies may only be applied to the assessment, with other Code policies only to be used for contextual, interpretation purposes.
A briefing session on this Code Amendment, to assist with any consultation response, will be presented on 20 February 2025 by Gavin Leydon. Further details can be found here.
For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au or Isabella Mulholland on +61 8 8210 1294 or imulholland@normans.com.au.
