Garden College v City of Salisbury [2022] SAERDC 10 - Planning & Design Code, interpretation and public notification

On 24 June 2022, the Environment, Resources and Development Court (Court) handed down a decision in the case of Garden College v City of Salisbury [2022] SAERDC 10. This decision is only the second to consider the Planning & Design Code (Code), and the first to do so in relation to public notification.

Facts

In 2021, Garden College lodged a development application seeking planning consent to expand its Parafield Gardens campus by incorporating students and teachers from another campus. The Parafield Gardens campus is located within a General Neighbourhood Zone under the Code.

The development application was classified as alteration and additions to the existing educational establishment which included providing additional learning areas, relocating existing structures, providing new toilet facilities, reconfiguring and expanding the existing car park, fencing and undertaking landscaping and stormwater works.

Relevantly, the application included stormwater and landscaping elements located within three metres of a boundary shared with residential land use. Further, the total number of car parking spaces required by Table 1 – General Off-Street Car Parking Requirements (Car Parking Table) in the Code was 101, comprising 42 spaces for full time employees and 59 spaces for drop off and pick up of students. Garden College proposed an on-site car park of 47 spaces with the remaining 54 spaces to be provided in non-designated, on-street parking spaces situated within 300 metres of the site.

On 2 July 2021, the relevant authority determined that the application required public notification. The basis for the decision was that the application was not a specified class of development excluded from the operation of the public notification provisions by the Code. Specifically, the proposal did not meet the relevant boundary set back and car parking criteria specified in the Code in the General Neighbourhood Zone DTS/DPF 1.5 (DTS/DPS 1.5), which criteria must be satisfied to avoid an exception in Table 5 Procedural Matters – Notification (Notification Table).

Garden College appealed against the notification decision.

On Garden College’s interpretation of these criteria, the development application satisfied all of the requirements of DTS/DPS 1.5 and was therefore a specified class of development excluded from public notification by the Code. On the Council’s interpretation, Garden College’s application did not satisfy the criteria for either the boundary set back or car parking and therefore public notification was required.

Issues on appeal

The specific questions for determination by the Court may be summarised as follows:

1. Does the boundary set back criteria in General Neighbourhood Zone DTS/DPF 1.5 (a) relate only to alterations and additions involving buildings?
2. What is the proper interpretation of General Neighbourhood Zone DTS/DPF 1.5 (d) having regard to the use of the term “off-street vehicular parking”?
3. What is the proper meaning to be given to the term “spaces… for a pickup/set down area” in the Car Parking Table?

Findings

In relation to the setback issue, the Court held that the provisions of the Notification Table are directed at “development” as it is defined in the PDI Act and not more broadly by extending it to the application for planning consent and any other element incorporated in the application. Given that “development” is defined to include “building work”, the Court held that the meaning of DTS/DPF 1.5 (a) is not confined to the set back of just ‘buildings’. However, as the elements relating to stormwater and landscaping within the three metre set back boundary were not considered as “development” within the meaning of the PDI Act, the Court determined that Garden College had satisfied the set back criteria within DTS/DPF 1.5 (a).

The Court next looked to the questions about car parking. Having regard to the criteria in the DTS/DPF 1.5 (d) and the Car Parking Table, the term “off-street vehicular parking” was held not to be confined to “on-site car parking” but was to be read contextually and consistent with the evident planning purpose underlying these criteria. The Court further determined that the expression “spaces… for pickup/set down area” is to be read straightforwardly, as meaning the spaces comprising an area available for the purpose of pickup and set down of students with any such area or areas being required to be specifically marked as a pickup/set down area available for this purpose. Importantly, while the proposal indicated sufficient available spaces for pickup/set down within the public realm, there was no specifically marked area for this purpose.

The Court determined that public notification was required as Garden College had not satisfied the provisions of the Notification Table relating to sufficient car parking availability. Accordingly, Garden College’s development application did not satisfy all of the criteria comprised in DTS/DPF 1.5 and was therefore development which required public notification. The appeal was dismissed.

Approach to public notification

In reaching its decision, the Court considered the general principles regarding public notification of performance assessed development pursuant to section 107 of the PDI Act. Council submitted that the “default position” under the PDI Act is that performance assessed development must be publicly notified and that, in the event of a constructional choice, the one which favours public notification is to be preferred.

The Court disagreed holding that there is no presumption in favour of public notification and, having regard to the context and purpose of the statutory provisions, a neutral approach is more appropriate.

The straightforward operation of the PDI Act dictates that a performance assessed development must be publicly notified unless it is a specified class of development excluded by the Code.

Interpretation of the Code

Significantly, the Court discussed the proper approach to Code interpretation.

The Court applied the modern principles of statutory interpretation to the Code, which principles require consideration of the overall text, context and evident purpose of the instrument. The interpretation which best achieves the purpose or object of the instrument is to be preferred to any other interpretation, whether expressly stated or not. In this case, the preferred interpretation of “spaces…for pick up/set down area” (as requiring specific markings, to differentiate from ordinary on-street parking spaces) was influenced by its context, including PO 5.1 in the Car Parking Table, which sought “specifically marked accessible car parking places”.

The Court went on to state that where a range of possible meanings exist, the purposive approach remains, in that the court must distil from the text of the relevant provision its intended meaning, having regard to its context and purpose.

Subsequently, when considering interpretation of the Code, the Court stated:

In our view, it is not a matter of just taking a practical approach to the interpretation of the relevant criteria in the Code, particularly for a procedural matter. Rather, it is a matter of taking the well established approach to statutory interpretation that involves giving regard to the text, context and statutory purpose of the relevant provisions.”

The Court confirmed that satisfaction of DTS or DPF criteria does not derogate from the relevant authority’s discretion to determine the outcome on a merits assessment against all relevant provisions of the Code, including relevant Performance Outcomes and Desired Outcomes.

Take Home Message

While the circumstances of this case are specific to a development application related to an educational establishment, the Court’s commentary surrounding the proper interpretation of the Code is valuable in assisting a correct reading of the Code.

Ultimately, regard must be had to the text, as well as the evident context and purpose of the relevant Code provisions.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au or Alice Tonkin on +61 8 8217 1372 or atonkin@normans.com.au.