Mark Henderson Natasha Jones Michael Kelledy Victoria Shute Cimon Burke Chris Woodward Tyler Johns Philippa Metljak Chris Woodward Tracy Riddle Emily Nankeville HTML Map

Lawyers for local government

Zweck v Town of Gawler (No 2) [2016] SAERDC 33 – Further Guidance from the ERD Court on the Effect of Land Management Agreements (October 4th, 2016)

Last year, the Full Court of the Supreme Court in Zweck v Town of Gawler [2015] SASCFC 172 made a number of important findings concerning Land Management Agreements.  You can read the detail of these findings here.

One such finding was that the mere fact that a Land Management Agreement precludes a landowner from undertaking a particular development is not an absolute barrier to the grant of development approval for that development.  The Full Court declined to determine how much weight an LMA should be given in the assessment of a development application which is contrary to its terms.

Subsequent to the Full Court decision, the Environment, Resources and Development Court was required to consider the weight to be attached to the LMA in the assessment of Mr Zweck’s development application which proposed development that was contrary to it.

On 20 September 2016, the ERD Court delivered its long-awaited judgment in this regard.

The decision in Zweck (No 2) provides useful guidance (but not a definitive position) on this issue. The key outcomes of this judgment are set out below:

  1. the rationale behind a Land Management Agreement (that is, the reason for the Agreement being entered into in the first place) may be considered by the Court and a change in that rationale may indicate that the requirements of the Land Management Agreement should no longer apply. Such rationale will be given more weight by the Court where the rationale is explicitly stated in the Land Management Agreement. As a result, it is important when preparing Land Management Agreements to provide a detailed background of the reasons for entering into the Agreement;
  2. in considering the weight which is to be given to a Land Management Agreement, the Court found that, whereas the Development Plan deals with the land in general terms on a zone-wide basis, the Land Management Agreement provides site-specific requirements for a particular parcel of land. The more particular requirements under a Land Management Agreement may be seen as reinforcing, in a site-specific sense, the general policy in the Development Plan; and
  3. the Court did not consider circumstances where the requirements of a Land Management Agreement conflict with the policy in a Development Plan (for example, as a result of subsequent material amendments to the Development Plan). This issue remains a live one, however, the rationale that the Court applied, as well as sections 57(2a) and 57A(3) of the Development Act 1993,  suggest that the policies within a Development Plan should take precedence over any conflicting requirements in a Land Management Agreement.

In conclusion, for your general interest, the ERD Court in Zweck (No 2) upheld the Council’s decision and determined against Mr Zweck, meaning that he did not obtain his land division consent for agricultural land located in a Rural Zone.

For further information regarding the judgment in Zweck (No 2) or in respect of Land Management Agreements generally, please contact Chelsea Lucas on 8113 7111 or at clucas@kelledyjones.com.au.