Code interpretation, and the Digital Planning System, under scrutiny

In a recent decision, the Environment, Resources and Development Court (Court) upheld a decision of the Town of Gawler Assessment Panel to refuse planning consent to a proposed childcare centre in an Open Space Zone.

Of significance, the judgment of Commissioner Rumsby provides welcome insight on important principles of Code interpretation and application including, amongst other things (in the context of the OSZ):

• what assistance may be gained from the desired outcome

• the meaning of the phrase ‘…associated with or ancillary to…recreation facilities’

• what inferences can be drawn from limited lists of deemed-to-satisfy or restricted forms of development

• the relevance of policies in ‘like’ and neighbouring zones.

Facts

Evanston South Pty Ltd (Evanston South) sought planning consent to develop a childcare centre within its housing estate known as ‘Aspire’. The subject site – situated in an Open Space Zone (OSZ) under the Planning & Design Code (Code) – was originally approved as a public reserve to be developed with an informal fitness circuit and recreational facilities.

The proposed development was a performance assessed development in the OSZ, and was refused consent by the Town of Gawler Assessment Panel (CAP). Evanston South appealed against the CAP’s decision.

In the appeal, the central issue was the suitability of the proposed land use in the OSZ.

The OSZ contemplates, amongst other things:

• DO 1 - Areas of natural and landscaped open space which provides for biodiversity, tree canopy cover, urban cooling and visual relief to the built environment for the health and enjoyment of the community.

• PO 1.1 - Development associated with or ancillary to the provision of unstructured outdoor passive and active recreation facilities.

Contentions of the Parties

Evanston South argued the proposal was not ‘seriously at variance’ with the Code and is a use that is reasonably ‘associated with’ the recreation facilities envisaged in the OSZ. It submitted the words ‘associated with’ envisaged development involving a compatible or beneficial use that is appropriate with the open space and circumstances of the land.

Evanston South further argued that DO 1 helped in guiding the application of PO 1.1, and opens up the range of activities, or forms of development, that could serve the OSZ goals beyond the prescribed recreational activities.

The CAP submitted, simply, that the proposal failed the land use test. It argued there was no support for a childcare centre to be developed in the OSZ. For land in private ownership, the OSZ seeks to prevent any future development which may prejudice the achievement of the public open space goals.

The CAP argued that irrespective of the community benefits which may be derived from the development, a childcare centre was a discrete use of the land that does not fall within the narrow scope of intended forms of development in the OSZ.

Decision

The Court held that in circumstances where the intent of the Code is made adequately clear, a departure should align with the desired outcomes generally, or be merited based on the specific circumstances of the land and its surrounds.

The Court determined that there were no unique circumstances on the subject land which would warrant a departure from the OSZ desired outcome, and that the proposal simply did not provide for a natural or landscaped open space area.

In dismissing the appeal, the Court found that while the proposed childcare centre ‘could happily co-exist alongside the reserve’, the development did not align with the overarching goals of the OSZ.

Reasoning

1. Preliminary Considerations

• Before turning to the specifics of the case, the Court reiterated that the Code is a form of delegated legislation which, according to authority, must be interpreted ‘…by reference to its text, context and evident purpose…’.

• The Court also passed comment on aspects of the digital planning system, including the lack of reliability in terms of relevant Code provisions as identified by the portal, the difficulty navigating SAPPA (in the context of reviewing the geographic distribution of zones, subzones and overlays), and the impracticality of ‘browsing’ the electronic Code. In a withering assessment, the Court said:

‘Contrary to the Objects of the Act, the digital planning system is not simple and easily understood.’

2. Assistance to be gained from the desired outcome (DO)

• The CAP submitted that DO 1 not only set the overarching objective which frames and informs the OSZ, but that it also provides guidance when assessing the merits of a development.

• On the other hand, Evanston South argued that the OSZ is a generic zone, and DO 1 did not align with the circumstances of the subject land, and provided little genuine assistance in assessing the merits of the proposal.

• In its decision, after having regard to the Rules of Interpretation in the Code, the Court said in general terms that:

‘…the DO sets the overarching vision for the zone and also frames the way in which the zone POs and DTS/DPFs are to be applied. It also establishes a policy position, in itself, against which the merits of a development ought to be measured.’

• More specifically in its assessment of the proposal against the Code, the Court applied ‘greater weight to the overarching Zone goal’, even in light of the proposal satisfying PO 1.1 to some extent.

• The Court also said the existence of features or activities on the land which do not accurately reflect the zone goals

‘…does not, however, diminish them as an outcome to strive for. Moreover, if they are unattainable in the circumstances…they cannot simply be ignored and replaced by some other goal. The land must instead be rezoned.’

• Finally, the Court said the Zone purpose and its application is not diminished towards the margins of the Zone, at least in terms of land use (as distinct from amenity impacts which may be different on the margins of a zone).

3. Meaning of “…associated with or ancillary to…”

• In so far as PO 1.1 in the OSZ seeks that ‘Development is associated with or ancillary to the provision of unstructured outdoor passive and active recreation facilities’, the Court held that the term ‘associated with’ must mean more than, and must add to, the phrase ‘ancillary to’.

• In context, the Court said it meant:

‘…a kind of development which can be expected to be found with recreation facilities or open space areas. Such activities will be expected to either support, or happily co-exist with, recreation areas – that is, they require a common set of conditions and are complementary in purpose without being for the same purpose.

…

An associated development in the OSZ must, in my view, be connected with and complementary to recreation facilities and also be secondary or subservient, rather than, necessarily, part and parcel of such facilities.’

• In that regard, the Court seemed to agree with Evanston South’s argument that, to some extent, a childcare centre may be considered to be adequately connected to the reserve, or ‘associated’ per PO 1.1. Nevertheless, that was not sufficient to warrant consent given its evident tension with the express terms of the DO which carried greater weight in the assessment.

4. Guidance of anticipated / restricted land uses

• The Court discussed the fact that the OSZ provides little specific guidance as to the kinds of development that were contemplated or, conversely, restricted.

• While the Court accepted that the inclusion of various types of development on lists of intended or inappropriate development is not determinative, in the circumstances, a more comprehensive list of contemplated development would have assisted the Court in framing how its discretion ought to be exercised.

5. Relevance of neighbouring and similar zones

• Importantly, the Court was also prepared to have regard to, and compare the provisions of the OSZ with, policies in ‘like’ and neighbouring zones, including the Community Facilities Zone (CFZ), Recreation Zone (RZ) and the Master Planned Neighbourhood Zone (MPNZ).

• The fact that, first, the OSZ appears far more restrictive than the RZ and, second, the neighbouring CFZ and MPNZ expressly list a wide range of development including ‘pre school facility’ in DPF 1.1, were of some relevance to the Court in construing the scope and intent of the OSZ with its narrow focus on the primarily intended outdoor recreation facilities.

Take Away Messages

This case, while specific to the OSZ and a proposed childcare centre, provides valuable insight into important aspects of Code interpretation and application.

Importantly, the judgment supports the idea that the stated Desired Outcome/s in a zone are an important planning policy tool in their own right.

Further, assistance may be gained by other aspects of the Code, including the provisions of other ‘like’ and neighbouring zones, as well as lists of deemed-to-satisfy and restricted development.

Subject, of course, to the outcome of any appeal, the judgment is likely to be of considerable interest to all planning practitioners, and it may also have resonance in the context of the Expert Panel’s Planning System Implementation Review.

Norman Waterhouse is proud to continue to provide support to our clients in navigating the complex and evolving Planning & Design Code and the digital planning system.

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.