Court of Appeal upholds ERD Court approach to interpretation of the Planning & Design Code

The recent judgment in Adelaide Hills Council Assessment Manager v Parkins & Anor [2023] SASCA 66 was the first time the Supreme Court has issued a judgment involving challenges to the merits assessment against the Planning & Design Code (Code).

Background

The applicants applied to the Council to divide land in Crafers (1 into 2) within the Rural Neighbourhood Zone (Zone) and Adelaide Hills Subzone (Subzone). The subject land featured two dwellings with the intention to create an allotment for each dwelling.

The subject land is approximately 5,859m² and irregular in shape. The applicants proposed a division to create Lot 21 and Lot 22. Lot 21 was at the front of the subject site, rectangular in shape and would provide for the main dwelling with an allotment size of 1,114m². Lot 22 would comprise the remainder of the subject land (approximately 4,745m²) incorporating the modest second dwelling on a battle axe shaped allotment.

Relevantly, the Subzone Designated Performance Feature 2.1 (DPF 2.1) states:

“Development satisfies (a) or (b)

(a)…

(b) allotments/sites have an area 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 200 metres measured from the centre of the main allotment frontage.”

The Assessment Manager refused the application of the basis that the proposal was not sympathetic to the established pattern of division or the character and amenity of the locality, having regard to the sizes and configurations of the allotments. One of the key issues was the relevance of the departure of Lot 21 from the minimum allotment size according to DPF 2.1, noting the relevant median allotment size was in excess of 3,100m².

Environment, Resources and Development Court Findings

The proceedings were initially heard in the ERD Court (Parkins v Adelaide Hills Council Assessment Manager [2022] SAERDC 12). In relation to DPF 2.1, the Court stated:

“A DPF is a relevant policy and must therefore form part of the assessment… whilst quantum departure from the terms of a DPF is not, of itself grounds for refusal, I am not convinced that quantum departure can be completely ignored. It will, if nothing else, be a flag to the relevant authority to carefully ensure that, by way of alternative facts and circumstances of the matter, the performance outcome is met.”

“The significance of any departure will depend… on the circumstances of the matter at hand.”

(emphasis added)

The Court determined that while a significant departure in minimum allotment size was evidenced by the proposed Lot 21, the associated performance outcome was still met. In finding so, weight was placed on the presence of two dwellings on the subject land and therefore there being no change to density, and the presence of other allotments below 2000m² in the locality.

Further, the Court found that the proposal was consistent with the locality and the allotments were suitable for the intended purpose. The landscape, streetscape, character and amenity of the locality was considered to remain unchanged by the proposal and the decision of the Assessment Manager was overturned, granting both planning and land division consent.

Court of Appeal Findings

The Assessment Manager subsequently appealed the decision of the ERD Court, primarily arguing:

1. the Commissioner erred in treating the dwelling on Lot 22 as being a lawfully existing dwelling; and
2. the Commissioner erred in considering the quantum departure from the Code requirements for minimum allotment size and frontage.

The Assessment Manager argued that the second dwelling located on proposed Lot 22 was not a lawfully existing dwelling in its own right, and that its use was more akin to that of a ‘granny flat’ or outbuilding. The Court of Appeal however found that the Assessment Manager did not sufficiently raise this as an issue in the ERD Court and dismissed the grounds of appeal that related to this issue.

Despite the significant departure from the minimum allotment size and frontage, the Court of Appeal reasoned that the ERD Court’s treatment of the relevant provisions were appropriate in circumstances where a resulting allotment would be in the form of a battle-axe. Where the Code did not provide specific guidance on battle-axe allotments, it was appropriate for the ERD Court to take guidance from the general Land Division assessment provisions; this did not mean that the ERD Court’s assessment of the Land Division provisions held greater weight than its assessment against the Zone or Subzone.

Upholding the ERD Court’s rationale in relation to Code interpretation, the Court of Appeal held:

“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.”

Contrary to the Assessment Manager’s submissions, the Court of Appeal found that the Commissioner had not ‘ignored’ the policies of the Code and had sufficient and appropriate regard to them in the judgment. Further, sufficient justification was provided as to why the division was acceptable notwithstanding its failure to meet various DPFs in relation to allotment size and frontage.

For more specific information on any of the material contained in this article please contact Alice Tonkin on +61 8 8217 1372 or ATonkin@normans.com.au.