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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 8 February 1999
Decision of Commissioner Wallman
Respondent THE BAROSSA COUNCIL:
Counsel: MR J HILDITCH - Solicitors: WARD & PARTNERS
ERD-98-1296
Judgment No. OE5
2 February 1999
CORMACK v THE BAROSSA COUNCIL
THE COURT DELIVERED THE FOLLOWING DECISION
1 Mr William Jeffrey Cormack and Mrs Lynda Barbara Cormack are the registered proprietors and have joint tenancy over an allotment of land in the area of Cockatoo Valley in the Hundred of Barossa ("the subject land"). On 8 October 1998, they appealed to this Court against a decision by The Barossa Council ("the Council") to refuse provisional development plan consent and what may be termed "land division consent" to the division of the subject land into two allotments of equal size. The Council's decision on this development (Development Number 960/D005/98) had been made on 18 August 1998 under its powers as the "relevant authority" referred to in Part 4 of the Development Act 1993 ("the Act"). Mr and Mrs Cormack's right to appeal is contained in Section 86 of the Act.
2 An appeal conference between Mr and Mrs Cormack ("the appellants") and the Council being unsuccessful, the appeal was brought to the Court for hearing. Mr JR Botten, of counsel, appeared for the appellants and Mr JR Hilditch, also of counsel, appeared for the respondent Council.
Background
3 The background to this case is briefly stated.
1. In 1986, a parcel of land having a total area of 74.65 hectares was the subject of a plan of division which became Deposited Plan 18889 in the Land Titles Office. This land was divided into 29 allotments, ranging in area from 8689 square metres to 1.591 hectares, and a balance allotment, to the north-west, having an area of 38.27 hectares. The 29 allotments formed stage one of what is now known as "The Barracks Estate". The authorisation of this land division followed from the determination of the Planning Appeal Tribunal in the matter of P & R Fietz v District Council of Barossa & BC Martin PAT Nos. 1113 and 1114 of 1984. The subject land is one of the allotments created by that division.
2. In 1988, the balance allotment, referred to above, was divided into 35 allotments, ranging in area from 7,998 square metres to 1.564 hectares. This division formed stage two of The Barracks Estate. All but two of the total of 64 allotments originally created in The Barracks Estate now had had dwellings built upon them. The built-on allotments include the subject land.
3. The whole of The Barracks Estate, the adjoining Sandy Creek Primary School and an oval to the north-west of the estate, lie within a policy area designated as Cockatoo Valley West Area (Barossa District - Area 20) in the Barossa (DC) Development Plan dated 29 January 1998; this being the relevant authorised development plan as at the date of registration of the application for consent made by the appellants.
4. When the Council made its decision on the appellants' proposal, it had before it reports from the South Australian Water Corporation, the ETSA Corporation, the Development Assessment Commission and the Council's planning staff.
4 The Council gave to the appellants the following reasons for its refusal of consent:
"The proposal is contrary to the provisions of the Development Plan, and in particular:
Cockatoo Valley West Area (Barossa District - Area 20):-
Objective 1: and
Principle of Development Control 1."
5 The grounds of the subsequent appeal by Mr and Mrs Cormack stated that:
"Having regard to the circumstances, all of the relevant provisions of the Development Plan and the requirements of section 33(1)(c) of the Development Act, 1993, the proposed development warranted provisional development plan consent and land division consent."
6 These grounds of appeal imply reference to Section 33(1)(a) of the Act, which requires a development, in order to be approved, to be assessed against the relevant provisions of the appropriate Development Plan ("provisional development plan consent"). Section 33(1)(c) requires that certain conditions be satisfied in relation to a proposed division of land (so-called "land division consent").
The Subject Land
7 The subject land is located on the western corner of a bend in a bitumen-sealed public road named "The Barracks" which runs the length of The Barracks Estate. Having an area of 1.571 hectares, the land has almost the shape of a parallelogram, with primary road frontages of 98.25 metres and 138.51 metres, together with a total of 21.5 metres in three chords of equal length on the corner of the road. The primary road frontages are on the north-eastern and south-eastern sides of the land. Within and abutting the south-western boundary of the land is an easement for water supply purposes, about 20 metres wide, and in the south-eastern corner is a small square easement for electricity supply purposes.
8 The land falls generally from the north to the south on a moderate and fairly even gradient. Most of its area is vegetated with scattered low gum trees, some shrubs and a bushy hedge growing along the north-eastern boundary fence. The understory is grassed and mown. A two-storeyed dwelling, the home of the appellants, is located centrally on the land. Together with an attached carport, the dwelling is set among shrubs and trees, a number of which have been planted by the appellants.
9 Other buildings on the land include a domestic shed, just to the north west of the dwelling, a stable, to the west of the dwelling, and internal post and wire fencing creating two yards for the occasional keeping of a horse. The perimeter fencing of the land is of post and wire construction of a common rural kind.
10 Vehicular access to the land is gained off The Barracks roadway near the south-eastern corner of the land. From this access point a driveway leads to the appellants' dwelling.
11 Reticulated water supply, electricity and telephone services (all underground) are connected to the land and effluent generated by occupation of the dwelling is disposed of by septic tank.
The Locality
12 Mr Alan Rumsby and Ms Iris Iwanicki, both qualified and widely experienced town planning consultants, were called to give expert evidence to the Court. They both defined, in generalised terms, a locality, containing the subject land. Mr Rumsby identified a locality which included all of some allotments and parts of other allotments abutting or adjacent to the subject land, including allotments across The Barracks roadway to the north east and south east. He also included most of Lot 13, which allotment is separated from the subject land by Lot 14. Lot 13 has recently been divided, with the consent of the Council, into two allotments of equal area.
13 Ms Iwanicki included in her substantially larger locality more land to the south east, south west and north west, including the greater part of 15 of the allotments created in stage two of The Barracks Estate.
14 There is little reason to define a locality because there is no such area which the Court is required to consider by reason of the relevant provisions of the Development Plan. However, in this case, with regard to the nature of the proposed development, the topography, and other characteristics of land near the subject land, I consider that an area somewhat larger than that identified by Mr Rumsby - but not extending to the south east and north west as far as Ms Iwanicki's - provides a relevant primary geographical context for a proper assessment of the proposed development. Such an area is, as I see it, generally bounded on the north-eastern side by Williamstown Road, defined as a "Secondary Arterial Road" on Map Baro/5 in the Development Plan, and Balmoral Road, to the south west, shown on the same map as a "District Road". The new allotments created from the division of the original Lot 13 are the smallest allotments in this locality. The largest allotments are Lot 14, (with an area of 1.591 hectares), Lot 15 (the subject land) and Lot 22 (with an area of 1.557 hectares), the last-mentioned being a vacant allotment with a relatively narrow road frontage on the outside corner of The Barracks roadway, north east of the subject land.
15 Almost all of the allotments within this locality are evenly-proportioned with a substantially rectangular shape. Throughout, the land is gently undulating and falls mainly to the south and south west. With the exception of only two or three allotments, including Lot 16 abutting the subject land to the south west, the nearby allotments are vegetated with scattered native trees and shrubs, although not always at the density of the vegetation on the subject land.
16 Partly because of the substantial set-back of most dwellings and other buildings from road frontages, and partly because of the spacing, generally, between buildings on adjacent allotments, one gains an overall impression of the subject land being in a low density semi-rural setting, of pleasant aspect, in which land is still, to some extent, in the process of development. The predominant use of land is for residential purposes in spacious surroundings, with little use being made of unbuilt-on areas for other than the retention or regeneration of native vegetation, some additional landscape planting and occasional, low-intensity, animal keeping. This is a quiet locality with an apparently low level of activity in all respects, although Williamstown Road, on part of its perimeter, is a busy road, no doubt because it links the town of Williamstown to the Barossa Valley Highway.
The Proposal
17 The proposal which the Council originally refused involved a simple division of the subject land into two allotments of closely similar shape, each with an area 7,855 square metres and with a frontage to The Barracks road at the north-eastern end. This division was shown as being achieved by the establishment of a new boundary, dividing proposed Lot 101 from proposed Lot 102, roughly parallel to the north-western and south-eastern boundaries of the subject land. Thus, Lot 101 had a frontage of 53.74 metres to The Barracks and a maximum depth of over 150 metres. Lot 102, being on the corner of the bend in The Barracks, was to contain the existing dwelling, shown at its nearest point as being some nine metres from the new allotment boundary.
18 Prior to the hearing of the appeal, the appellants amended their proposal. An amended plan, (Exhibit A2) was before the Court, by consent, although the Council was still opposed to the development it depicted. This plan shows the subject land divided into allotments, still of equal area, with the existing dwelling being wholly within Lot 102 and six metres, at its nearest point, from the new dividing line. The dividing line is shown still running in a generally central position across the subject land, from the north east to south west, and located to avoid existing trees. A bend in the dividing line near the dwelling would enable Lot 101 to have its sole frontage, 79 metres wide, to The Barracks road. The plan shows a "building envelope" located in the north-eastern, wider, part of Lot 101, within which, it is asserted by the appellants, a dwelling could be built where it would be at least 22 metres from the boundary of The Barracks road reserve and 35 metres from the boundary of the adjoining Lot 14. This building envelope is shown on the plan as being 40 metres from the western corner of the appellants' existing dwelling, but it would be somewhat less than this from the nearest part of that dwelling.
19 The possible location of a driveway connecting the building envelope on Lot 101 to the roadway of The Barracks is shown on the proposal plan. According to the evidence of Mr Rumsby, such a driveway would provide for safe and convenient access, with appropriate sight distances being available in each direction along the roadway. Building within the building envelope and the establishment of a driveway in the position indicated would not require substantial removal of existing trees.
Assessment
20 In forming my opinion on the proposed development I had the benefit of a view, taken in the company of the parties, of conditions on most parts of the subject land and along all roads within The Barracks Estate as a whole.
21 The principal basis for the Council's opposition to the proposed division of the subject land was contained in the only objective for Policy Area 20, expressed in the Development Plan in the following terms:
"Objective 1: A desired character distinguished by a semi-rural residential character with ancillary activities not normally acceptable in urban residential areas."
This objective is reinforced by Principle of Development Control 1 for the Policy Area, which states that:
"1. Development should be for residential purposes on allotments of about one hectare in area."
22 It was common ground that the subject land, and indeed the portion of The Barracks Estate within which the subject land is located, presently has a "semi-rural residential character". I agree. This character derives from a particular type of residential use of almost every allotment, involving detached dwellings of high quality, well-separated from each other and set back from roads in a generally spacious setting containing mainly native vegetation, rural-type fencing, some minor animal keeping and horticulture.
23 The kinds of ancillary activities which have been established in Policy Area 20 are to some extent, in their present form, activities "not normally acceptable in urban residential areas". The keeping of horses, for example, in the Lyndoch and Williamstown Residential Zones on allotments less than two hectares in area is specifically designated as a "non-complying" kind of development. Although Principle of Development Control 2 for Policy Area 20 discourages commercial, industrial and retail development, no development is prescribed as non-complying in that policy area. The locality, and indeed The Barracks Estate as a whole, is still only newly settled. While some non-urban activities already exist in the estate, it is to be expected, with the passing of time, that more activities ancillary to the semi-rural character of the land therein will be established. In other words, in the circumstances of the social and physical conditions in the policy area having not yet matured, it is reasonable to anticipate that additional and non-intensive activities, of a permissible kind will occur, and should in fact be allowed to incur, taking proper advantage of the designation of Policy Area 20.
24 Policy Area 20 is distinguished from other policy areas and zones covering the non-urban parts of the Council area within the area covered by the Barossa (DC) Development Plan. Those areas which are nearest to Policy Area 20 are Policy Area 21, to the east, Policy Area 22, to the south, and the Rural B Zone (Concordia), to the west and north. The two policy areas just mentioned are part of the "Rural Living" area shown on the Barossa (DC) Structure Plan. Their desired characters envisage, respectively, "residential development in conjunction with rural activities" on allotments ranging from two to eight hectares, and "residential development in association with mixed farming" with division into allotments at least 20 hectares in area. The Rural B Zone is desirably to have "general agricultural uses on large holdings" prevailing, with division mainly into allotments of at least 40 hectares in area.
25 Policy Area 20 is distinguished also from the urban parts of the Council area lying within that portion of the area covered by the Barossa (DC) Development Plan, in that only in the townships of Lyndoch and Williamstown and their immediate environs are allotment areas of less than one hectare contemplated as being appropriate.
26 Mr Botten said the Court should keep in mind - and I accept - that:
1. the relevant provisions of the Development Plan are not mandatory; "they are to be read as being flexible";
2. the Development Plan is a practical code, calling for practical application;
3. the relevant provisions of the Development Plan must be considered as a whole and applied in the light of the relevant circumstances; and
4. where there is variance from the Development Plan, the reality of what exists on the land concerned cannot be ignored.
27 The provisions of the Development Plan for Policy Area 20 are certainly not mandatory. They are advisory in form and there is clearly room for interpretation of the intention regarding allotment size in the words "about one hectare". The Planning Appeal Tribunal, the predecessor of this Court, observed in the Fietz case, in regard to the 29 allotments then proposed as stage one of The Barracks Estate, that:
".....allotments range in area from one with the minimum of 8,000 square metres (proposed Allotment 10) to five with the maximum area of 1.4 hectares (proposed Allotments 4, 12, 13, 15 and 22)."
It went on to say that:
"In our view, it cannot be maintained that the proposed land division does not comply with the requirements of the Objective of Area 20. Clearly, it does. Further, we are of the opinion that the proposed land division also complies with the requirements of Principle 1 of the stated Principles of Development Control for that Area. ..... We are satisfied all of the proposed allotments fit comfortably into the words 'of about one hectare in area' found in Principle 1 for the Area 20."
28 In the final plan of division as deposited, Lot 10 was still the smallest allotment, but its area had been increased to 8,689 square metres. The largest allotment on that plan (Lot 13) had an area of 1.638 hectares. Since stage one was laid out, the original Lot 13 has been divided into allotments of about 8,190 square metres each, one of which contains a house. In stage two of The Barracks Estate, the smallest allotment has an area of 7,998 square metres and the largest an area of 1.564 hectares.
29 During the past 14 years or so, many trees have been planted on allotments within both stages of The Barracks Estate and, as I have previously mentioned , most of the allotments contain dwellings. These conditions are part of "the reality of what exists", but in view of the changes to which I have referred, conditions existing now in The Barracks Estate are not the same as those which existed on the land when the Planning Appeal Tribunal made its decision 14 years ago. What now exists on the subject land - namely a large dwelling, located centrally, surrounded by a quite substantial cover of trees - is part of the substantial change which has taken place in recent years. Although the objective and principles of development control for Policy Area 20 have not changed, the context in which those and other unchanged policies of the Development Plan are to be applied is different. In these altered physical circumstances, I do not feel unduly bound to apply, too literally, the statements about the appropriate range of allotment sizes in Policy Area 20 which the Planning Appeal Tribunal made in Fietz. The views expressed by the Tribunal cannot, of course, be ignored, but the proposed allotments, 7,855 square metres in area, would be smaller than the smallest allotments it approved in stage one of The Barracks Estate. While the Tribunal implied that an allotment with area of 8,000 square metres would fit "comfortably" into the concept of "about one hectare in area", it is far from certain that it would have determined that two adjoining allotments, of the size and configuration of those presently proposed, would fit so well within that concept.
30 It is not surprising that the provisions of Principle 1 for Policy Area 20 were the subject of much of the of the expert evidence. This principle purports to define a desired allotment size with reference to a number, whereas there is only a limited indication, generally, of what the Development Plan seeks in this policy area; the objective and other two principles of development control for the policy area being expressed in less definite terms.
31 While Principle 1 for Policy Area 20 is the only principle containing a quantitative policy, the allotment size to which it refers is qualified. This principle thereby contemplates some flexibility around the figure of one hectare in respect of the area of each allotment. While there is evidence that the average area of the allotments in The Barracks Estate is just over one hectare, the determination of what size new allotments should have should not, I consider, be based on what the average allotment size would be. Principle 1 does not say that the average allotment size within the policy area, or any part of it, should be "about one hectare". Rather, it says that development should be for residential purposes, and then that such development should be on allotments - I interpret this as meaning each individual allotment - having an area of "about one hectare".
32 Both expert witnesses - like the Planning Appeal Tribunal before them - analysed the expression "about one hectare in area" with reference to a range of allotment sizes. The planning witnesses agreed that the lower limit of an appropriate range should be closer to one hectare than the upper limit, because allotments which are too small can more readily threaten the distinguishing semi-rural residential character desired by the objective for the policy area than allotments which are rather larger than one hectare. In these terms, Mr Rumsby said that the area of each of the proposed allotments, being over twenty per cent less than one hectare, would be "stretching the friendship" - by which I understood him to mean straining the lower limits of what is acceptable. Ms Iwanicki, while being opposed to the areas of the proposed allotments, emphasised rather more the need she saw to keep the subject land in its present form to balance out the existing smaller allotments nearby that presently tend to weaken the desired semi-rural character. While there are, indeed, ranges of allotment areas within parts of The Barracks Estate and the estate as a whole, the limits of these ranges should not be taken as bench marks against which the appropriateness of new allotments should be assessed. In my opinion, any allotment now created "for residential purposes" should be about one hectare in area.
33 In simple area terms, I find that the areas of the proposed allotments would be at, if not below, the lower limit of what is meant by "about one hectare in area" in Principle 1 for Policy Area 20. This is notwithstanding the fact that the subject land is one of the largest allotments in the locality, and even in The Barracks Estate as a whole. Its road corner location is another relatively distinguishing feature, and it has a fairly regular shape (with sides roughly in the proportions of 1.4 to 1), which may be said to lend itself, readily, to division. In common with other land in the locality, the subject land is not in an area designated as being subject to any particular bushfire hazard or having particular landscape significance. It is connected to all necessary public utility services and there is no evidence before the Court that these services would not be capable of providing for such residential and ancillary uses as might hypothetically be established on an additional allotment in the form of proposed Lot 101. There is no suggestion that effluent generated by appropriate residential and ancillary use of either of the proposed allotments could not be disposed of within the boundaries of those allotments. Safe and convenient access to The Barracks roadway is already available to the part of the land which would be in proposed Lot 102 and could readily be gained to Lot 101 from a different leg of the roadway. These are all matters covered by various provisions of the Development Plan having "Council Wide" application. They are not in contention in this case, but although they are not unfavourable to division of the subject land as proposed, they are not sufficient to justify the granting of consent.
34 In the Council Wide provisions of the Development Plan, some emphasis is put on the need to preserve trees and other vegetation, including native flora and bushland remnants and to discourage the clearance of native vegetation: see Principles of Development Control 45 to 48, inclusive. While there would be no requirement to clear any of such vegetation on the subject land simply to create the allotments proposed (or even to divide them with a fence), the Council raised concerns about the level of clearance that would be likely to follow from the creation of Lot 101 in association with the development of a dwelling and other buildings which it is reasonable to expect would be proposed on that allotment in due course. The appellants sought to address these concerns by depicting on Lot 101 the indicative "building envelope". Hypothetical propositions of this kind regarding the potential development of allotments which are proposed to be created in an application only to divide land cannot, of course, be taken too far when considering the appropriateness or otherwise of the proposed division: Turner & Holmes v The City of Mitcham (1996) EDLR 334 at page 339. However, it is necessary to give some consideration to potential further development in this case because of what is contained in the following Council Wide Principle of Development Control:
"1 Development should take place on land which is suitable for the intended use of that land having regard to the location and condition of that land and the policies for the policy area concerned."
In these respects, the conditions for semi-rural residential use on the proposed allotments in relation to frontage roads are relevant. In her assessment, Ms Iwanicki considered that the division would be liable to lead to building development on the inside of the bend in The Barracks roadway, displacing vegetation which contributes significantly to the desired semi-rural character of the southern part of Policy Area 20. Mr Rumsby observed that the existing and potential dwellings on the proposed allotments would respectively address separate sections of The Barracks roadway and have largely open (ie unbuilt-on) settings along the frontages of those sections of the roadway. Thus, he saw the introduction of an additional dwelling on Lot 101 as not necessarily affecting, adversely, the desired character of the subject land. That may be so, but the probability of there being an adverse impact on the character of the land, particularly in proposed Lot 101, will inevitably be increased.
35 Each of the proposed allotments would have one average dimension of about 145 metres and the other of about 55 metres. With these proportions, and having a relatively attenuated shape, they would be unlike all nearby allotments, except those created by the recent division of original Lot 13. This difference may not be readily perceived from the abutting road or from adjoining or adjacent land, largely because of the primary orientation of the proposed allotments to different frontages of the road. However, the proximity to the boundary between the two proposed allotments of both the existing dwelling and any dwelling built within the building envelope on Lot 101, would, as seen by Ms Iwanicki, have a potential to inhibit reasonable opportunities for ancillary activities "not normally acceptable in urban residential areas" on each of the allotments in future. This may well be the case, even though there would be land on each allotment within which reasonable buffers between incompatible neighbouring uses of land could be established. The kinds of ancillary activities which might properly occur in Policy Area 20 are to some extent restricted by the provisions of Principles of Development Control 2 and 3 for that area, but there is no doubt in my mind that the kind of freedom to use their land which the owners of most of the existing allotments within The Barracks Estate enjoy is likely to be undesirably further limited by the configuration and size of the proposed allotments, especially as far as the future occupants of those proposed allotments are concerned. The interests of the existing occupants of abutting allotments would also be threatened; a matter of particular concern in view of the provisions of the following Council Wide Principle of Development Control:
"2 Development and the use of land should take place in a manner which will not interfere with the effective and proper use of any other land, and which will not prevent the attainment of the policies of that other land."
36 The Council feared that the development, if allowed, would create an undesirable precedent. There are other quite large allotments in The Barracks Estate, some of which are near the subject land. There are also other corner allotments and a number of allotments with an area and proportions which could inspire further attempts to create smaller allotments. While there was concern that the division of original Lot 13 provided an example of what could, more generally, occur, it is notable that this allotment was, at the time of its division, the largest in the original stage one of The Barracks Estate. By itself, the division of Lot 13 did not establish a precedent, but the division of Lot 15, as proposed, on top of and geographically close to the division of Lot 13, could. It is speculative to contemplate what could follow from allowance of the proposed division of Lot 15, (for example, the division of Lot 14, the next largest after Lot 13), but there is no doubt that such proposed division, would signal the owners of land in The Barracks Estate that allotments less than 8,000 square metres in area are now likely to be acceptable as being "about one hectare in area" and consistent with "a semi-rural character". Such a signal should not be given.
Conclusion
37 I have weighed carefully the circumstances of the proposed development and all of the submissions made to the Court in this case. With regard also to the evidence, I have assessed the proposed division of land against all relevant provisions of the Development Plan. In the result, I find that the development does not, in important respects, merit the granting of consent. The proposed allotments would not be, in my opinion, "about one hectare in area". It follows from this that they would be too small. They would also have inappropriate proportions and their configuration in relation to the location of the existing dwelling, and as compared to almost all other allotments within the nearby part of The Barracks Estate, would not be satisfactory. I consider, accordingly, that Objection 1 for Policy Area 20 would not be properly achieved.
38 This is not to say that further division of land in The Barracks Estate into allotments smaller than those which exist cannot occur in accordance with the Development Plan. However, the proposal in this case is not the right development to intensify the pattern of settlement in a way that would maintain a "semi-rural character with ancillary activities" of an appropriate kind and be consistent with the relevant provisions of the Barossa (DC) Development Plan generally.
39 The decision of the Court is that the appeal by Mr William Cormack and Mrs Lynda Cormack in the matter of the proposed division of land, referred as Development Number 960/D005/98, is dismissed. The decision of the Barossa Council is accordingly confirmed.
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