Smith and Smith v Kingston District Councilnam No ERD-01-715 [2002] SAERDC 1 (4 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

04/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - appeal from refusal of consent - application to erect a two-storey detached dwelling - Cape Jaffa Zone - stage 2 of proposal - prior Stage 1 involved demolition of prior fish processing building and shack. Shack and replacement proposal are both detached dwellings - complying development argument considered, dismissed - location on low foreshore dune - Coast Protection Board advice received post-decision by the Court - procedural error cured -residential redevelopment acceptable in principle - two-storey nature of proposal and visual impact, dominance, skylining, sympathy with natural and the character of locality and first of this height on low foreshore dune considered - two-storey building of substantial floor area and bulk not acceptable visually - other aspects considered - privacy, delineation and management of adjacent coastal Reserve, effluent disposal - all potentially acceptable - appeal dismissed, Council decision confirmed.

• Development Act 1993 ;
• Development Regulations 1993 ;
• Public and Environmental Health (Waste Control) Regulations 1995 , referred to.
• Freckmann v City of Mitcham and Ors [1999] SASC 234; (1999) 74 SASR 56;
• Assessment Commission & Anor [1999] SAERDC No.58;
• KJ Phillips v District Council of Dudley PAT No.661 of 1984;
• Baker v Beachport District Council & Ors Judgment No.OE391 [1996];
• Lane v Duxsel Pty Ltd and District Council of Stirling (1988) 143 LSJS 454, considered.

Representation

Appellants: DEANE AND RONDA SMITH
Counsel: MR J. LEVINSON - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: KINGSTON DISTRICT COUNCIL
Counsel: MR K. TREDREA - Solicitors: NORMAN WATERHOUSE

ERD-01-715

Judgment No. [2002] SAERDC 1

4 January 2002

D SMITH AND R SMITH

V

KINGSTON DISTRICT COUNCIL

(ERDC No.715 of 2001)

[2002] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by D. Trotter (the applicant) for the owners D. & R. Smith, against the Council's refusal to Development Application (No.640/0047/01) comprising stage two of a proposal involving the erection of a two-storey detached dwelling. The Council refused the application on the basis that "... it will encourage improper and disorderly development due to its size, dominance, position on the allotment and location".

2. Some of the relevant details are as follows:

Date of application: Registered 28 May 2001

Subject land address: 23 (Lot 36) King Drive (formerly Cape Jaffa Road), Cape Jaffa

Existing use: Vacant (following stage one approval to demolish dilapidated fish processing building and a "shack")

Proposal: Erection of a two-storey detached dwelling with garage and carport incorporated

Relevant authority: Kingston District Council

Appropriate development plan: Kingston DC

Relevant zone/area: Cape Jaffa Zone and "Shack Area"

Date of decision: 22 June 2001

Appeal lodged: 9 July 2001

3. The matter was the subject of a pre-trial conference on Wednesday, 26th September 2001, however no settlement was achieved and the matter proceeded to hearing. Upon application to the Court, the names of Mr D. and Mrs R. Smith were substituted as the appellants.

4. When the matter came on for hearing, evidence was provided by Mr D. Smith (the male appellant, a real estate agent) and by Mr A. Rumsby MRAPI and Mr W. Gladigau MRAPI, both experienced planners. In the presence of the parties, the Court viewed the subject land and locality at Cape Jaffa. It also received a number of exhibits including proposal plans, cadastral plans, photographs, statements of planning evidence (with photographs) and other documents.

The Subject Land

5. The subject land, which is currently vacant, comprises lot 36 in DP 27532, and in Certificate of Title Volume 5781, Folio 390, with a site area of some 863 square metres and with dimensions comprising a frontage to King Drive of 31.4 metres, depth of 28.22 metres (west side) and 28.56 metres (east side) and width fronting an adjoining coastal Reserve (allotment 30) of some 29.68 metres.

6. The northern portion of the allotment sits on a low foreshore dune approximately 1 metre above the level of the allotment frontage and the surface of King Drive and perhaps a little more than 1 metre above the adjoining coastal Reserve. The more elevated portion of the site has had base material applied ready for the erection of the proposed detached dwelling. The site has no vegetation and has a low galvanised iron fence along part of the western boundary.

7. The evidence is that the former fish processing building ceased to be used for those purposes in about the middle of 1998, that part of it had been converted to "bedrooms", that the former "shack" dwelling on the site comprised three bedrooms, a kitchen and an external toilet and external laundry, all of dilapidated and substandard condition, and that all of these structures and associated septic tanks and soakage pits were demolished and removed from the site in accordance with the stage one, Council approval, in approximately June/July 2001.

The Proposal

8. The proposal is contained in amended plans (10 sheets) dated 14th November 2001 (Exhibit A1), substituted for the plans considered and refused by the Council, however the amendments are not substantial and they do not significantly change the nature of the proposal. In addition, they provide for deletion of a previously depicted external storage garage, though on the evidence of the male appellant, they may still seek to develop it later. The amendments reduce the roof height, increase the setback of the deck to the rear coastal Reserve boundary, "open" the carport to front and rear and provide some landscaping detail.

9. Stage one of the Application, approved by the Council on 4th June 2001, was for the demolition of the fish processing building and associated shack. That has now been implemented.

10. Stage two of the Application, the subject of this appeal, comprises erection of a two-storey detached dwelling with an enclosed garage and open carport under the main building structure and with the following summarised features:

•

Setbacks of the closest point of the proposed structure comprising; to King Drive, the deck by some 14 metres (15.2 metres to the wall); to the east, the eaves by some 250 millimetres (1 metre to the verandah and 4.5 metres to the wall); to the west, the eaves by 8.75 metres (9.5 metres to the wall); and to the north, the deck by some 500 millimetres (4 metres to the wall).

•

Floor areas comprising a ground floor of the dwelling of 59.32 square metres and of the garage/carport of some 72.69 square metres and at first level a dwelling floor area of some 132 square metres and open verandah area of some 112.8 square metres (mostly under the main roof line), comprising a total of some 377 square metres (areas as calculated by Mr Gladigau and not challenged by others). The proposal comprises a large dwelling by most standards, with an estimated cost in the order of $200,000.

•

Height of the proposed building to the walls and eaves of some 5.6 metres and to the ridge line of the hipped roof of some 7.4 metres above the levelled ground surface level, which as mentioned above is approximately 1 metre above the level at the southern (road) boundary and at the coastal Reserve northern boundary.

•

Other key features include three bedrooms, an open lounge/dining/kitchen area, a ground level rumpus room, two bathrooms, two toilets, a laundry, entry hall, an internal staircase and an external staircase on the eastern side under the roof line to the upper verandah, timber deck verandahs with a width of some 3.6 metres to the north, 3.0 metres to the east and 1.2 metres to the south, an enclosed garage with roller door to the southern, "road" elevation and with small windows and door to the northern, coastal elevation and with a carport also under the roof line open to the northern and southern elevations with a brick wall along the western side.

•	Materials comprise brick walling, aluminium windows, colorbond metal roofing, stainless steel balustrade wire with timber handrails; and colours comprise aqua blue roof and metal trim and beige brickwork (with samples viewed on site).

•	A rainwater tank of some 10,000 gallons, comprising green cladding and shown in a general position on the plans to the west of the dwelling, though on the evidence of the appellant, subject to review as to its position.

•	Septic tank and soakage trenches of some 18 metres in total length in three rows, located in the south-eastern quadrant of the site.

•	Generalised landscaping indicated with schedule given and marked on the plans generally to the east, south and western boundaries. No proposed fencing or boundary delineation was shown on the amended plans.

11. The nature of the development was not strongly disputed (though counsel for the respondent half heartedly inferred something to the contrary when cross-examining Mr Smith) and it comprises "a detached dwelling" as defined by the Development Regulations, Schedule 1, notwithstanding the variety of alternative terms used such as holiday house, residence, dwelling and "shack". Indeed, whilst the Macquarie Dictionary defines a "shack", as a very small, usually roughly built and poorly appointed house; cabin; hut; or a holiday house; for planning purposes, and as agreed by both planning experts who gave evidence, it should be defined as a "detached dwelling". The experts were in some disagreement as to whether a "shack" had to be a small dwelling, but both agreed a "shack" could be of two storeys. In this case such nomenclature has particular relevance when considering the general depiction of the site on the Structure Plan as within a "Shack Area", and other planning policies referring to residential development, as well as "Detached Dwelling".

12. The proposed upper level of the dwelling would enjoy panoramic views of the coast, the settlement of Cape Jaffa and inland rural areas.

The Locality

13. The locality includes the majority of the developed coastal settlement and township of Cape Jaffa. The definition of the locality boundary by both expert planners was very similar, though on my observations, it extends a little further to the east and west by some 50 and 80 metres respectively. Hence it extends from the subject land a distance of:

•	Some 330 metres to the north, including the Cape Jaffa jetty;
•	Some 80 to 100 metres to the south;
•	Some 400 metres to the east; and
•	For some 200 metres to the west.

14. It comprises some 19 dwellings, a tourist caravan park (described by Mr Gladigau to include a two-storey office, kiosk and dwelling, that also acts as the local community convenience store facility, a camping area, powered site area, cabins and an ablution building), commercial fishing activities south of the termination of the jetty (described by Mr Rumsby to include a number of buildings and structures involved in the receival, processing and storage of fish and seafood harvested from nearby waters worked by a small fishing fleet and with the area also including a number of fuel and water tanks, temporary containerised cool storage rooms, cyclone mesh fence and open and exposed service yards and storage areas), and a significant coastal Reserve (allotment 30 in DP 27532), with picnic facilities including tables, barbeque, lawned area, a new shelter shed and toilet block.

15. Of the dwellings a breakdown of their characteristics is:

- three of two-storey form (all south of King Drive);

-	four of brick walls, the balance with fibre cement or weatherboard or metal walls; and
-	about half with pitched roof and half with flat roofing.

16. The subject site is one of only seven allotments (made freehold by the Crown in 1989) on the northern side of King Drive and from west to east they are numbered allotments 31 to 37 and street numbered 13 to 25.

17. Cape Jaffa is a commercial fishing based small settlement and minor service centre focusing on the semi-protected jetty, with a "holiday" residential flavour having regard to the caravan park and general nature of much of the housing. It is worth noting in passing however that the Cape Jaffa Zone and the Structure Plan for Cape Jaffa, provide for a very significant increase in residential development, in the order of 20 hectares, possibly accommodating over 150 additional dwellings, generally located to the south and east of the dwellings, all on the southern side of King Drive.

18. In the words of Mr Rumsby, "the settlement is interspersed on either side of its King Drive frontage by open land being formal grassed reserve areas along the coastal frontage, with open pasture land between housing sites south of King Drive. The settlement is set behind the low primary dune identifiable, in part, behind its seaweed strewn beach and low reedy foredune. A grassed reserve separates and surrounds the coastal fronting settlement sites which are setback some 80 m to 90 m from the waters' edge".

19. At this point it is worth noting a few of the pertinent objectives and descriptive material relevant to Cape Jaffa:

CAPE JAFFA ZONE

"Objective 1: A zone containing residential development, tourist accommodation and facilities associated with the fishing industry.

The settlement of Cape Jaffa is located on the extremity of the cape in a protected coastal location. There are numerous shacks previously known as King's Camp, together with a jetty and various facilities associated with fishing activities.

A small caravan park and a few dwellings have been established inland adjacent to the Cape Jaffa Road. The general seclusion of Cape Jaffa and its natural attributes, including the vegetation and protected waters reinforce its suitability for holiday house development. Some of the land is low-lying adjacent to the coast and may be affected by coastal flooding; development will need to be built to specific levels to minimise the risk from coastal flooding."

KINGSTON (DC) (Council wide)

"Objective 50: Development of Cape Jaffa as a pleasant seaside township"

20. The amenity level for residential or public enjoyment was generally agreed by both planners to be fair - relatively high visually, due to the natural coastal environment and foreshore attributes, but marred in significant localised parts by poor quality or substandard buildings and structures and unkempt sites.

21. The character of the locality is that of a mixed use, small, low key settlement with a residential, commercial fishing, tourism and coastal flavour.

Relevant Development Plan Provisions

22. Both of the expert planners provided a list of the relevant provisions in the Development Plan (consolidated version 28th September, 2000) with those listed by Mr Rumsby being the more comprehensive. They are identified below:

KINGSTON (DC)

Objectives: 1, 2, 4, 7, 43, 50, 57, 70 and 72; and

Principles of Development Control:

1, 2, 3, 9, 13, 17-21, 23, 58, 60, 61, 62, 108. 109, 110, 113-116, 120, 121, 141, 149, 154, 156, 160, 161, 163, 166, 170, 175 and 179.

CAPE JAFFA ZONE

Objective: 1; and

Principles of Development Control:

1, 2, 3, 4, 5, 7, 8, and 9.

TABLE King/3 - Conditions Applying to Complying Development; and

MAP King/1 (Overlay 1), ENLARGEMENT B, and MAP King/32.

23. A number of the most relevant provisions are quoted in full under "Assessment" of this matter.

Processing

24. The proposal was given category 1 classification by the Council with no requirement for public notification, and although it was required prior to decision, pursuant to Development Regulations Schedule 8, Clause 1, the Council administration only referred the proposal to The Coast Protection Board, after the decision of the Council and lodgement of the appeal and such advice was received and provided to this Court (pp.9 and 10 of Exhibit R1). This oversight has been considered and the Court now has the benefit of such advice and recommendations. In these circumstances, and in the absence of any argument to the contrary, it is appropriate to cure this defect in processing, if the appeal is to be upheld (in line with past judgments and the approach of this Court where no party is prejudiced and where nothing turns on such error).

The Evidence

25. The evidence of Mr Smith generally covered the following:

•	Advice concerning purchase of the site in November 2000 and his ownership of the adjoining site (allotment 35);
•	Prior buildings and use of the subject site and his knowledge of the local area since childhood;
•	The intended purpose and use of the proposed dwelling for he and his family (including use of verandahs and carport access on the northern side);
•	Those dwellings in Cape Jaffa considered to house permanent residents;
•	The approximate setback distances of buildings on the seven allotments north of King Drive, from the adjoining coastal Reserve, varying from approximately 1 metre to 5.3 metres (refer Exhibit A4); and
•	Use of the coastal Reserve by locals and visitors.

26. The two planners who gave evidence held similar views on several aspects including the following:

•	Nature of the development;
•	Locality definition and features;
•	Redevelopment of the site and former "shacks" for residential development as being reasonable (notwithstanding Cape Jaffa Zone Principle 4 and the existing allotment areas being less than sought for new land division);
•	Proposed materials and colours acceptability;
•	That an effluent disposal solution was possible and the matter could be conditioned in any consent;
•	That floor levels above Australian Height Datum were acceptable; and
•	That the proposed residential use would not prejudice commercial fishing related activities (or expansion thereof) located to the east.

27. However, their opinions differed on a range of crucial aspects including generally the following:

•

Mr Rumsby was able to support the two-storey development with hipped roof and a high degree of "transparency" of the building (alluding to open verandahs and carport), well setback from King Drive, and with no greater obscurity to sea views than single storey development; whilst Mr Gladigau could not support buildings of two-storey height on any of the sites on the northern side of King Drive, including the subject site, having regard to Zone Principle 4, expectations in terms of redevelopment of the single storey "shack" buildings and visual impact aspects, outlined below.

•

Mr Rumsby was of the view that the greater setback of the proposed two-storey building on the western side was preferable, to allow spacing and views through to the coast, compared to a single storey building with greater ground floor coverage and likely width; whilst Mr Gladigau could not support this approach and preferred greater separation between the proposed two-storey building and existing or potential buildings on adjoining sites, particularly the setback to the verandah and overall roof (to the eastern boundary), and notwithstanding use of the words "walls" and "eaves" within Principle 17; on the basis of visual separation, privacy, shadowing and retention of views considerations.

•

Mr Rumsby considered that the rear setback to the coastal Reserve (.05 metres for the deck and 4 metres to the walls) was consistent with buildings on other sites adjoining and on the seven allotments north of King Drive; whilst Mr Gladigau was of the opinion that a greater setback to the coastal Reserve was desirable (supported by The Coast Protection Board advice to maximise setbacks) on the basis of separation to public activities on the coastal Reserve and to avoid restrictions of views from adjacent development. It was acknowledged by both planners that the proposal met the setback guidelines in Principle 17, with respect to distances to walls and eaves.

•

Mr Rumsby felt that the proposed two-storey building would not be especially skylined from the jetty; whilst Mr Gladigau felt that it would be skylined from parts of the jetty but he was also concerned with skylining and dominance from the coastal Reserve to the east and west of the subject site and from the main approach road (King Drive) to the township.

•

Mr Rumsby was of the view that whilst the proposed dwelling would be the most identifiable and potentially the highest and largest residential building in the settlement, it would have minimal if not a positive impact on visual amenity and not materially impact on the open character of the settlement; whilst Mr Gladigau was concerned with the extensive visibility of the proposed building from the jetty, the coastal Reserve and the main road approach and that it would be a dominant landmark building not designed in sympathy with the existing natural and built character of the locality in terms of scale and bulk, having regard to the provisions of Principle 149.

•	Mr Gladigau was concerned at the potential loss of privacy to the adjoining sites to the east and west; whilst Mr Rumsby was not concerned given the open, informal holiday house context and the open characteristics of those sites.

•

Mr Gladigau was concerned at the lack of definition of the boundary and possible vehicular access from the carport on the northern side onto the adjoining coastal Reserve; whilst Mr Rumsby agreed on the need for delineation/edge treatment (but not a fence barrier) to the coastal Reserve, but with no apparent concern at possible direct vehicle access onto the coastal Reserve from the carport.

28. The degree of independence and credibility of Mr Gladigau was challenged by counsel for the appellant on the basis of past work by he and his firm for the Kingston District Council, and having regard to the wording of a facsimile (Exhibit A6) from him to Council officer Mr G. Alexander. Whilst there may be some grounds to infer a risk of a lack of independence, the Court has been assisted by his evidence and does not place less weight on the views of Mr Gladigau as a result. It has considered those views in terms of their validity against the Development Plan provisions, just as it has with the views of Mr Rumsby.

Assessment

29. A technical argument was put by counsel for the appellant, that the proposal was a complying development having regard to the provisions of Cape Jaffa Zone Principle of Development Control 9 that states:

"The following kinds of development and those listed in Table King/1 are complying in the Cape Jaffa Zone subject to the compliance with the following conditions, where applicable:

(a)	the conditions prescribed in Table King/3; and

(b)	no building being erected, added to or altered on any land so that any portion of such building is erected, added to or altered nearer to the existing boundary of a road, than 8 metres.

Detached Dwelling ....."

30. The argument is that the proposal is for a Detached Dwelling (not disputed by either party), and that clause (b) is clearly met as the proposed building is setback significantly greater than 8 metres and approximately 14 metres from King Drive.

31. With respect to clause (a), TABLE King/3 specifies Conditions Applying to Complying Development, with two columns: the left-hand column "Kind of Development" and the right-hand column "Conditions".

32. Under the former, "Detached Dwelling (where connected to sewerage or a common effluent drainage scheme)", is listed and under the latter, conditions numbered 1 to 8 are listed, most with sub-headings such as Site Area and Dimensions; Height; Car Parking; Side and Rear Boundary Setbacks; Road Setbacks; Open Space and some without.

33. The argument is that as the proposal is not for a "Detached Dwelling (where connected to sewerage or a common effluent drainage scheme)", there being no such scheme in Cape Jaffa (which makes something of a mockery of the clause), and with no other potentially applicable term listed such as Detached Dwelling or Detached Dwelling (where not connected to sewerage or a common effluent drainage scheme), therefore the proposal is complying, and with no other conditions needing to be met other than Principle 9 (b) as mentioned above (that is met).

34. The counter argument put by counsel for the respondent is that such a position was clearly not the intention of the authors of the Development Plan (evidenced by other provisions for the Residential Zone and Council wide Principles), and that it would be an absurdity. The basis for this interpretation as I understand that which was put to me, is:

•

A reasonable reading of the provisions and words after Detached Dwelling, "(where connected to sewerage or a common effluent drainage scheme)", could only relate with planning purpose to condition 1, dealing with site area and dimensions, and with no relevance or relationship to the other conditions numbered 2 to 8, so that it should be transferred to that column, thereby more clearly requiring Detached Dwelling, in any circumstances to meet conditions 1 to 8.

•

That the Council wide Principle of Development Control 13 (a) and (b) which had similar structure and intent, sets out as guidelines applicable for residential development everywhere, in any zone within Kingston District Council, differing site areas and dimensions for Detached Dwellings (as well as for semi-detached and row dwellings), in the instances on a site where (a) connection to sewerage or a common effluent drainage scheme is available and (b) where development is not or cannot be connected to sewerage or a common effluent drainage scheme.

•

Cape Jaffa Zone Principles 4 and 7 support this interpretation having regard to the clear nature of those guidelines which encourage restriction of residential development in certain parts of the zone and which specifies minimum allotment areas of 1,000 square metres for residential development. These would be circumvented on the alternate interpretation.

35. With respect to Principe 13 (a) and comparing those details with condition 1 for "Detached Dwelling (where connected to a sewerage or a common effluent drainage scheme)", within TABLE King/3, there is a high correlation except for site areas. For a complying development, the area is somewhat higher (800 square metres in lieu of 700 square metres), compared to a consent use for consideration on merit, as would be expected. The inference is that where a site is not connected to sewerage or a common effluent drainage scheme the site area figure should be higher as specified in Principle 13 (b).

36. The Court finds that it would clearly not be the intent of the Development Plan authors to leave no numerical standards and no conditions for detached dwellings (where not connected to sewerage or a common effluent drainage scheme) in the Cape Jaffa Zone (or for that matter in the Residential Zone in Kingston). And accordingly, the Court finds that it would be an absurdity to adopt the interpretation put forward by counsel for the appellants. If it were to do so, for example, a complying detached dwelling development connected to sewerage or a common effluent drainage scheme in the Residential Zone in the main township of Kingston is required to meet a range of conditions numbered 1 to 8 (including height (1 storey), setbacks, car parking and others) but in the Cape Jaffa Zone, where there is no sewerage or common effluent drainage scheme, no conditions would apply to detached dwellings including significant aspects such as height, setbacks, parking and the like. That is, for example, a 2, 3 or even 4 storey or more detached dwelling could be built in that small coastal settlement with no planning assessment or control.

37. The provisions in TABLE King/3 are very poorly constructed and even if the words that are bracketed after detached dwelling, "(where connected to sewerage or a common effluent drainage scheme)", were placed in condition 1 after Site Area and Dimensions, leaving conditions 2-8 to apply in both circumstances, as submitted by counsel for the respondent, this is still not very satisfactory in terms of an alternative (larger) site area still not being required for a site not connected to sewerage or a common effluent drainage scheme, as is generally set out in the Council Wide Principle 13.

38. On balance, the Court finds that the proposal is not a complying form of development and thus is to be assessed on its merits, in the context of all of the provisions of the Development Plan.

The Development in Principle

39. Considering firstly the primary question of whether the development is appropriate in principle in the Cape Jaffa Zone, having regard to its land use and dwelling type, its location, its site area and its height.

40. From a land use perspective having considered the evidence of both planners, the prior part residential ("shack") use of the site, the Cape Jaffa Zone provisions (particularly Objective 1 which encourages residential development) and the Structure Plan designation of "Shack Area"; having regard to the decisions in Freckmann v City of Mitcham and Ors [1999] SASC 234; (1999) 74 SASR 56; and Australian Education Union (SA Branch) and Miksza v Development Assessment Commission and Trinity College Gawler Inc. [1999] SAERDC No.58 as to weight to be applied to Structure Plans and zoning intent; and notwithstanding Cape Jaffa Zone Principle 4 that discourages residential development north of King Drive; the Court finds that a residential redevelopment of the subject allotment is acceptable. The term "shack" is a colloquial term that is essentially a residential use of land and usually a detached dwelling and there can be no argument with the planning merits of upgrading the appearance, quality and design of substandard "shacks" on the land north of King Drive.

41. There are two further aspects to the issue of location of the proposed development.

42. Council Wide Principle 141 seeks effluent disposal systems (including soakage trenches) to be located not less than 100 metres from the mean high water mark, except where SA Health Commission standards can be met by a lesser setback.

43. There is a 3 metre wide strip across the southern "road" frontage of the site which has a length of 31.4 metres, and which meets the above setback, that could in theory, incorporate a septic tank and soakage trench system. Other siting and layouts may be acceptable to the Council who on the submission of counsel for the appellants (and not challenged by counsel for the respondent), is the relevant authority for determination of such matters pursuant to Regulation 6A, Public and Environmental Health (Waste Control) Regulations, 1995. Hence, locationally and geographically, the residential redevelopment of the site is not fatally flawed by this provision.

44. The Coast Protection Board, post the Council decision and lodgement of this appeal, advised that the development is considered to satisfy its flooding hazard policy with regard to levels and that the risk of erosion and accretions are uncertain and accordingly that the proposed dwelling, "should be located as far as practicable from the seaward boundary of the allotment, and as a minimum so that it is no further seaward than development on adjoining allotments on the north side of King Drive".

45. Given the building setbacks of adjoining development of 5.3 or 5.6 metres to the west (Lot 35) and approximately 2.9 metres to the next dwelling to the west (Lot 34); and of some 3 metres to a large shed adjoining on Allotment 37 to the east, and if the appeal is to be upheld, it would be appropriate for the dwelling verandah posts to be setback further than the 1.4 metres as currently proposed, and perhaps in the order of another metre to make a total of 2.4 metres. This should be practicable considering other implications.

46. With regard to site areas, whilst the subject site of 863 square metres is 137 square metres less than the guideline in Council Wide Principle 13(b) of 1,000 square metres for unsewered areas, for the reasons given in evidence by Mr Rumsby and not disagreed with by Mr Gladigau, the Court finds that the site is of an adequate site area for a residential redevelopment of the kind proposed and with adequate area for private open space, driveways and other functional use and for effluent disposal area.

47. Having regard to Council Wide Principle 17 which states that "development should not exceed two-storeys in height (vertical wall height of any point, excluding gables) and should not exceed 7 metres above natural ground level", this does not infer that such height is reasonable or a reasonable expectation in all parts of the Council area or all parts of the Cape Jaffa Zone, when due regard is given to all provisions in the Plan. In addition, the Structure Plan for Cape Jaffa with a designation of the subject site within a "Shacks Area" is considered to represent more a statement of fact (at the time of writing of the Plan), confirmed by the description under Objective 1, for the Zone, rather than providing any direction as to size, shape or form of further development. The Zone provisions are silent on this question, except Principle 9 and referenced to TABLE King/3 and condition 2 for Detached Dwelling (where connected to a sewerage or a common effluent drainage scheme) which specifies single storey for complying development.

48. The Court finds that, as used colloquially and in the Plan, the term "shack" can include a two-storey form and even of large floor size. In principle, the proposal is therefore of a kind and in a location that is further able to be considered in terms of its design and impacts.

Visual Impacts

49. An assessment of the visual impact of the proposal is the crux of determination of the outcome in this matter.

50. This is a subjective aspect and one where the planning experts significantly differed in their opinions, but with clear intent and direction provided by the Development Plan. In particular, the following provisions are relevant:

Kingston (DC) (Council Wide)

"Objective 27: The conservation, preservation or enhancement of scenically

attractive areas, including land adjoining water or scenic routes."

"Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects."

"Principle 17: Development should not exceed two-storeys in height (vertical wall height at any one point, excluding gables) and should not exceed seven metres above natural ground level.

"Principle 20: To ensure a reasonable separation between dwellings to minimize the potential for overshadowing of adjacent dwellings; and to create attractive streetscapes, the walls of dwellings, garages and carports should be setback not less than the following minimum distances from site boundaries:

Setbacks

Building Height Primary Road Secondary Road Side Boundary Rear Boundary

(No of storeys) Frontage Frontage (Other than of a

common wall)

..............

2 8 4 4 4

____________________________________________________________________________

Note: Distance excludes eaves.

Primary Road frontage is defined as the frontage having the lesser linear dimension and the Secondary Frontage as the frontage having the greater linear dimension."

"Principle 108: Development should be designed, sited, and landscaped, so as not to detract from the scenic amenity and rural character of land within the district."

"Principle 109: Development should exhibit a high standard of design with regard to external appearance, building materials, colours, siting and landscaping so as to preserve and enhance the character of the locality."

"Principle 110: Development should be designed, sited, and landscaped, as not to impair the amenity of the locality.

"Principle 149: Development within urban and tourist accommodation zones should be designed and sited in sympathy with the existing natural and built character of its locality. It should not be out of scale, of conflicting colour or materials or detract from any natural backdrop to the zone, nor project above the skyline visible from the coast."

51. With regard to height firstly, a small part of the roof marginally exceeds the 7 metre numerical guideline in Principle 17, at 7.4 metres, and of itself this is not considered fatal. In theory, the roof form could be modified further to meet the guideline. The Court noted the evidence, including photographic, that the former fish processing building may have been marginally higher than most of the single storey structures adjacent, though no more than 5 metres in height.

52. With regard to side and rear setbacks, particularly of the roof form and verandahs, (which in the view of Mr Gladigau was perhaps the planning intent of the relevant provisions), the setbacks could be marginally increased to both the eastern side and the northern boundary to more closely align with the Development Plan and interrelated provisions related to privacy, overshadowing and a reasonable building separation. However, that said, the proposal meets the guideline in Principle 20 as to setback of walls to boundaries and of some relevance was the negligible eastern setback of the prior fish processing building on the site.

53. The colours and materials are found to be acceptable, meeting the general guideline in Principle 109. Landscaping is indicatively shown only, however, it could be detailed and specified by condition of Provisional Development Plan Consent.

54. However, it is a question of compatibility of the proposed built form with the natural and built environment, its degree of prominence and impacts on both the visual amenity and character of this important part of the Cape Jaffa settlement and the locality, that is to be determined.

55. The seven allotments (including the subject site) are located on a low, raised dune, of between 1 to 1.2 metres above the adjoining King Drive and the adjoining coastal Reserve, surrounded on three sides by the coastal Reserve, and with public picnic facilities, recreation areas and conveniences adjacent. It is a highly visible area from the jetty and the coast and the two most eastern allotments (36, the subject site, and 37) are both highly visible from the main approach to the settlement along King Drive, for a distance of some 350 to 400 metres. It is an area where redevelopment needs to be undertaken sensitively. It is appropriate that unsightly or poor quality "shack" and other buildings be upgraded and redeveloped. The question is whether it should remain of low building profile and single storey or whether two-storey, taller, bulkier and more prominent development is acceptable.

56. The circumstances here are not dissimilar to those considered by the former Planning Appeal Tribunal in KJ Phillips v District Council of Dudley (PAT No.661 of 1984), for a redevelopment of a single storey "shack" at Hog Bay, Penneshaw, where that Tribunal found that the proposed two-storey detached dwelling in an almost exclusively single storey holiday house area, "... would be detrimental to and impair the amenity of the locality. It would stick out like a sore thumb".

57. The Court finds that the two-storey nature of the development proposed for the subject land is in conflict with Principle 149 in particular and with other more general amenity and character provisions. It will be skylined from many vantage points on the coastal Reserve and from certain points on the jetty and it will be dominant and not sympathetic with the natural, or for the most part, the built form character of the locality.

58. There is no doubt that a single storey detached dwelling development would be acceptable in principle and this would still enable significant views to be enjoyed by the occupants of the dwelling, though minimal view through to the sea from King Drive or the caravan park would arise in any event. Such views might be desirable, but not crucial.

59. The possibility of redevelopment of several of the other allotments in the front group north of King Drive, cannot be ignored. A new single storey dwelling has been recently erected on the most western of the allotments, and on the evidence, further redevelopment is likely to follow on the other "shack" allotments. Two-storey dwelling forms on the other allotments (including the subject site), are likely to dramatically change the character of the settlement as a whole, due to the prominence of the low foreshore dune. This is not supported by the Development Plan and Principle 149 in particular. The Court finds that the proposed building is large for a detached dwelling, even by metropolitan standards (377 square metres under the roof), and that it will be highly visible and quite dominant on the settlement and not in sympathy with the built form or natural character of the locality. Hence, on this basis the appeal fails.

Privacy

60. The two planners were in disagreement on this aspect, however, the Court finds that this consideration did not carry great weight in the light of the characteristics of most residential development (one or two-storey) with open yards, open space areas and lack of screening of privacy between dwellings. If the appeal was to be upheld, and having regard to Council Wide Principles 18, 19 and 20, some variation to the side setbacks, and an opportunity for redressing overlooking to the east could occur (opaque balustrade or other methods), to minimise the extent of the potential. However, that is now not necessary.

Adjacent Coastal Reserve

61. Council Wide Principle 154 states, "Development which abuts or includes a coastal reserve for scenic, conservation or recreational purposes should be located and designed in such a way as to have regard to the purpose, management and amenity of the reserve and to prevent illegal incorporation of reserve land into private land".

62. The Court is satisfied that with delineation of the northern boundary of the site by low vegetation or other edging treatment and by cladding or other opaque barrier on the northern, open side of the proposed carport (as agreed to by the male appellant), the intent of this provision would be met, taking into account its lack of clarity.

63. I held some reservations regarding the adequacy of area remaining on the site for the positioning of a septic tank and soakage trenches of sufficient length, either all more than 100 metres from the mean high water mark, or otherwise to meet the SA Health Commission standards (as sought by Council Wide Principle 141). However, on the evidence of both planners (though neither claimed expertise in this field) that a solution was possible and given the regulatory position of the Council in this area, pursuant to the Public and Environmental Health (Waste Control) Regulations 1995, the Court concludes that the matter could be appropriately conditioned if the appeal was to be upheld. Hence, the Court does not need to satisfy itself as a prerequisite that this matter can be fully designed and made acceptable prior to issuing any planning consent in this matter. This approach is consistent with that established in Baker v Beachport District Council and Ors, Judgment No.OE391 (1996) delivered on 19 December 1996; and Lane v Duxsel Pty Ltd and District Council of Stirling (1988) 143 LSJS 454 .

Conclusions

64. In conclusion, having careful regard to the evidence, submissions by counsel, consideration and a weighing up of all of the relevant Development Plan provisions, and an assessment of the site and locality characteristics, the Court concludes that:

•	the proposal is not a "complying development" but a development for consideration on its merits requiring consent; and

•	the visual and character impacts of the proposed substantial two-storey detached dwelling on the subject site, on the locality, on the Cape Jaffa settlement and on the immediate coastal areas, including the coastal Reserve, would be significant, and not desirable.

65. All of the other issues considered, though in some cases representing departures from certain Development Plan guidelines, were not fatal and several could be further addressed and dealt with via conditions, if consent was to follow.

66. The Court finds that the large, two-storey detached dwelling proposed for the subject land, is significantly at variance with the Development Plan.

67. Accordingly the appeal is dismissed and the Council's decision to refuse stage two of the Development Application is confirmed.

68. There will be an order to that effect.