Supreme Court judgment quashes assessment panel decision in successful judicial review
The recent decision of Geber Super Pty Ltd v The Barossa Assessment Panel [2023] SASC 154 is the third Supreme Court judgment to provide important observations about the application of the Planning & Design Code (Code). In a sobering judgment, the Supreme Court quashed the Panel’s decision approving a proposed tourist accommodation development finding that the proposal was seriously at variance with the Code and that the Panel had also failed to genuinely consider this issue.
Background
In September 2021, the Panel granted planning consent for proposed tourist accommodation on land owned by Barossa Central Pty Ltd (Barossa Central). The proposed development fell within the Rural Zone, and consisted of 141 rooms, six villa suites, a function centre, restaurant, café, shops and associated facilities.
Geber Super Pty Ltd and others lodged judicial review proceedings challenging the Panel’s decision, arguing, among other things, that the proposal was seriously at variance with the Code. The Panel did not participate in the proceedings, while Barossa Central sought to defend the merits of its proposal.
Geber Super Pty Ltd contended, amongst other grounds, that:
- The proposed development was seriously at variance with the Code and it was legally unreasonable for the Panel to conclude otherwise;
- The Panel failed to consider (or genuinely consider) whether the proposed development was seriously at variance with the Code; and
- The Panel failed to consider all relevant considerations.
The Rural Zone relevantly provided the following assessment provisions which were considered at length by the parties and the Supreme Court throughout the proceedings:
“PO 1.1
The productive value of rural land for a range of primary production activities and associated value adding processing, warehousing and distribution is supported, protected and maintained.
DPF 1.1
Development comprises one or more of the following: … (v) tourist accommodation.
PO 6.3
Tourist accommodation is associated with the primary use of the land for primary production or primary production related value adding industry to enhance and provide authentic visitor experiences.”
Findings
The Supreme Court held that the provisions of the Rural Zone necessitated a link between any proposal for tourist accommodation and a primary production use of the land, or a primary production value adding industry, which the proposal did not satisfy. The proposed stand alone tourist accommodation development had no such association and was of a scale considered to be fundamentally at variance with the relevant policies contained in the Code. The Supreme Court found that for the Panel to conclude otherwise was legally unreasonable.
After receiving evidence of the Panel’s discussions prior to determining the application, the Supreme Court also found that the Panel had failed to genuinely consider whether the proposal was seriously at variance with the Code, and therefore had also failed to take into account all reasonable considerations.
The Supreme Court granted the judicial review and quashed the Panel’s decision to grant planning consent.
Observations about the Code
This judgment made a number of important observations regarding the interpretation of the Code which included the following:
- Desired Outcomes assist in the interpretation of Performance Outcomes; they are not policies in their own right. Rather, they set a general policy agenda which informs the Performance Outcomes.
- Designated Performance Features also assist in the interpretation of the Performance Outcomes; however, they too are not policies in their own right.
- Just because a Designated Performance Feature is met, it does not mean that the corresponding Performance Outcome is necessarily met.
- Conversely, just because a Designated Performance Feature is not met, it does not mean that the corresponding Performance Outcome is not met.
- Assessment of a development proposal is not limited to the provisions of the Code provided by the PlanSA Portal:
[123] “It would be a bizarre result if a panel or other relevant authority were precluded from having regard to a provision of the Code that was objectively relevant merely because the computer had not produced that provision on an enquiry of the planning database.”
The fact that the Code provided that development of the kind and scale proposed was appropriately sited in the Tourist Development Zone and the Township Main Street Zone were therefore relevant considerations.
Panel deliberation
Of significance to Panels generally, the Supreme Court had regard to evidence about what occurred at the Panel meeting, specifically what deliberations took place during the course of the meeting. This involved reviewing the Panel minutes, agenda report, handwritten notes and hearing oral evidence from participants at the Panel meeting.
The Supreme Court went so far as to make inferences based on the above evidence as to what deliberations took place, ultimately leading it to conclude that the Panel had failed to genuinely consider whether the proposal was seriously at variance notwithstanding its resolution that the proposal was not seriously at variance with the Code.
In light of this, Panels will need to review their processes and procedures for publicly heard Panel meetings to ensure that their decisions are robust and that all relevant issues are adequately considered.
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 Alice Tonkin on +61 8 8217 1372 or ATonkin@normans.com.au.
