Operational observations Council Assessment Panels can derive from Khabbaz & Anor v State Planning Commission & Ors [2023] SASCA 10

On 16 February 2023 the Court of Appeal (Court) delivered its decision in Khabbaz & Anor v State Planning Commission & Ors [2023] SASCA 10 (Khabbaz Appeal), which was an appeal against the decision of His Honour Justice Parker of the Supreme Court in Khabbaz & Anor v State Planning Commission & Ors [2022] SASC 11 (Khabbaz Judicial Review).

Both the Khabbaz Appeal and Khabbaz Judicial Review involved extensive, complex and overlapping grounds of judicial review including regarding the role of a relevant authority in the determination of consent and seriously at variance decisions, and contextual matters regarding the interpretation of the then Adelaide (City) Development Plan (Development Plan).

This article focusses only on the Court’s consideration of matters concerning the operation of the State Commission Assessment Panel (SCAP) (as delegate of the State Planning Commission), as these Court’s findings are important general observations for Council Assessment Panels (CAPs) also.

Background of Case

Rymill Park Apartments Pty Ltd and the Trustee for Rymill Park Apartments Unit Trust (RPA) had secured Development Plan consent (as it was then) from the SCAP for a building at 2-6 Hutt Street, Adelaide (namely on the south-eastern corner of the intersection of Hutt Street and East Terrace). The proposed building was 53.9m in height and located in the Capital City Zone of the Development Plan, and this zone had a maximum building height of 22m. The SCAP had determined that the development was not seriously at variance with the Development Plan.

Raymond Khabbaz and RJK (SA) Pty Ltd (RJK) were the applicants for judicial review of the SCAP decisions (and other decisions made by the Minister for Planning relating to an amendment to the Development Plan, but which latter decisions were not further pursued in the Khabbaz Appeal). RJK had interests in a dwelling at East Terrace, Adelaide which was very close to the subject site, albeit in a different zone. Being unsuccessful on all of the grounds pleaded in the Khabbaz Judicial Review, RJK appealed to the Court of Appeal.

Operations of the SCAP

Some grounds raised in the Khabbaz Appeal related to whether the SCAP took into account necessary relevant considerations, because at law a planning authority has an obligation to assess a proposed development according to law, taking into account all relevant considerations. Of relevance in this case was whether errors and/or omissions in the Agenda report (commissioned by the SCAP) had led to an error in the eventual decision making of the SCAP, including in that the SCAP had simply adopted the reasoning set out in that Agenda report.

It was alleged that the Agenda report contained deficiencies including:

• failure to address relevant provisions and zones within the Development Plan;
• failure to identify a ‘locality’;
• incorrect reference to a previous version of a Development Plan provision that had since been amended; and
• erroneous assertions and analysis as to the guidance in the Development Plan regarding building height.

The difficultly for the Appellants was that they lacked the evidence required to demonstrate to the Court that the SCAP decision was so affected by the contents of the Agenda report so as to lead to a procedural error. The SCAP had not called any evidence in the Khabbaz Judicial Review to establish the reasons for the SCAP’s decision. Thus, the Appellants were unable to succeed on these grounds as they could not discharge their onus to establish that the SCAP did not give consideration to the relevant matters and the Court was unwilling to infer that, despite where no member of the SCAP gave oral evidence, there was still no good reason for the decision made by SCAP.

The Court recognised it was the long-accepted practice that tribunal bodies such as the SCAP did not publish reasons for their decisions, likely due to significant practical consequences, and thus it was not unusual in this instance that none existed. It was not the operating procedure for the SCAP to record in detail in the minutes the entire decision-making process undertaken by the SCAP, except to record the ultimate decision as collectively determined by the SCAP members and a short explanation as to why it was approved. Thus again, the absence of more detailed material was not considered problematic.

There was additional material before the SCAP, beyond the Agenda report alone, and which material included (but was not limited to) reports from various external planning consultants acting for the either RJK or RPA. Collectively, these reports did not replicate the errors and/or omissions allegedly contained in the Agenda report. The Court found that the SCAP had to have regard to such additional material. Because of the existence and content of this material, the Court found that any errors and/or omissions that may have existed in that Agenda report should not be taken to have impacted upon the decision making of the SCAP, regardless of whether the SCAP had commissioned the preparation of the Agenda report.

Further, because the members of the SCAP had planning expertise, the Court found that these members were expected to exercise their own independent planning judgement on matters relevant to the development assessment. Therefore, it should not be imputed that errors and/or omissions in the Agenda report should necessarily be reflected as errors in the later determination of the SCAP.

The Court made these findings despite the Appellants indicating that the eventual resolution of the SCAP was made in the exact terms as the recommendation in the Agenda report.

Observations for CAPs

Similar to the SCAP, CAPs are predominantly comprised of technical experts including planners with experience and expertise in development assessment. Similarly, CAPs consider Agenda reports (usually prepared by council planners) to aid in the decision-making process of the CAP, but which are often accompanied by reports of consultant planners acting for the applicant or a representor. CAPs generally do not have a practice of providing detailed decisions or evidence of decision making in their minutes, other than the recording of the resulting collective decision. If CAPs did record decision making in greater detail, including but not limited to the recording of meetings, or file notes produced by CAP members, such information would likely be sought by applicants for judicial review under the Freedom of Information Act 1991 (SA) to and possibly be used as evidence in such proceedings.

If your CAP would like advice concerning operational matters generally, or specifically in relation to the Khabbaz Appeal, please contact Rebecca McAulay on +61 8 8210 1278 or RMcAulay@normans.com.au.