Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd [2023] SASC 107: Supreme Court authority on interpreting the Planning and Design Code
A recent decision of the South Australian Supreme Court has confirmed that, despite significant structural differences between the planning regime under the Planning, Development and Infrastructure Act 2016 (PDI Act) and the former regime under the Development Act 1993 (Development Act), there has been no fundamental change in how a relevant authority is to undertake its assessment of an application for planning consent.
The decision confirms that the approach taken to the interpretation of Development Plans under the Development Act, in which a relevant authority is afforded a significant degree of discretion in its assessment, continues to apply to the interpretation of the Planning and Design Code (Code) with respect to performance assessed development under section 107 of the PDI Act.
The decision is available to read here: Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor [2023] SASC 107.
Background
Rymill House Foundation Pty Ltd, the owner of the land at 100 East Terrace, Adelaide containing the state heritage listed Rymill House (Rymill House), applied to the relevant authority, the City of Adelaide Council Assessment Panel (Panel), for planning consent for a proposed function centre to be located on the Hutt Street frontage of the Rymill House land (Development Application).
Rymill House is situated within the City Living Zone under the Code, with borders to the Capital City Zone on its Hutt Street frontage. It is further situated within the State Heritage Place Overlay (among others).
At its meeting on 30 May 2022, the Panel resolved to grant planning consent to the Development Application. Rymill Park Apartments Pty Ltd (Rymill Park), an adjacent neighbour and representor at the Panel meeting, subsequently initiated judicial review proceedings in the Supreme Court challenging the validity of the decision of the Panel to grant planning consent (Proceedings).
Rymill House, as the respondent, did not participate in the proceedings and abided the event. The Panel participated as an Interested Party.
Key issues under review
Rymill Park brought the proceedings on a number of grounds, which can be distilled into two fundamental contentions:
- that the Panel had erred in reaching its decision by misinterpreting the Code, leading to it taking into account irrelevant factors or failing to take into account irrelevant factors (termed a jurisdictional error); or
- that the manner in which the Panel proceeded to make its decision was unreasonable, and the Panel’s decision itself was legally unreasonable.
Central to establishing those grounds was a determination of the correct principles to be applied to the interpretation of the Code.
Other contentions were that the Panel:
- failed to give proper regard to, or misapplied the relevant principles relating to, the impacts of the proposed development on the heritage values of Rymill House;
- failed to give proper regard to the residential amenity impacts of the proposed development within the City Living Zone;
- made its decision on the basis of landscaping documents that were not before it (and that the final decision therefore lacked sufficient particularity or was irrational); and
- had not undertaken its assessment in accordance with the proper hierarchy of planning principles.
None of these grounds were ultimately established and the application for judicial review was dismissed.
Proper construction of the Code
The most significant contention made against the Panel’s decision was that it had not understood its role according to law in interpreting and then applying the Code to the Development Application before it.
According to Rymill Park, the Code was not to be applied in the same manner as former Development Plans and has a character that is more directive and rigid in its application. It was further submitted that the hierarchy of Code provisions set out under the Rules of Interpretation dictates that, in all instances, Overlay provisions are to be given greater weight than Zone and Subzone provisions.
The Court found that neither of these contentions was correct.
The Code is instead to be understood against the existing body of case law that applied to the interpretation of Development Plans – including, among other decisions, Lakshmanan & Anor v City of Norwood, Payneham and St Peters & Anor [2010] SASCFC 15 and Upham v The Grand Hotel (SA) Pty Ltd and DAC (1999) 74 SASR 557 – which hold that interpretation of planning principles is ‘not merely a mechanical exercise’[1] but in reality entails ‘significant professional judgment’,[2] and that the fundamental ‘outer limit’ on a relevant authority’s discretion remains the ‘seriously at variance’ test.[3]
The hierarchy established under the Rules of Interpretation – which seeks only to resolve instances of inconsistency between provisions – does not change a relevant authority’s decision-making process and it ‘remains for the decision-maker an iterative weighing and balancing exercise guided by the Code’.[4]
It was not established that the Panel had misinterpreted the Code provisions in relation to the heritage, amenity, or landscaping matters, and on the whole, had not conducted its assessment in a way that caused it to fall into jurisdictional error.
Other contentions
The Court found that the contentions raised regarding the improper assessment of heritage impacts, amenity impacts and landscaping details were not sustained.
In particular, the Court concluded that:
- the Panel was comprised of a body of experts, including heritage experts, with sufficient knowledge to assess the evidence of heritage impacts against the Code. It was open for the Panel to conclude that any variance in the proposed development from the provisions of the Code was not serious,[5] and therefore the decision was lawfully made;
- there was no evidence that the Panel simply adopted the recommendations of the agenda report prepared by its delegate without appropriate consideration. Instead, the Panel had openly deliberated the amenity and heritage impacts, and addressed the former by specific insertion of a condition on the operating hours, thereby bringing its ‘own mind to the exercise’ of its planning judgment;[6]
- the landscaping details were subordinate to the primary aspects of the proposed development and recorded in the architectural plans with enough particularity to provide a rational basis for the Panel’s decision.
Important considerations for Panels
It will be of comfort to relevant authorities to know that there has not been a fundamental shift in the “planning world”; the ‘seriously at variance’ test remains the outer limit on a relevant authority’s discretion (with respect to performance assessed development) in accordance with section 107(2)(c) of the PDI Act.
One critical point of interest in this case was that the Panel had not made a recording of its deliberations and further had not adopted specific reasons for granting the planning consent (nor was it required to at law). Overturning the Panel’s decision, as a body of experts well-versed in the exercise of planning judgment, was therefore always going to be difficult to achieve (see, for reference, a similar outcome in Khabbaz & Anor v State Planning Commission & Ors [2023] SASCA 10 which we have previously provided commentary on here).
This case does, however, provide a reminder to assessment panels that, in the absence of third-party appeal rights under the PDI Act, their processes are subject to increased scrutiny. We therefore encourage relevant authorities to seek advice in circumstances where the validity of a decision may be called into question.
For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.
[1] Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor [2023] SASC 107 at [62] (Hughes J).
[2] Ibid.
[3] See Mar Mina (SA) Pty Ltd v City of Marion & Anor [2008] SASC 120.
[4] Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor [2023] SASC 107 at [68] (Hughes J).
[5] Ibid at [97]-[102].
[6] Ibid at [105].
