ST ANN'S COLLEGE v CORP CITY OF ADELAIDE & RENTON No. SCGRG-99-940 Judgment No. S479 [1999] SASC 479

The provisions of the Development Plan are not to be construed like a statute. A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. The plan must be considered as a whole for the purposes of determining its purpose and intent. When Principles 23 to 26 are considered as a whole, it can be seen that in this instance the purpose and intent is to prescribe standards for development on the site of local heritage items as well as development on sites adjoining the local heritage item.

The other ground of appeal concerned the intended character of the R.20 Precinct and, in particular, what the Plan describes as its "townscape context". The relevant provisions concerning the desired character of the precinct state:

"The Melbourne Street West Precinct should continue to be the focus of consulting rooms and office development in Lower North Adelaide. Contemporary interpretation of traditional building forms may be used and the prevailing low-scale townscape character, established by former residential buildings set-back from the street in landscaped grounds, should be retained. The public environment of Melbourne Street should be upgraded to enhance the character and amenity of the Precinct. While the significant volume of both through and local traffic will continue, pedestrian amenity and safety in the Precinct should be maintained at a high level."

The provisions relating to the Precinct also expressly recognise the contribution made by the combination of these four (now three) houses to the character of the townscape in Melbourne Street at its western end. That appears later in R.20 and reads:

"Townscape Context Development should contribute to the creation of an attractive and cohesive townscape characterized by contemporary architecture which complements the existing traditional residential scale and character of Melbourne Street and Lower North Adelaide as a whole. A variety of architectural expression and finishes may be appropriate but the use of brightly coloured, black, or highly reflective surfaces should be avoided. Particular care should be taken with the design, bulk and siting of new buildings to ensure that the amenity and character of adjoining Precincts are not diminished. Towards the western end of the northern Melbourne Street frontage the townscape character is established by a small group of identical stone cottages of consistent scale, form and siting. This townscape should be conserved through the retention and restoration of these buildings. Development should be by rear infill of a compatible scale and character. On Melbourne Street, development should be of a high standard of design appropriate to its frontage on one of the City's major shopping streets."

Although the contribution of the four houses to the townscape is identified in this way, only one of the houses, the house at 288 Melbourne Street, is identified as a local heritage item, that is to say, a building which should be retained and enhanced by development in the manner prescribed by Principle 26: see the heading "Local Heritage Items" in R.20.

The ERD Court concluded that the proposed development, whatever its architectural merits, had little, if anything, in common with the streetscape at this end of Melbourne Street. Mr Hayes QC submitted that the ERD Court had erred in its approach, in that it failed to give any or sufficient weight to that aspect of the desired future character of the R.20 Precinct that seeks development which contributes to "the creation of an attractive and cohesive townscape characterised by contemporary architecture which complements the existing traditional residential scale and character of Melbourne Street and Lower North Adelaide as a whole". He submitted that the ERD Court had placed too heavy an emphasis upon a survey of buildings in the precinct conducted by Mr Bechervaise, that emphasis being at the expense of evidence from two other expert architects.

The criticisms are misplaced. It is apparent from the reasons of the ERD Court that it had regard to all of the relevant provisions of the Development Plan. It had regard to the relevant provisions of the R.20 Precinct. The court weighed the evidence from all of the architects. It was careful not to allow itself to be drawn into questions of architectural merit or taste and it was at pains to ensure that it determined the issues by reference only to the relevant provisions of the Development Plan. It was open to it to accept, as it did, the evidence of Mr Bechervaise. It was also open on the evidence to conclude that the proposed development was not consistent with the streetscape at the end of Melbourne Street.

At times, the argument presented by Mr Hayes QC suggested that the real complaint of the College was with the planning judgment which the court had made on this question. As a general rule, the court will not examine such issues. It is well settled that this court will interfere with the ERD Court's conclusions upon essentially planning issues in exceptional cases only. The court does not sit to hear argument as to pure planning issues unless the ERD Court has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. In other words, this court is reluctant to substitute its planning opinion for that of the ERD Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles: Ampol Road Pantry Pty Ltd v City of Brighton (1983) 62 SASR 165 at 173. The decision of the ERD Court in this case does not in any way a call for any interference by this court with the determination of the planning issues. The issues were finely balanced. It cannot be said that the decision of the ERD Court was not a decision which could not reasonably have been reached.

The question whether the ERD Court had erred in its approach was, I think, a question in which it would have been proper to grant leave to appeal. However, for the reasons above, I would dismiss this appeal.