Seriously at Variance Needs to be Just That – Serious

Determining if a proposal is “seriously at variance” with Development Plan policy can be challenging. The implications of such a determination are significant given the South Australian Development Act states that a planning authority must not grant consent to any development application that is seriously at variance.

Woolworths Ltd recently proposed the replacement of a 1960s era supermarket at Brighton, the new building having carparking on the ground floor and the retail component of approximately 3,700m2 at first floor level.

A neighbour appealed against the City of Holdfast Bay’s approval.  With the support of a planning and traffic expert, the neighbour argued that the development was seriously at variance to Council’s Development Plan because it failed to:

  1. have any or adequate regard to the Metropolitan Road Widening Plan Act 1972;
  2. locate the loading area away from sensitive residential land uses and screen it from public view;
  3. discourage commercial and industrial vehicle movements through residential streets/sensitive land uses;
  4. incorporate residential or mixed-use development; and
  5. incorporate small scale specialty retail tenancies.

URPS acted on behalf of Woolworths in the legal action.  We considered previous Court judgements which stated that for something to be seriously at variance it needs to “represent an important or grave departure in either quantity or degree from the Development Plan”.

We also noted the existing local circumstances including that there is an existing operating supermarket on the site (albeit much smaller), the Zone envisages supermarkets as a primary land use and the development proposal achieved many (but not all) of the desired design outcomes envisaged in Council’s Development Plan.

The Court confirmed Council’s determination and our opinion that the proposed supermarket was not seriously at variance.

The Court further clarified how to determine whether a proposal is seriously at variance as follows:

The [planning] issues, singularly or together, do not have the potential to undermine the objectives of the Development Plan for the land, the Zone or the Policy Area. Even if the proposed development departs from the provisions of the Development Plan in all of the ways argued for by Mr Bates [the neighbour], it could not be said that an amendment to the Development Plan would be required before development plan consent could be granted.”