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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 22 June 1999
Judgment of His Honour Judge Bowering, Commissioner Hodgson and Commissioner Wallman
Respondent CITY OF WEST TORRENS:
Counsel: MR K TREDREA - Solicitors: NORMAN WATERHOUSE
Respondent ANTON, JOLANDA & MARINO IVANCIC:
Counsel: MR B HAYES QC - Solicitors: MCKINLEY LAW
ERD-98-1198
Judgment No. OE2
15 March 1999
FAIRMONT HOMES PTY LTD v CITY OF WEST TORRENS
& IVANCIC
1 Abutting the northern side of Burbridge Road, Brooklyn Park, in the City of West Torrens ("the Council") is a generally rectangular parcel of land ("the subject land") having an area of 4.221 hectares. The northern boundary of this land abuts Lipsett Terrace. It is the whole of the land comprised in two Certificates of Title: Register Book Volume 1725 Folio 56, being for a portion of Section 99 and portion of Allotment G in the Hundred of Adelaide, and Register Book Volume 5405 Folio 767 covering Allotment 992 shown on Deposited Plan 47234.
The Subject Land
2 The subject land once formed part of a Boys' Home operated by the Roman Catholic Archdiocese of Adelaide. From about 1969 until recently, it was a major part of the playing fields of the Salesian College, a private secondary school.
3 This college has for some time been closed. Its main buildings, together with just over two hectares of land, immediately east of the subject land and with primary access off Lipsett Terrace, are now occupied by the multi-denominational Adelaide College of Divinity. The subject land, being no longer required, has become available for purchase and development. Overall, this land has a frontage of 203.79 metres to Burbridge Road and a frontage of 185.67 metres to Lipsett Terrace. Its depth between these frontages is at least 207 metres. The eastern boundary, which is not fenced, has a step in its alignment. Fencing along both road frontages is of cyclone mesh, approximately two metres high. Back and side fences of abutting residential properties run along the western boundary.
4 The land has a generally flat surface, falling slightly to the south. For the most part it is grassed, with large eucalypt trees along the northern, western and southern boundaries and next to buildings at the northern end, which buildings were at one time associated with sporting activities and maintenance.
The Development Application
5 Upon entering into a conditional contract to purchase the subject land, Fairmont Homes Pty Ltd applied to the City of West Torrens on 26 March, 1998 for development approval to create, by division, 58 allotments, designed to be suitable for residential use, and associated roads and reserves. This application, referred to thereafter as Development No. 211/D016/98, was dealt with by the Council as a Category 3 development, with reference to Section 38 of the Development Act 1993 ("the Act"). In response to public notices that the application for consent had been made, the Council received a number of representations. One of these was from Anton, Jolanda and Marino Ivancic, all of whom reside at 60 Lipsett Terrace ("the Ivancic land"). The Ivancic land is owned by Mr Anton Ivancic and Mrs Jolanda Ivancic, his wife. It abuts the north-western corner of the subject land.
6 The Council also received from the Development Assessment Commission copies of reports which the Commission had obtained from state government agencies, including the Environment Protection Authority ("the Authority"), the South Australian Water Corporation, the Passenger Transport Board, the Commissioner of Highways and the Surveyor-General. Reference to the Environment Protection Authority was made in accordance with Section 33 of the Act because the development involved a division of land into 50 or more residential allotments: see item 7(7)(b) of Schedule 21 to the Development Regulations 1993 ("the Regulations"). The Authority commented on matters of stormwater management, impacts from aircraft noise and the prospect of the land being contaminated. The South Australian Water Corporation said it was necessary for the developer to satisfy that corporation's financial and easement requirements for the provision of water supply and sewerage services, but did not specify what these were. The Commission itself did not comment on the proposal, but stated three requirements which, pursuant to Section 33(1)(c) of the Act, were to be attached to development approval.
7 In July, 1998, an amended proposal plan of division was submitted to the Council. The Council responded by putting alternatives to this amended proposal to Fairmont Homes. The company was not prepared to accept these alternatives. Mr Stuart Main, of Stuart Main & Associates, solicitors acting for the company, applied to the Court for an order directing the Council to decide the application at its meeting in mid-September. The Court refused this application on 11 September, 1998: Fairmont Homes Pty Ltd v City of West Torrens, ERDC No.1118 of 1998; but in any event, the Council determined the proposal on 15 September, 1998, resolving that development approval be refused.
8 Attached to the decision notification form were the Council's reasons for "refusal of development plan consent", expressed in the following terms:
"1. The absence of a vehicular road access to the development site off Burbridge Road will result in an adverse impact on the amenity enjoyed by residents in Lipsett Terrace because of the significant increase in traffic volumes to be introduced into Lipsett Terrace and the consequent level of traffic congestion likely to be experienced in Lipsett Terrace.
2. Council considers that a landscaped buffer reserve is required to be provided along the frontage of the site to Burbridge Road for the purposes of enhancing the appearance of the site from Burbridge Road and to compliment [sic] and screen the sound attenuation fence proposed to be erected by the developer along this boundary.
3. Council considers that the reserve adjacent to Lipsett Terrace should be relocated to the north western corner of the site to overcome the adverse impact on the character and amenity of the locality caused by the proposed reserve location, and to preserve the existing amenity enjoyed by the existing residents living in the adjacent residential flat development on the western side of the site and by residents overlooking the reserve in Lipsett Terrace."
The Appeal
9 Fairmont Homes Pty Ltd appealed this decision, stating that "The proposed development complies with the City of West Torrens Development Plan." It also disputed the reasons for refusal.
10 A conference, subsequently held, between the appellant company, the Council and A, J & M Ivancic, joined as the second respondents to the appeal, did not produce a settlement. Accordingly, the appeal proceeded to a hearing.
11 The Court took a view of the subject land and of the surrounding area in company with representatives of the parties. Mr S Henry appeared for the appellant company, Mr K Tredrea for the respondent Council and Mr B Hayes QC for the second respondents. Evidence was called from Mr AM Rumsby and Dr S Gupta, town planning consultants, Mr MF Young, a consulting engineer in traffic and transportation matters and Mr TP Johnson, a technical officer on the Council's staff. Mr MG Story, Manager of Planning and Development Services and a town planner, and Mr GA Cirelli, also a town planner, both in the employ of the Council, gave evidence under subpoena. All of these expert witnesses had appropriate experience and qualifications. Evidence was also given by Mr M Ivancic, one of the third respondents, Ms LM Loro, Mrs CM Johns and Mr KJ Hall, all of whom live along Lipsett Terrace.
The Proposal
12 The amended proposal plan, dated 24 June, 1998, and prepared by Alexander Symonds, Surveying Consultants, was the subject of the decision of the Council appealed against. This plan showed the subject land divided into 58 allotments, ranging in size from 323 square metres to 1,001 square metres, and mostly having frontages between 12.5 and 20 metres wide and depths of 30 to 32 metres. At the hearing, an amended plan was produced by the appellant (Exhibit A2) showing 61 allotments, the increased number resulting from partition of the two largest allotments previously proposed, with minor adjustments being made to the size of some allotments. Exhibit A2 shows all of the proposed allotments as having access solely from new roads, variously 12 and 13 metres wide overall, connecting, at two points, to the southern side of Lipsett Terrace. All vehicular access to Burbridge Road is to be prevented, in part by a narrow strip of reserve to be vested in the Council between new allotments and the southern boundary of the subject land, and in part by small rectangular reserves at the southern ends of the eastern and western internal roads. A generally rectangular reserve, with an area of 4,923 square metres, is to be located centrally along the boundary of the land with Lipsett Terrace. The existing buildings, which the appellant intends to demolish, are located within this reserve. Strips of land, 0.1 metres wide, are to be included in the total reserve area of 5,380 square metres, to prevent access between Lipsett Terrace and two of the proposed residential allotments which are closest to that road.
Categorisation of the Development
13 The development to which consent has been refused comes before the Court for assessment de novo, that is, for assessment as a whole, as to its appropriateness in terms of the relevant provisions of the Development Plan covering the subject land and its environs, but having regard also to the nature of the development and its circumstances.
14 This plan shows, on the Structure Plan Map WeT/1 (Overlay 1), the subject land and much other land around it designated as "living". Consistent with this, Zones Map WeT/17 shows the whole of the subject land and adjacent land to the west, north east and east in the Residential 2A Zone. Objective 1 (the only objective) for this zone describes it as:
"A zone primarily accommodating detached dwellings at low-densities [sic] on individual allotments, with semi-detached dwellings and other kinds of one-storeyed dwellings in suitable areas."
15 Principle of Development Control 1 for the zone reflects the intention of this objective, but is more particular in its reference to the various kinds of dwellings other than detached dwellings, but having only one storey, which may be suitable in certain parts of the zone. Land division is neither a complying nor a non-complying kind of development in the Residential 2A Zone.
16 Section 38(2)(a) of the Act provides that the regulations or a development plan may assign a form of development to Category 1 or to Category 2. It is then stated in Section 38(2)(b) that any development that is not assigned to Category 1 or to Category 2 is to be taken to be in Category 3. The Council dealt with the proposal as being for a Category 3 development.
17 The Development Plan in this case does not assign, specifically, any kind of development to a particular category, but Part 1 of Schedule 9 to the regulations defines those kinds of development which are to be Category 1. According to item 5 of this part of the schedule, Category 1 development includes:
"The division of land (including for the construction of a road or thoroughfare) where the applicant proposes to use the land for a purpose which is, in the opinion of the relevant authority, consistent with the objective of the zone or area under the Development Plan, other than where the division will, in the opinion of the relevant authority, change the nature or function of an existing road."
In his address to the Court, Mr Tredrea offered an opinion that this provision of the schedule would appear to place the proposal in Category 1, although "the matter wouldn't be beyond all argument". The matter of categorisation of the development was not pursued further by Mr Tredrea and not mentioned at all by the other parties.
18 It may be the case that the appellant's proposal to create what are described on the proposal plan only in the most general terms as "residential lots" did not enable the Council to be assured, and thus form an opinion, that the proposed use of the land is consistent with the reasonably specific objectives of the zone, however it is clear from one of the grounds upon which the Council refused its approval that the Council had formed an opinion that the proposed division will have an undesirable impact upon "the nature or function of an existing road". Although we have come to the conclusion that the impact which the proposed division is likely to have upon Lipsett Terrace does not justify the decision to refuse, there is no dispute that the Council held this view. The practical effect of this is that it was properly open to the Council to determine that this development fell within Category 3 for that reason alone. Although we agree with Mr Tredrea that the issue is arguable, we are unable to say that the Council's classification of the development was wrong.
Assessment
19 Most of the issues in this appeal derive from the Council's reasons for refusal of consent. Those reasons correspond to the concerns raised by the second respondents. In summary, they refer to:
* the appropriateness of a new road connection between the subject land and Burbridge Road;
* the traffic volumes and conditions likely to result from the development, and impacts therefrom on the amenity enjoyed by residents in Lipsett Terrace;
* the need for a larger landscaped buffer reserve along the frontage of the land to Burbridge Road; and
* the appropriateness of the location of the main reserve adjacent to Lipsett Terrace.
We deal with these matters individually.
1. Road connection to Burbridge Road
20 The only existing provision for vehicular access between Burbridge Road and the subject land is in the form of a locked gate in the southern boundary fence and an adjacent crossing place on the kerb of the road, presumably for occasional servicing convenience. There is no road into the subject land off Burbridge Road now and none was, nor is proposed, by the appellants.
21 Burbridge Road is shown on the Structure Plan, Map WeT/1 (Overlay 1) in the Development Plan as a "secondary arterial road. In these circumstances, item 2(2) of Schedule 8 to the Development Regulations prescribes that "development that involves the division of land where the land being divided abuts an arterial road and creates new road junctions on that arterial road" must be referred to the Commissioner of Highways for direction in respect of the location of such junctions. There being no such junctions proposed, the Commissioner of Highways initially had no report to make on the division of the subject land.
22 When the proposal was publicly notified, a number of representations from residents along Lipsett Terrace advocated the opening of a new roadway from the subject land onto Burbridge Road to relieve anticipated additional traffic pressure on Lipsett Terrace. The Council favoured such an additional access point and sought comments from the Commissioner of Highways on amendments being made to provide it. The Manager, Planning Liaison of the Department of Transport advised, in response, that the department was not in favour of creating a new road junction onto Burbridge Road, because, in summary:
* The policy of the department is that the number of road junctions with arterial roads be kept to a minimum to ensure the safe and free flow of traffic along arterial roads.
* Alternative points of access to the arterial road network are available via Byrnes Street (a street connecting Lipsett Terrace to Burbridge Road just west of the subject land, entering Burbridge Road opposite a break in the central raised median along that road), and via Lipsett Terrace, which connects at its eastern end to Marion Road and at its western end to Airport Road.
* A new junction onto Burbridge Road would result in a large number of U-turns at the Byrnes Street junction.
* The Department is proposing another median opening along Burbridge Road, just east of the subject land, to provide for U-turn movements generated by the existing traffic layout.
23 The evidence we heard suggested that there may be locations for a road junction along the frontage of the subject land to Burbridge Road which, if provided, could be acceptable to the Commissioner of Highways, but with some of these no opening of the raised median along the centre of that road opposite the junction would be permitted. In other locations, where a median opening may be allowed, the construction of such an opening would be wholly at the cost of the appellant. These possibilities are, however, speculative.
24 Without doubt, a new road connection between the subject land and Burbridge Road would remove the need for the development to be totally reliant upon Lipsett Terrace for vehicular access. It is necessary, however, for us to consider whether the creation of a new road junction with Burbridge Road is consistent with good planning in the circumstances of this case, with particularly reference to the Development Plan. The relevant provisions of the Development Plan in this regard include the following Metropolitan Adelaide Objectives:
"Objective 22:
A road hierarchy to form the basis of development controls and serve as a guide to the investment of road funds in order to insure a safe and efficient traffic flow and to promote the saving of fuel and time. Arterial roads will provide for major traffic movements."
"Objective 25: A form of development adjoining main roads which will:
(a) ensure traffic can move efficiently and safely;
.....
(e) provide limited and safe points of access and egress."
supported by two Council Wide Objectives:
"Objective 17:
A more beneficial and compatible relationship between land use and transport, achieved through:
......
(b) the design and location of development to improve the efficiency and safety of movement on the arterial roads; and
(c) the re-direction of through traffic from residential streets onto arterial and collector roads shown on Map WeT/1 (Overlay 1), to enhance amenity in residential streets.
Objective 18:
Safe and convenient movement within the council area with minimum congestion, and reduced levels of energy consumption and pollution, achieved through:
......
(f) the improvement of traffic flow along major arterial roads which serve a metropolitan as well as local function."
and these Council Wide Principles of Development Control:
"6. Allotments which have frontage to arterial roads should not be further subdivided unless it results in the consolidation of allotments or facilitates the achievement of the objectives and principles of development control of the Development Plan."
"61. The number of vehicle access points onto arterial roads shown on Map WeT/1 (Overlay 1) should be minimized, and where possible access points should be:
(a) limited to side roads; and
(b) shared between developments."
25 Council Wide Objective 17(c) does not support the channelling of traffic from the subject land directly onto Burbridge Road, because that traffic would be local traffic. Implementation of that objective by the provision of a road connection between Lipsett Terrace and Burbridge Road to carry "through traffic" - ie traffic between neighbourhoods or districts - would be inappropriate and unnecessary: Byrnes Street already exists, close by to the west, to perform that re-direction function to the extent which is needed.
26 The design of the division of land, as proposed, provides for no direct vehicular access along the boundary of Burbridge Road. In this respect, it is wholly consistent with Metropolitan Adelaide Objective 25(e) and Council Wide Principle 61, both of which apply, in the main, to direct access (ie frontage access) between allotments and an arterial or other main road. The intention of these provisions of the Development Plan is clearly to keep such access to a minimum. While they may not apply directly to the creation of additional road access along an arterial road, these provisions are consistent with the maintenance, if not the improvement, of the efficiency and safety of movement and traffic flow along Burbridge Road. Either the opening up of additional frontage access points or the creation of an additional road junction to Burbridge Road (or both) would inevitably interfere with the existing and desired function of that road. This is not to say that there can be no additional road access to Burbridge road, but we consider, in the circumstances of this case, that the opening up of a new road connection between the subject land and Burbridge Road is not appropriate, so long as Lipsett Terrace is able to carry, satisfactorily, all traffic movements associated with the likely future use of the subject land. Whether it can or can not is the next matter to be considered.
2. Traffic in Lipsett Terrace
27 Mr Young said that Lipsett Terrace is a "collector road", having a junction at the eastern end with Marion Road and an intersection at the western end with Airport Road. It contains a roadway 8.8 metres wide, on each side of which are footpaths, three metres wide.
28 It was clear that the witnesses who live along Lipsett Terrace were well aware that this road performs - and has performed for many years - a role which was more than that of an average residential street. Traffic conditions in Lipsett Terrace are due, in part, to its configuration - it is almost a straight road, about 900 metres long. As well as linking Marion Road (a designated primary arterial road) to Airport Road (a designated major collector road), Lipsett Terrace has junctions or intersections with five local residential streets including Byrnes Street. It also provides frontage access to a primary school, a kindergarten, a church and the theological college, all of which are located, or primarily located, to the east of the subject land. In addition, it provides frontage access to a large youth hostel and to numerous dwellings.
29 Mr Young was the only witness with extensive, specialised, traffic and transportation experience and with particular qualifications in these fields. According to his expert opinion, the design of Lipsett Terrace is equal to its existing function. Surveys conducted under his supervision at relevant peak periods indicated, he said, that "queuing on the approach to Marion Road is not a significant issue". According to traffic counts recorded by the Council along Lipsett Terrace, two-way movement has declined from 1,167 vehicles per day in 1993 (when the Salesian College was operating) to 830 vehicles per day in 1998. These volumes are, in the opinion of Mr Young, significantly less than "the normally accepted residential amenity problem volume of approximately 1,500 vehicles per day". Lipsett Terrace thus has, in Mr Young's opinion, ample capacity to accommodate the additional traffic (488 vehicle trips per day) which, he estimated, would be likely to be generated by the development of 61 allotments for residential purposes on the subject land.
30 The layout of the proposed division of land would allow vehicular traffic entering and leaving Lipsett Terrace to be distributed between the two proposed road junctions. The Council would have control over all direct vehicular access to the proposed reserves along the boundary of the subject land with Lipsett Terrace and could readily ensure that no additional access points are created. None of the residential allotments would have direct frontage to Lipsett Terrace, so on-street parking by visitors and others associated with use of the proposed allotments would generally not occur along the kerbs of Lipsett Terrace. This would facilitate traffic flow along the section of Lipsett Terrace bounding the subject land, thereby maintaining, if not improving, its existing traffic capacity.
31 We are mindful of the problems which Mr Hall, a long-term resident on the southern side of Lipsett Terrace close to Marion Road, said can occur at present, due to the queuing, from time to time, of cars in Lipsett Terrace west from Marion Road. We also note other evidence from residents of occasional inconveniences experienced by drivers along Lipsett Terrace under existing conditions, but we were also told that residents use roads which run off Lipsett Terrace to avoid "traffic congestion" problems which occur periodically or occasionally. In all, however, we are satisfied that Lipsett Terrace is well able, and should be able, to accommodate traffic likely to be generated by the future use of the subject land, if that land is divided as proposed. While respecting the concerns expressed by residents, apparently reflected in the view of the Council, we find, having regard to the evidence of Mr Young, which we accept, and our own consideration of the Development Plan, that there would be no undue adverse impact from the development on traffic amenity or the proper function of Lipsett Terrace.
3. Buffer Reserve
32 The proposal, as illustrated on Exhibit A2, shows that reserves totalling 5,380 square metres in area are to be provided. Part of this reserve provision is a strip, 1.0 metre wide, between residential allotments and the boundary of Burbridge Road, linking up to rectangular portions of reserve, of 143 square metres and 132 square metres in area respectively. The narrow strip of reserve runs along the side boundary of two allotments and the rear boundaries of eight allotments, and the rectangular reserves are located at the southern ends of two of the proposed roads. This reserve is available to be landscaped with shrubs or trees to screen the side or rear fences of the abutting allotments and to enhance, generally, the views of the development on the subject land.
33 The continuous reserve proposed along the boundary of Burbridge Road would enable the Council to control public access, particular vehicular access, between the internal roads and Burbridge Road and between residential allotments and Burbridge Road. This vehicular access control function is important, as we have previously mentioned, but there would still be provision for access by pedestrians and cyclists across the rectangular areas of the reserve. This is appropriate, especially in the case of pedestrians, because of the location of bus stops in Burbridge Road adjacent to the subject land.
34 Plane trees, 4-5 metres high, have been planted along the verges of Burbridge Road as part of the enhancement of that road as the main route between the Adelaide Airport and the City Centre. Large gum trees, in row formation, are growing on the subject land near the boundary of Burbridge Road, but the evidence is that most of these, and other trees on the land, are diseased. They have a relatively short life left and may not appropriately be retained. In these circumstances, it is necessary, in our opinion, that the buffer strip proposed along the boundary of Burbridge Road be of sufficient width to accommodate the natural growth of shrubs or trees which will be effective in screening, and generally enhancing, such views as may be had from the main road of the side and rear fencing of the proposed allotments. In this regard, Metropolitan Adelaide Principle of Development Control 11 states, in part, that "landscaping of development in residential zones should ..... enhance residential amenity .....". The following Council Wide Objective is also relevant:
"15. Environmental improvements throughout the council area, achieved through:
.....
(c) improved appearance and landscaping of arterial roads and residential streets;
(d) the incorporation of landscaping, particularly in the form of tree cover, in all development;
(e) the enhancement of public spaces and reserves; ....."
This objective is supported by two Council Wide Principles of Development Control:
"83. Landscaping should be provided to:
(a) add to the attractiveness of the site;
.....
(e) reduce the visual monotony of large blank wall areas; ....
84. Landscaping should be located:
(a) between buildings and road boundaries;
(b) around the perimeter of sites; ....."
35 Mr Story expressed an opinion that there would not be sufficient space for effective landscaping within a buffer strip one metre wide, landscaping consistent with the status of Burbridge Road as a main entry route to the City Centre from the Airport. He mentioned, and appeared to accept, the substance of evidence subsequently given by Mr Johnson, an employee of the recreation, parks and gardens section of the Council, that a minimum width of two metres is required. Mr Johnson, who has tertiary qualifications in wildlife and park management, recreation and outdoor education, said that a reserve, 3-4 metres wide, would be ideal, but within two metres, roses could be established and readily maintained for a period of 10 to 15 years. Roses would be appropriate in terms of their visual attractiveness and the maintenance of pedestrian access and safety along the public footpath. Eventually, the canopies of plane trees will shade sections of the buffer strip and other plants would need to be established within it. Mr Johnson advocated removal of the gum trees that are presently growing more than two metres from the southern boundary of the subject land because they are interfering with the growth of the avenue of plane trees.
36 Mr Rumsby acknowledged that the canopies of the plane trees growing along Burbridge Road would eventually limit the scope for effective planting within the buffer strip. While he envisaged that a "climber hedge" form of landscaping, to provide visual relief rather than a landscaped screen, would be able to be established within a one metre buffer strip, he conceded that widening to 1.5 metres may be required.
37 In his concluding remarks, Mr Henry advised the Court that the appellant would abide a requirement to widen the buffer strip to two metres. Mr Tredrea said this would be acceptable also to the Council. Mr Hayes QC, for the second respondent, made no submissions on the subject.
38 In these circumstances, and in the light of the evidence, we are satisfied that the buffer reserve abutting the boundary of Burbridge Road should have a minimum width of two metres.
4. The main reserve
39 Metropolitan Adelaide Principle of Development Control 12 states that:
"12. Within residential zones, open space should provide for recreational activities, pedestrian and bicycle links and the preservation of natural features."
This principle follows from Metropolitan Adelaide Objective 36 which seeks "adequate public parks and recreation areas conveniently located". In the narrative following this objective, it is stated that:
"Open spaces are needed in a city or outdoor recreation, and all age groups must be catered for. The size of the open spaces must be adequate, and they must be located conveniently for the people who use them. ....."
40 The total reserve area to be vested in the Council, totalling in excess of 12.5 percent of the area of the land to be divided, would exceed the maximum area which the Council may require under Section 50(1)(c) of the Act. The greater part of that reserve is to be contained in one area, roughly rectangular in shape, with an area of 4,923 square metres. This reserve area is to be located on the higher part of the land and abutting Lipsett Terrace. It is opposite the southern end of Hazel Street (a local road running north of Lipsett Terrace) and is bounded on the western side by one of the proposed roads to be created by the division. Four of the proposed allotments across the road on the western side would face this reserve area and the rear of ten others would abut the reserve area on its southern and eastern side.
41 The quantum of open space which is proposed is not (and should not be, in our view) the subject of criticism. Rather, it is the location and, to some extent, the design of the main area of reserve abutting Lipsett Terrace which is opposed by the Council and the second respondent.
42 The Council's case is that location of the main reserve area adjacent to Lipsett Terrace is acceptable, but that it should be moved to a position in the north-western corner of the land which is to be divided. While the Council had refused consent to the appellant's plan of division partly because it was opposed to the location of the reserve, Mr Tredrea conceded that the Council's intention, in this regard, could have been satisfied by a condition of consent requiring redesign. If there had been such a condition, or indeed another condition requiring a road outlet onto Burbridge Road, we expect that an appeal would still be instituted and the submissions made to the Court would have been largely the same as they are now.
43 The Council did not pursue strongly its view that the main reserve should be moved further west. Evidence called by Mr Tredrea in support of its case in this regard came from two nearby residents, Ms Loro and Mrs Johns. Ms Loro, who lives opposite the north-western corner of the land, just west of the junction of Lipsett Terrace and Hazel Street, was concerned mainly about additional traffic in Lipsett Terrace. Her view as to the main reserve area seemed to be that it should be moved to the western boundary of the land to place the junction of one of the proposed new roads with Lipsett Terrace further from her dwelling. Mrs Johns lives further from the subject land than Ms Loro. She said that the reserve should be moved to the west because "it would be nice to have a park for all the residents on Lipsett Terrace", by which she meant the residents generally to the west of Hazel Street. Both witnesses seemed to want the advantages of a reserve but did not want to experience the effects from traffic which they expected the development would eventually generate.
44 Mr Tredrea also relied upon a statement by Mr Cirelli, made during cross-examination, that relocation of the reserve to the west would be "a better plan", principally, it seemed, because it would assist in achieving the intention of Council Wide Principle of Development Control 75. This principle states that:
"75. Development should be designed so that the degree of overlooking of the residential zone from upper-storey windows is minimized."
45 Mr and Mrs Ivancic own land abutting the north-western corner of the subject land. A two storeyed residential flat building, containing six flats, stands on the land. The windows in the flats face east and west. At present, the front rooms of the upper three flats overlook the old school ground - an attractive outlook. Should the present division proceed as proposed and dwellings be constructed on the allotments thus created, the upper three flats will overlook the rear yards of the four dwellings which will lie to the east.
46 Mr Hayes QC, with some support from Mr Tredrea, encouraged the Court to read Principle 75 as intending, in the circumstances of this case, that development of the subject land should be designed so that the degree of overlooking of that land, being land in a residential zone, from upper-storey windows of the residential units on the Ivancic land is minimized. The proposition put to each of the planning witnesses and to Mr Ivancic was that overlooking of the rear yard of four proposed allotments which would back onto the Ivancic land should be avoided by moving the main reserve to the position of those allotments. Overlooking of the reserve was, it was submitted, preferable, even though the reserve would still be in a residential zone.
47 Principle 75 appears in the Development Plan together with, indeed amid, eight other principles, under the heading "Amenity", which relate to development outside - principally on the boundary of - a residential zone. Arguably, Principle 75 is intended to control development which is not in, but could overlook, a residential zone, but we need not, and do not, decide whether this principle applies to development within a residential zone. The relevant fact in this case is that this principle controls development from which overlooking could occur. It does not control development which itself is overlooked. The principle says nothing about what, in a residential zone, is to be protected from overlooking.
48 We do not, however, ignore Principle 75. Rather, we consider that it does not have such force as to justify the removal of residential allotments from proximity to the Ivancic land simply because those allotments would be overlooked - even, if, by inference, the principle indicates a desire that there should be no inappropriate overlooking, generally. The establishment and maintenance of a reasonable level of privacy for the occupants of all land is, of course, a valid matter of planning concern, although the West Torrens (City) Development Plan refers directly to privacy and overlooking only to a limited extent. Metropolitan Adelaide Principle of Development Control 10, for example, provides that:
"10. Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:
(a) for adjacent properties; and
(b) for each dwelling and private open space."
It is also stated, in association with Metropolitan Adelaide Objective 9, which seeks "safe, pleasant, convenient and efficient residential zones" that:
"Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight."
49 Mr Story, Mr Cirelli and Mr Rumsby all acknowledged that four of the proposed allotments would be overlooked from the Ivancic land, but they said that replacing those developments with a reserve would be only one way of dealing with the consequences of that overlooking. The Council would have ample power, and justification to use such power, to ensure that residential development on the four overlooked allotments is designed to reduce likely adverse effects from that overlooking to a minimum. Likewise, with reference to Metropolitan Adelaide Principle 10, to which we have referred, privacy on the Ivancic land itself can be protected, to a reasonable extent, by the location and design of residential buildings on the adjoining allotments. In considering this matter, we have taken into account that such overlooking of the subject land from the Ivancic land as might occur would mostly be from a balcony providing front door access to three first floor residential units and from windows in the lounge room and one bedroom in each of those units, the sills of which windows are in the order of 460mm high.
50 It is open to any person making a valid representation on a proposed development, and pursuing the submissions made in that representation on appeal, to object to a proposal which that person contends may lead to development which is contrary to the Development Plan. According to his evidence, Mr Ivancic, as one such person, seeks to maintain some vestige of an existing outlook to the east onto grassed open space which was once part of the Salesian College playing field. We understood his evidence to be that the proposed main reserve area would be better to look at than residential allotments, this being one of his primary concerns. He also considers that he himself would experience a loss of privacy and amenity, presumably insofar as comings and goings along the eastern balcony on the Ivancic building may be seen from residential allotments instead of from a public reserve. Thus, reciprocal overlooking between the Ivancic land and the subject land and loss of amenity to the Ivancic land are the principal reasons for Mr Ivancic wanting the main reserve area to be moved.
51 Each of the planning witnesses accepted that the location of the main reserve area in the north-western corner of the subject land would be consistent with the Development Plan, although Mr Story and Mr Rumsby were concerned about the prospect of a road junction with Lipsett Terrace being created which would diminish traffic safety and interfere with traffic flow in proximity to the junction of Hazel Street and Lipsett Terrace. If relocation of the reserve area required drivers to make a left turn when travelling between the subject land and Hazel Street, due to the junction of a new road with Lipsett Terrace being east of the junction of Hazel Street and Lipsett Terrace, traffic conditions would be created which, Mr Young's evidence confirmed, would not be desirable. The right-left turn by drivers travelling between Hazel Street and the proposed new road closest to it would be preferable.
52 Taking all aspects of the location of the main area of reserve into account, we feel that there is no good reason for us to require that it be relocated or reconfigured. Dr Gupta's view was that the development should be redesigned substantially to meet better the desires of the majority of local residents, simply because those desires have been expressed. We must deal, however, with the proposal that is before us. There may well be other ways to develop the subject land, but it is not our task, nor was it the task of the Council as a planning authority, to redesign the proposed development to achieve what may some people consider to be an ideal, or simply to meet the representations of those who expressed opinions on the development proposed as publicly notified. What we can do is to approve a development, refuse it, to remove, or reduce to an acceptable level, inconsistencies with the relevant provisions of the Development Plan, properly applied. We can, by conditions, require a development to be amended, provided those amendments do not produce an essentially different development. In this case, however, we find that the location of the reserve, as proposed by the appellant, is satisfactory.
53 We feel sympathy for Mr Ivancic and his family. Their living circumstances are being overtaken by changes which, in any long term view, should not have been unexpected, given the provisions of the zoning and the Development Plan generally. The subject land is zoned primarily for the accommodation of detached dwellings. Metropolitan Adelaide Objective 6, in promoting a "compact urban area", advocates infilling and use of vacant and under-utilised land (which the subject land is), in part to maximise use of the existing community investment in facilities and services in existing housing areas. In achieving a compact form of development, recognition is to be given, according to the Development Plan, to "areas of particular character of amenity, or to specific constraint", but the existence for many years of an open playing field on the subject land does not establish the kind of character or constraint in the area to which reference is made. The previous and current openness of the subject land is also not an element of the character of the Residential 2A Zone, or of the amenity of the locality as a place in which to live, which character and amenity, according to Metropolitan Adelaide Principle 9, development should not impair. What we are dealing with here is a large parcel of vacant land, available for more economically-efficient use, in a designated urban residential zone. Its prior open condition and prior use (now discontinued), are not elements of the character or amenity of the area or locality to be protected when development consistent with the purpose of the zoning of the land takes place.
Conclusion
54 In assessing the proposed development, we have had regard to all of the relevant provisions of the Development Plan (only some of which we have mentioned specifically) as well as the circumstances of the development and the evidence and submissions we have received. In our opinion, the proposed land division warrants approval. We do not think that reasons justifying the relocation of the main reserve - together with the consequential reconfiguration of the plan of division (as illustrated on Exhibit A2) - have been made out. We think, however, that the minimum width of the buffer reserve along the boundary of the land with Burbridge Road should be increased from 1.0 metre to 2.0 metres.
55 Having communicated this conclusion to the parties on 15 January 1999, we invited submissions on conditions.
56 At the resumption of proceedings on 10 February 1999, the Court received from the parties a draft of conditions which the appellant and the first respondent had agreed. Mrs J Ivancic, appearing on behalf of the second respondents, also accepted these conditions, although with some misgivings. The Court is, of course, not bound to accept conditions agreed between the parties, as it is charged to exercise an independent responsibility and judgment as to the appropriateness of any order that it makes.
57 The Court may impose any conditions that it considers necessary or expedient: Section 88(a) and (e) of the Act. Standing in the place of the Council, the Court is also guided by the provisions of Section 42 of the Act, the relevant parts of which are as follows:
"42(1) A decision under this Division is subject to such conditions (if any)-
(a) as a relevant authority thinks fit to impose in relation to the development; or
(b) as may be prescribed by the regulations or otherwise imposed under this Act.
(2) Any such condition-
(a) is binding on, and enforceable against-
(i) the person by whom the development is undertaken; and
(ii) any person who acquires the benefit of the decision or the development; and
(iii) the owners and occupiers of the land on which the development is undertaken; and
(b) may continue to apply in relation to the development unless or until it is varied or revoked by the relevant authority in accordance with an application under this Division.
(3) A relevant authority may, for example, approve a development subject to a condition-
(a) that regulates or restricts the use of any land or building subject to development; or
(b) .....
(c) that regulates maintenance of any land or building subject to development; ....."
58 It is well established that to be valid, conditions of consent:
1. must have a planning purpose, ie they cannot be imposed to serve some other purpose, eg to serve an ulterior motive, however desirable that may seem in the public interest;
2. must fairly relate to the permitted development;
3. must impart finality to the decision to which they relate, and not be wanting in particularity;
4. must be reasonable, a condition being invalid if it is so clearly unreasonable that no reasonable planning authority could have imposed it; and
5. must not conflict (or possibly conflict) with other provisions of the Development Act, eg provisional development plan consent conditions should not intrude upon the field of provisional building rules consent conditions, or with the requirements of other applicable legislation, eg the Fences Act.
59 Five conditions of provisional development plan consent were suggested to the Court. One of these, concerning the width of the reserve abutting the boundary of Burbridge Road, would be appropriate in that it would vary the proposed plan of division in a manner consistent with the Court's conclusions. However, the other conditions are inappropriate for various reasons which we now give.
60 One suggested condition calls for retaining walls of a certain kind where any build-up of the site above existing natural ground level is needed. Others would required the erection of fencing. Such conditions are not related to the proposed division of land. They would instead be properly attached to provisional development plan consent (if such consent is required) to further development of the allotments, once created. If the Council feels it will not have sufficient control over the fencing of an allotment because the fencing proposed is excluded from development and therefore from control, the Council cannot seek to gain control by attaching conditions of the kind suggested, even if the control of fencing is in the public interest. The filling of allotments is not needed to give effect to the division of land. It might, however, be required when the use of the allotments is changed or when building development is proposed (or both), at which time the Council could exercise the necessary control over filling and associated retaining walls in the course of granting provisional building rules consent.
61 One other suggested condition of provisional development plan consent would require a "Soil Erosion and Drainage Management Plan" to be prepared. The Environment Protection Authority referred to the need for a management plan in its report to the Development Assessment Commission on 23 April 1998 (page 28 of Exhibit R1). The Council was required to have regard to this advice, the proposed division being an activity of environmental significance. However, if it is considered by the Environment Protection Authority that the appellant should, in the exercise of its general environmental duty, prepare a management plan, there is provision in the Environment Protection Act, 1993, for an environment protection order to be issued. Proceedings under the Development Act should not be used to achieve the objects of other legislation. Apart from this, a condition such as that suggested, lacks particularity and again is not obviously related to the division of land.
62 We turn now to the conditions to be satisfied in relation to what is commonly referred to as "land division consent". First, we note that the Development Assessment Commission, partly, it would seem, in response to advice from the South Australian Water Corporation, requested in its report to the Council that the following requirements be included in (attached to) development approval:
"1. The necessary easements shall be granted to the SA Water Corporation free of cost.
2. The financial requirements of the SA Water Corporation shall be met for the provision of water supply and sewerage services. (SA Water 90032/98 Water).
3. Two copies of a certificate survey plan shall be lodged with the Commission for Certificate purposes."
The first two of these requirements lack particularity and finality. Without doubt, the South Australian Water Corporation may properly prescribe a need for easements or require that financial contributions be made relating to the provision of water supply and sewerage services: Section 33(1)(c)(iii) and (iv) of the Act. However, an applicant for consent is entitled to know what those requirements are, if they are to form conditions of consent: Grocke v Adelaide Hills Council ERDC No.360 of 1998, Judgement No. OE527. Notwithstanding, the Court notes, as it did in the Grocke case, that the parties agreed these conditions, and although it is not bound to do so, accepts such conditions with reluctance in this case. Such conditions may not be accepted in future. Before the Development Assessment Commission prescribes requirements to be met before it issues a certificate pursuant to Section 51 of the Act, it should ensure that the South Australian Water Corporation (and indeed any other agency properly requiring that provision be made for easements) prescribes the nature and location of easements required and also the amount of the financial requirements.
63 The third of the abovementioned conditions concerns an administrative procedure which is not properly the subject of land division consent. Rather, it deals with a matter which can best be the subject of an advisory note.
64 Section 51 of the Act provides for the issuing of a certificate by the Development Assessment Commission once it is satisfied that prescribed conditions as to development in the nature of the division of land have been satisfied or that other acceptable binding arrangements have been entered into by the applicant for development consent. The prescribed conditions referred to are those "requirements" set out in regulations 50 to 55 of the Development Regulations for the purposes of Section 33(1)(c)(iv) of the Act. The provisions of these regulations which are relevant to the present case deal with the width of roads and thoroughfares, requirements as to the width, forming and construction of, drains and services and certain supplementary provisions. These regulations give to a Council power variously to control the width of road and thoroughfares; the formation and width of roadways; the formation of footpaths, water-tables, kerbing, culverts and drains; the construction of paving and sealing of roadways; the construction of culverts or underground drains or inlets for a proposed road; the construction of footpaths, water-tables, kerbing, culverts and drains; the provision of drains; and the installation of electrical services.
65 A large number of the suggested conditions which the Council sought to be attached to the land division consent contain prescriptions of detailed requirements in regard to these matters. Several, however, go beyond the scope of conditions which may properly be attached to land division consent, at least without the appellant having undertaken specific works beyond what may be expected, reasonably, to be required with regard to the relevant provisions of the Act and the Development Regulations to which we have referred. Examples of suggested conditions which go beyond the scope of specific, legislated power are those which would require:
* undergrounding of electricity services (where there is no evidence before the Court of the subject land having been declared an underground mains area, pursuant to regulation 30 of the Development Regulations);
* the provisions of street lighting, including fittings and cabling;
* the supply and installation of road identification signs;
* the supply and establishment of street trees;
* the supply and establishment of landscape planting within the reserve along the frontage to Burbridge Road and within the reserve abutting Lipsett Terrace; and
* retention, if possible, of the existing bore within the Lipsett Terrace reserve for use to irrigate the reserve area.
66 The appellant may well be prepared to place electricity mains, telephone cables and facilities for cable television and other services underground and to establish signage, street trees and landscaping in the reserves at its own cost. It may well be prepared to consult the Council in relation to these works. We are not, however, able to require that this be done since these works are not the proper subject of conditions in this case.
67 Accordingly, in the formulation of conditions to be satisfied prior to the issuing of a certificate, we have taken into account those of the suggested conditions which follow from the prescribed requirements for general land division contained in regulations 50 to 55 of the Development Regulations. In these conditions we have nominated the Council as the relevant body to be satisfied in respect of certain matters, not an officer of the Council. This Court, like its predecessors, has held, on countless occasions, that it is the Council, or other relevant statutory authority, not an individual officer of the Council or authority, which is to be satisfied regarding certain particulars or in determining whether certain requirements prior to consent taking effect have been satisfied. A reference to the Council in this context encompasses any delegations lawfully given by the Council.
68 On 15 February, 1999, the Court heard further submissions from the appellant and the Council on conditions which the Court had drafted. (No appearance was made by the second respondents.) Mr Main, appearing for the appellant, submitted that parts of the buffer reserve along the frontage of Burbridge Road should have a minimum width of only one metre. This submission was inconsistent with Mr Henry's prior advice to the Court (on behalf of the appellant) that the appellant would abide a widening of the buffer strip to at least two metres. The Court reviewed the question, but concluded that the evidence, taken overall, supported the whole of the reserve being widened.
Decision
69 Provisional development plan consent is granted to the proposal by Fairmont Homes Pty Ltd to divide the subject land in accordance with the proposal plan comprising Exhibit A6 before the Court ("the development"), subject to the following conditions.
1. The reserve abutting the boundary of Burbridge Road shall have a minimum width of two metres.
2. The reserves shown on the plan of division shall vest in the Council.
70 It is further the decision of the Court that pursuant to Section 33(1)(c) of the Act, consent is granted to the development subject to satisfaction of the following conditions:
1. The width of all roads shall be at least 13 metres, unless otherwise approved by the Council, having regard to the width necessary for the safe and convenient movement of vehicles and pedestrians (including for the provision of footpaths, if required in future, on the opposite side of roads from, and additional to, footpaths required by condition 2).
2. A footpath shall be formed and constructed on one side of all roads. Each such footpath:
(a) shall have a width of 1,200mm and be located 500mm from the nearest allotment boundaries;
(b) shall be constructed in concrete block paving, the colour, texture and interlocking pattern of pavers being as approved by the Council; and
(c) shall be constructed in accordance with the Council's standard drawing number 8685-319.
3. Pathways for pedestrian and cycle access shall be formed and constructed, in a manner satisfactory to the Council, across the portions of the reserve between Lots 14 and 15 and the reserve between Lots 22 and 23, connecting Burbridge Road to the proposed roadways.
4. The width of the roadway adjacent to the Lipsett Terrace reserve shall be sufficient to accommodate along the eastern side of the roadway, the parallel parking of the cars of visitors to the reserve and to nearby allotments, to the extent required by the Council.
5. The widths of the roadways and the design of the kerbs shall be sufficient to accommodate the parallel parking, at the kerb, of one car for every two allotments, such parking being located within a reasonable distance of the allotments served, to the satisfaction of the Council.
6. The parts of roadways which are to accommodate the parallel parking of cars, as required by conditions 4 and 5, shall be 2.3 metres wide, with provision for 45 degree entry and exit tapers (where applicable).
7. Subject to condition 8, semi-mountable kerbing having a minimum height of 125mm shall be constructed at the edge of all roadways.
8. Kerbing, 150mm high, shall be constructed at the edge of roadways adjacent to reserves.
9. All roadways shall have a minimum width of seven metres and be designed to accommodate turns by a remote arm refuse collection vehicle.
10. The roadways shall be formed and constructed in accordance with the following specifications, where relevant:
(a) for brick paving, 80mm concrete block pavers shall be used, the colour, texture and interlocking pattern (Class A) of the pavers being as approved by the Council.
(b) for Asphaltic Concrete ("bituminous hotmix") paving:
(i) the surface of the paving shall be 30mm thick, with 0mm negative tolerance and 15mm positive tolerance, and shall consist of ARRB Gap Graded Mix, in accordance with Australian Road Research Board Report ARR228;
(ii) the materials, mixing, manufacture and transport of the bituminous hotmix shall conform with the requirements of AS 2150 "(Asphalt 'Hot-Mix')";
(iii) the aggregates shall conform with AS 2150, with the Los Angeles value a maximum of 30 and aggregate crushed value of maximum of 25. Aggregate grading shall comply with the following:
AS Sieve(mm) 13.2 9.5 6.7 4.75 2.36 1.18 0.6 0.3 0.1 0.07
Target% 100 98 77 71 65 53 40 24 13 8
Passing by
Weight
Bitumen content (% by mass of total mix) 6.5
(iv) Bitumen used in the bituminous hotmix shall be Class 170 residual bitumen and shall conform in all respects with AS 2008 "Residual Bitumen for Pavements".
11. Provision shall be made for overland drainage of major stormwater flows, having an average return interval (ARI) of 100 years, within road reserves, and easements and directed to the existing flowpath for the catchment area.
12. Provision shall be made for the underground drainage of minor stormwater flows, having an ARI of 10 years, to be directed to a retention basis in the Lipsett Terrace reserve for on-site detention prior to disposal off-site.
13. The maximum discharge of stormwater into the relief drain in Lipsett Terrace shall not exceed 20 litres per second at any single point of connection.
14. All stormwater drainage pipes within roads shall have a diameter of at least 300mm RCP with rubber ring joints.
15. All kerbs and watertables, spoon drains and pram ramps shall be constructed in accordance with the relevant standard drawings prepared by the Council.
16. Easements as may be required by the South Australian Water Corporation in relation to the provision of water supply and sewerage services shall be granted to the South Australian Water Corporation free of cost.
17. The financial requirements of the South Australian Water Corporation shall be met for the provision of water supply and sewerage services (reference is made to SA Water file "90032/98 water").
18. All of the conditions above shall be read in conjunction with and subject to the prescribed requirements set out in regulations 50 to 55 inclusive of the Development Regulations 1993.
71 An order shall be made to this effect and directing that Exhibit A6, shall remain on the file of the Court.
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