Light Regional Council (Council) is the relevant authority under the Development Act 1993 (Act) with respect to Development Application 313/125/2020, which seeks approval for the construction of ‘Oscar’, a new tourist accommodation building featuring 71 rooms, ancillary dining, welcome lounge, bars, viewing deck, day spa, swimming pool and gym, undercroft carparking, access road, bridge and landscaping at 730 Seppeltsfield Road, Seppeltsfield (DA).
This new facility would be an addition to the historic ‘Seppeltsfield Winery’ complex.
The Act requires the Council to establish an assessment panel (CAP), the functions of which include to act as the delegate of the Council in relation to the assessment and determination of all development applications that are submitted to the Council. The CAP is comprised of 5 members, with 4 independent members (including the Presiding Member) and one Council Elected Member representative. Development applications are not assessed and determined by the Council, rather it is the Council’s delegate, the CAP, that carries out that function, on its behalf.
The CAP members must comply with a Code of Conduct, which is accessible here. CAP members, for example, are not able to approach or discuss with an applicant or representor any application which is either before the panel or will come before the panel at some future time, outside of the panel meeting where the application forms a part of the agenda.
Prior to the lodgement of the DA, Council received preliminary plans and supporting materials in late February 2020 and was asked for an opinion as to the potential characterisation and categorisation of the proposed development that is the subject of the DA. Qualified Council planning staff considered the materials provided, including legal advice, sought verification in relation to that information, and considered that the proposed development was for a development in the nature of tourist accommodation, which is a Category 2 kind of development having regard to the Council’s Development Plan and the Development Regulations 2008 (Regulations). The DA was subsequently lodged in early April 2020.
A category is assigned to a development for public notification purposes. Put simply, there are three kinds of categories, namely Category 1, 2 or 3. Under the Act, Category 1 development requires no public notification. Category 2 development requires public notification to owners or occupiers of adjacent land. Category 3 development requires public notification to owners or occupiers of adjacent land, to persons who, according to the determination of the relevant authority may be affected to a significant degree by the development if it were to proceed, and to the public generally.
The Regulations and/or the Council’s Development Plan may assign a form of development to Category 1 or 2. Any development that is not assigned as Category 1 or 2 will generally be taken to be a Category 3 development. In this case, Council planning staff consider that the proposed development the subject of the DA is for a form of development that is assigned to Category 2 under both the Council’s Development Plan and the Regulations. As a result, under the legislation, only owners or occupiers of adjacent land are entitled to be notified in relation to the DA.
The DA seeks Development Plan consent (which is often referred to as a planning consent). In seeking this consent, the DA must be assessed against the provisions of the Council’s Development Plan and must be determined in accordance with the relevant provisions of the planning legislation (i.e. the Development Act 1993 and the Development Regulations 2008, which is transitioning to the Planning, Development and Infrastructure Act, 2016).
Council, through its delegate the CAP, is required to assess and determine the DA as it has been lodged. The Council is not able to investigate (or require) alternative designs. It is required to assess the merits of the development that is before it.
In mid-April 2020, Council wrote to the then Minister for Planning (the Hon. Stephan Knoll MP) asking whether the State Commission Assessment Panel should be appointed to act as the relevant authority in relation to the DA, and not the Council, given the Council has a contractual relationship with Seppeltsfield through the ‘Bunyip Water’ Scheme and may seek to be involved in a future Public-Private Partnership with Seppeltsfield as a part of regional economic stimulus projects (‘Regional Vision’).
In late May 2020, the Minister, having consulted with the Department of Planning, Transport and Infrastructure, as it then was, advised that the Council should remain the relevant authority in relation to the DA as:
...the Council's Assessment Panel is an independent body capable of making a professional assessment and impartial determination of the application, without being unduly influenced by the Council's existing contractual commitments or by potential commercial obligations the Council intends to enter into through a Public-Private Partnership arrangement.
Accordingly, the Council (through its CAP) remains the relevant authority in relation to the DA under the legislation.
As Seppeltsfield Winery is a State Heritage Place, the DA has been formally referred to the State Heritage Branch (Department of Environment and Water). The CAP must have regard to any comments provided by the State Heritage Branch in relation to the DA. However, if the CAP does not fully adopt the recommendation or any condition proposed by the State Heritage Branch, the State Planning Commission must concur with the CAP’s decision on the DA.
Further technical information, mainly concerning on-site stormwater management and septic system arrangements proposed for the new development was requested and awaited prior to Council undertaking public consultation.
Public consultation with respect to the DA took place between 3 August 2020 and 14 August 2020 and eleven (11) representations were received.
Two (2) of the representors have (through legal representation) applied to the Environment, Resources and Development Court (ERD Court) for a review of the Council’s decision with respect to the category and characterisation (i.e. the nature) of this DA pursuant to the Act. The ERD Court will review the Council’s processing of the DA to date, and it will determine whether the Council has correctly determined the category and the characterisation of the development which is the subject of the DA.
Accordingly, at this stage Council intends to postpone any further consideration of the DA until the review proceedings in the ERD Court have been determined.
Council has advised the Applicant that this is its intent. However, it may still be possible for the Applicant to apply to the ERD Court seeking an order requiring the Council (i.e. CAP) to determine the DA notwithstanding the commencement of the review proceedings.
At the appropriate time, the DA will ultimately be determined by the CAP. The CAP will hear representations and will consider a planning report that will be prepared by a Council officer (who will have qualifications in town planning) which will contain their assessment of the DA against a range of relevant matters that are outlined in the Council’s Development Plan. The report will also consider any responses received from bodies to which the DA has been referred, including for example the State Heritage Branch.