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Norman Waterhouse

Case study on determining the nature of development: Golfview Investments Pty Ltd v The City of Port Augusta & Anor [2021] SAERDC 29

A recent decision of the Environment, Resources and Development Court (Court) reinforces the importance of accurately characterising the elements of a proposed development before determining the overall nature of the development.

In a decision of his Honour Judge Durrant, it was found that the relevant Council failed to correctly characterise all elements of a proposed petrol filling station. Accordingly, it was found that the proposed development was incorrectly assigned as a Category 2 form of development (under the Development Act 1993) when elements of the proposal should have been assigned to Category 3.

Despite this case being concerned with characterisation under the repealed Development Act 1993 (Development Act), the findings continue to have relevance to determinations made by a relevant authority under the Planning, Development and Infrastructure Act 2016 (PDI Act).


The subject land comprised an undeveloped allotment located off the Stuart Highway with a separate frontage to Daw Street, Port Augusta. The land was formerly located within the Highway Services Zone of the Port Augusta (City) Development Plan (2016 consolidation) (Development Plan).

The Council approved an application by Port Augusta Truck Stop Pty Ltd for a proposed petrol filling station with incidental or ancillary elements and accordingly assigned it as a Category 2 form of development pursuant to the Development Plan.

This decision was challenged by the applicant to the Court proceedings, Golfview Investments Pty Ltd (Golfview), which contended that the development should have been assigned to Category 3.

The Council did not participate in the proceedings.

Case put by Golfview

Golfview submitted that the proposal, assessed as a whole, could not be considered a petrol filling station with incidental or ancillary elements on the basis that the proposal also contained elements that were distinct forms of development in their own right.

Of particular relevance was a proposed acoustic barrier that was to be installed for the benefit of neighbouring properties, which Golfview argued was not an essential or intrinsic component of a petrol filling station. Likewise, Golfview submitted that proposed external road alterations (consisting of new crossovers and access points) were more than merely incidental works and were not integral to the function of the proposed petrol filling station.

Golfview submitted that the Council had failed to identify and properly assess these elements and therefore erred when assigning the development to Category 2.


The Court found that the Council erred in assigning the proposed development to Category 2 rather than Category 3. In arriving at this conclusion, his Honour emphasised that “all development must be assessed on its own facts and circumstances”,[1] taking into account several principles that are well established in case authorities. Those principles are, in summary:

  1. some land uses are integrated or inextricably bound up (neither one thing or another);
  2. activities can be either associated, ancillary or subservient to the primary use and thus take the character of that use; and
  3. a development can subsist absent particular elements or constituent parts or uses contained in the development application.

In applying these principles, the Court found that some elements of the proposed development were truly integrated with the proposed use, such as the fuel stations, canopies, shop and control building, and the separate filling areas for cars and trucks.

Other elements, such as the stormwater and pollutant management systems, were ancillary or incidental to the proposed petrol filling station such that they could reasonably be considered to take on the same character. This was because, without those elements, the proposed development would not be able to safely operate.

On the issue of the vehicle crossovers and road works, these elements were most certainly development, but not development of the subject land and could not be considered as associated with the proposed development of the petrol filling station.

Similarly, the acoustic fences were not integral to the proposed development and were not associated or ancillary to it. Having regard to the nature, height, scale and construction of the proposed fences, they were determined to be a separate development and could not be construed as associated with the petrol filling station.

Accordingly, the Court held that the Council erred when it assigned the ‘whole’ of the proposed development to Category 2 when these elements were in fact Category 3 forms of development.

Application to PDI Act

Whilst the assessment of development applications against the provisions of a Development Plan for the assignment of public notification categories is no longer relevant under the PDI Act, an assessment of the nature of a development proposal for the purposes of determining the correct assessment pathway remains an essential step in the verification of an application.

As such, the proper determination of all elements is still of paramount importance to the assessment and correct categorisation of development into accepted, code assessed, or impact assessed development and the assignment to the appropriate assessment pathway.

Failure to correctly determine the nature of a development at the verification stage may result in having a development authorisation liable to be set aside under review, pursuant to Section 202(1)(g) of the PDI Act. Consequently, the implications of this case remain significant to relevant authorities in the performance of duties under the PDI Act.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or, or Nicholas Munday on +61 8 8217 1381 or

[1] Golfview Investments Pty Ltd v The Corporation of the City of Port Augusta & Anor [2021] SAERDC 29 at [63].

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