Wall and Wall v City of Mitchamnam No ERD-02-501 [2002] SAERDC 119 (29 November 2002)

Last Updated: 17 December 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

12/11/2002 to 13/11/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - proposed upper (third) level dwelling addition - refused by the Council - planning merits - issues of privacy loss, affect on view and vistas, visual impact to streetscape, visual impact to adjoining properties and consistency with residential character and land form considered - context of the Desired Character of the Residential (East Plains) Zone, considered - only visual impact of adjoining properties affected but not significantly - proposal compatible and consistent with Desired Character of the zone - departure from Council Wide height guideline, Principle 26(a) noted but insufficient to warrant refusal - alternative, similar development proposal granted consent by the Council and still operative, considered - appeal upheld - Council decision reversed - conditionally provisional development plan consent granted.

• Development Act 1993 ;
• Development Regulations 1993 , referred to.
• Attard v City of Charles Sturt & McNamara [2002] SAERDC 96, considered.

Representation

Appellants: PAMELA AND IAN WALL
Counsel: MR J MCELHINNEY - Solicitors: HUNT & HUNT

Respondent: CITY OF MITCHAM
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

ERD-02-501

Judgment No. [2002] SAERDC 119

29 November 2002

PAMELA AND IAN WALL

v

CITY OF MITCHAM

ERDC NO. 501 of 2002

[2002] SAERDC 119

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an applicant appeal against the refusal of the City of Mitcham ("the Council") to Development Application No. 080/1596/00, for the erection of a "second-storey dwelling addition". The grounds for refusal were:

"(a) Would detract from the character and amenity of adjoining development;

(b) Would detract from the desired character of the locality;

(c) Intrudes into the privacy of adjoining properties due to the impact of differences in scale; and

(d) Lacks articulation and relationship with natural slope of the site."

2. A summary of some of the relevant details in this matter are as follows:

Date of application: 7 December 2000 (registered 8 December)

Subject land address: 11 Glenwood Road, Springfield

Existing use: Detached dwelling (one and two storeys)

Proposal: Upper storey addition to dwelling (third storey or level)

Relevant authority: City of Mitcham

Appropriate

Development Plan: Mitcham (City) consolidated version 24 August 2000

Relevant area/zone: Residential (East Plains) Zone - Map Mit/6.

Date of decision: 7 May 2002

Appeal lodged: 1 July 2002

3. This matter was the subject of a pre-trial conference held on 29 July 2002, however no settlement was achieved and it proceeded to hearing.

4. Sworn evidence was provided by Mr A Stevens RAIA, an experienced architect, and by Mr J Smith, Mr A Rumsby MPIA and Ms J Lewis MPIA, all experienced planners. The Court noted that Council's professional planning staff recommended conditional consent to this proposal.

5. The Court viewed the subject land and the locality on 12 November 2002 and it received expert statements (including photographs and diagrams) from the four experts, together with amended proposal plans (Exhibit A3), and approved plans for the subject site (Exhibit A1).

The Subject Land

6. For convenience, I have generally utilised the description provided by Mr Rumsby, but modified to reflect by my own observations on certain aspects.

7. The subject land lies near the eastern-most elevated margins of the Springfield Estate, near the junction of Glenwood Road and Hillside Road, Springfield.

8. The subject land comprises Allotment 53 in Deposited Plan 3743, contained within Certificate of Title Volume 5324, Folio 410. It is roughly rectangular in shape with a tapered frontage to the curved Glenwood/Hillside Roads frontage. It has a frontage of approximately 39 metres, a total site depth of some 67 metres with an area of some 2,226 square metres. The land slopes down from south-east to north-west with a fall of some 8 metres.

9. The subject land contains a very substantial, architecturally designed, part one and part two-storey dwelling constructed in 1973. It is of face redbrick with grey/green concrete tiled gable roof, set at a 15 degree pitch and with wide eaves, and with a forward projecting covered entrance, setback generally some 15-21 metres from Glenwood Road. However, the existing dwelling setback is as little as 5.5 metres from its angled Hillside Road verge. It is also setback some 4.5 metres from the eastern boundary and extends for some 37 metres in length along that boundary.

10. The detached dwelling is developed with a single living level, comprising a formal entertaining/living area and master bedroom within the main east-west, street fronting wing, linked at grade with the north-south kitchen and bedroom wing, set over the partly benched in garage/workshop/storage areas below. An open balcony exists along the western side of the northern wing. A lightweight garage extension projects further north beyond the substantive dwelling, erected in 1974. In the northeastern corner of the subject land there is a small, freestanding timber clad spa and storage room of lightweight timber frame construction.

11. The existing site conditions are as set out in the Bruce Harry & Associates, Site Plan, Location Plan (No. 820/DA/01E, dated August 2000), stamped 01 October 2002 and part of a bundle of proposal plans marked Exhibit A3.

12. Key features of the site development include:

•	a one/two storey detached dwelling totalling some 700 square metres in total floor area, inclusive of 255 square metres of garaging and 445 square metres, or thereabouts, of single level living area;
•	a 1,650 square metres or thereabouts, open landscaped area comprising extensive and well maintained lawns, bordered and retained by low, capped, brick retaining walls, together with raised garden beds and substantial concrete pattern paved vehicle hardstand areas and driveway; and
•	substantial perimeter planting along its northern and north-western boundaries with a range of deciduous and evergreen specimens, including recent Native Frangipani trees planted some 18 months ago in place of a diseased Prunus tree, along the western boundary. There is also vegetation, but to a lesser extent, along the eastern boundaries and in the front garden area of the dwelling. The heights and approximate canopy spread of all shrubs and trees are identified in the schedule appearing on the Bruce Harry & Associates' Site Plan.

13. A valid planning approval (provisional development plan consent) exists for a similar upper, third level addition to the dwelling. Development Application No. 080/1295/2002, registered on 5 August 2002, after lodgement of the subject appeal and the pre-trial conference, was conditionally consented to by the Council on 3 September 2002. That proposal plan and consent were tendered as Exhibit A1. Hereinafter referred to as "the approved development", it is similar in most respects with the subject proposal (refer below), except that:

•	it is some 4.04 metres reduced in length at the northern end;
•	it has a consequential floor area reduction of some 40 square metres; and
•	it has external stairs on the western side to a screened landing and together with high-level windows, eliminates the proposed balcony (refer Exhibit A3 description below).

14. As that consent could be lawfully implemented, some regard must be given to this alternative in assessing and determining the proposal the subject of this appeal.

The Proposal

15. The proposal in this appeal is set out in Exhibit A3, comprising plans of Bruce Harry & Associates, Nos. 820/DA/01E, 02D, 03F and 04C. They are the culmination of a series of minor amendments to the proposal and I find that they do not change the essential nature of the proposal and hence they can be properly considered and determined by this Court.

16. It is proposed to construct an additional storey above portion of the north-south living wing, extending for a length of some 15.1 metres with a width of some 9.95 metres providing additional floor area of some 150 square metres. The upper level floor space is linked to an internal staircase, and by a proposed balcony staircase to the lower balcony and external staircase. When viewed from the west and north it will form and appear as a third storey above the existing two storey dwelling components, although from the east and the south it will appear as a second storey above the existing floor space and roof line.

17. In the words of Mr Stevens, "the proposed addition has been designed as one of three massing elements on the north-south axis which step progressively up from the north. These elements follow the contour of the land from the garage addition to the north, through the existing living level to the proposed upper storey addition."

18. The proposed floor space is disposed as two substantial study rooms and a store, together with a tea/coffee room, shower room, toilet and air-conditioning plant room. Fully glazed sliding door access is provided from both studies to the 2.5 metre wide by 11.5 metre long balcony, faced on its western elevation with fixed screening louvres (to be fixed at an appropriate angle), and opaque glazing. High sill level windows (1.7 metres above floor level) are provided to its eastern and southern elevations, whilst north facing windows to each room are to have a 1.2 metre sill height.

19. The height of the overall addition will be 10.4 metres from the existing, benched ground level (western elevation); appearing as 8.7 metres to the east; 10.4 metres to the ridge from the north; and 7.8 metres to the south (street frontage). From Exhibit A3 and drawing O4C, prepared by the architects from levels provided by the original architect in 1973, the proposed extension to the ridge is estimated to be some 9.7 metres above the original natural ground surface level and with the eaves being some 7.5 and 8 metres above that level.

20. The addition is architecturally designed in a manner consistent with the original design and adopting materials and colours from the original building construction, as well as similar proportions, built form, roof pitch and detailing. Minor rebated brick sections (approximately 25-30 mm) are incorporated into the eastern elevation.

21. The replacement landscaping shown on the Site Plan in the form of two Native Frangipani trees, along the site's western boundary, has already been implemented with the planting of advanced specimens in mid 2001. On the evidence of Mr Rumsby, such tree is "evergreen", though I am aware that it has slender and relatively sparse foliage characteristics and is not a bushy tree.

The Locality

22. All of the experts who gave evidence provided their views on the locality in their statements, Exhibits A2, A4, A5 and R2. The definition of the locality in this instance is to be based on the visual context and visual impacts of the proposal and such characteristics in the surrounds. I prefer the locality defined by Mr Smith, which is slightly more localised than the others, but nothing turns on that difference. In my view it extends for a distance of some 60 metres from the subject site boundaries in all directions.

23. The locality is characterised by large houses, mostly two or at least part two storeys in nature (some being very high, two storey dwellings in the order of 11-13 metres, and with at least one of three storeys) on large allotments (generally over 2,000 square metres), with wide frontages, substantial front and rear setbacks (usually greater than 10 metres) but varying side setbacks. Generally side setbacks are lesser (2-5 metres) on the upside (east side) of each site of dwellings on the northern side of Glenwood Road. The houses are set in tree-lined streets with grassed verges and well landscaped surrounds complemented by expanses of mature trees of both native and introduced species, including some deciduous.

24. House styles vary widely in the locality, most are of masonry (stone, brick or rendered) construction with pitched tiled roofs but some have flat metal roofs behind parapets.

25. The locality comprises undulating topography with gentle to moderate ground slopes with a prevailing fall to the north-west towards the coast and also towards the creek line bisecting this locality and the rear of Elmglade Road properties to the north of the subject site.

26. The locality is entirely residential in character and with a very high level of both visual and residential amenity. It is fairly typical of Springfield and is reflected in descriptive material under the heading "Desired Character" for the Residential (East Plains) Zone. It has a quiet, semi-rural ambiance.

Relevant Development Plan Provisions

27. I have considered the various provisions referred to by the experts and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter. These provisions are found in the Mitcham (City) Development Plan consolidated version 24 August 2000.

METROPOLITAN ADELAIDE

Objectives: 1, 9 and 43;

Principles of development control: 9, 10, 11 and 15.

COUNCIL WIDE

Objectives: 6, 9 and 11;

Principles of development control: 2, 3(c), 19, 20, 21(b), 26, 33, 129, 139, 140, 143, 144, 145 and 171.

RESIDENTIAL ((EAST PLAINS)) ZONE

Objective: 1.

Desired Character

Principles of development control: 1, 3, 4 and 6.

28. A significant number of the above relevant provisions are quoted in full under the heading Planning Assessment.

29. In accord with case law as I understand it, noting there to be some variances, and noting the authorities cited by counsel for both parties, I have approached decision making in this matter mindful of the following:

•	considering the Development Plan as a whole and all relevant provisions to the matter in question;
•	considering the Development Plan as a planning policy document, not a legal statute, as a practical guide for practical application, and superimposed upon an existing state of development;
•	considering the merits of the proposal as a whole, pros and cons (points of clear compliance with guidelines or departures from them) and the position that scarcely any proposal however good, is likely to meet every provision such that no legitimate objection can be taken to it;
•	considering the proposal in question and its alignment with the Development Plan, not comparing it with or preferring over or testing it against other alternatives or a so called ideal design solution or planning outcome;
•	integrating the various criteria and not considering them in isolation of each other and reconciling inconsistencies between them;
•	distilling the overall intent, purpose and desired character of the Zone sought to be achieved via the Development Plan and the context of the characteristics and facts about the locality and the subject land (both historical and current) as well as the proposal details and whether it is conducive to the desired character and amenity of the Zone; and
•	assessing the proposal on the above basis, balancing up all relevant considerations, including the evidence, what is seen on the view and the public and private interests, in determining, on a fact and degree basis in each case, whether the proposal is sufficiently in accord with the Development Plan to warrant consent.

Processing

30. The proposal was determined by the Council having regard to the Development Plan to be a Category 2 matter, formal public notification appeared to have been provided and four representations were received with two parties specifically objecting to the proposal. The Court notes that no person sought to be joined and that no adjoining residents gave evidence in the hearing.

31. No referrals were undertaken or required to be undertaken pursuant to Development Regulations 1993, Schedule 8.

The Evidence

32. In addition to their statements, the four experts also gave oral evidence, including particularly related to the accuracy of the superimposed depiction of the proposal, as viewed from the rear garden/pool area of No.7 Glenwood Road contained in Exhibit R2, Attachment 2, prepared by Mr K Malby, and compared to what was seen on the view from that vantage point and as shown on the Rear Elevation Section B prepared by Alexander & Symonds Surveyors, contained as an attachment in Exhibit A2.

33. On this point, all experts agreed that at least the west facing eaves and roofing of the proposed extension were likely to be visible above the intervening building elements on No.9 Glenwood Road, and only Ms Lewis felt that perhaps slightly more of the addition - part of the balcony with louvres/opaque glazing - may also be partly visible from that position.

34. In any event, there was no issue with regard to overlooking, but more one related to appearance and visual impact of such an element, from the rear of that property (No.7) and from the rear of No.9 Glenwood Road, or from positions on the property at No.12 Hillside Road, or from the public realm streetscape.

35. All experts agreed there was some impact but only Ms Lewis felt that it was significant enough to warrant refusal.

36. The Court notes that of the four experts, only Mr Smith was engaged post the appeal so that his evidence and opinion could not have been affected by the application preparation, assessment, public consultation and other processes. Having noted that, no aspersions are cast on the other three, in the light of their evidence.

Planning Assessment

37. Additions to a detached dwelling and to comprise a part three level form, may be properly considered in the Residential (East Plains) Zone, having regard to all of its provisions. It is neither a complying nor a non-complying form of development and dwellings (and additions) of such form are implied by the Desired Character at paragraph 6 (quoted below). Its acceptability in this instance will be determined on visual aspects.

38. The Desired Character for the zone (linked by Zone Principle of Development Control 1 and in fulfilment of Council Wide Objective 11), and localised to the Springfield area, provides the most specific overall intent of the Development Plan and the context for assessing the several visual considerations. The Desired Character is as follows:

"Residential (East Plains) Zone comprises the suburbs of Urrbrae (located within Residential (East Plains) Policy Area 7 shown on Map Mit/35), Springfield, and that portion of Netherby lying east of Fullarton Road as shown on Maps Mit/5 to 7. The area has established as one of Adelaide's premier residential areas, characterized by large, quality detached homes on extensively landscaped allotments.

The area is also notably characterized by high quality streetscapes which result from the presence of well maintained street verges, large mature street trees, and extensive landscaping undertaken on the frontage of most allotments. Dwellings have a high standard of appearance and are sited on allotments with a generous set-back from the road frontage.

The age and style of dwellings varies widely within the area. Many homes are large, some being regarded as "mansions" of two and three stories. Large allotments, usually in excess of 700 square metres and many significantly larger, are typical throughout the area.

The area is further enhanced by its proximity to the open spaces of the Hills Face Zone. The area is situated at the foot of the eastern escarpment of the Hills Face Zone, providing an open and natural backdrop. The special qualities of the area include views to both the city and the hills, an almost rural ambience, and relatively low traffic movement.

The above factors combine to create a zone regarded as being of a high standard of amenity, with a character that is quite unique from the rest of the metropolitan area.

New development in the area should maintain and reinforce the existing character, and comprise detached dwellings on large allotments. Buildings should be sited to maintain large landscaped frontages to public roads. Whilst two-storey and larger dwellings are appropriate within the area, the design and

siting of development should respect and not impact on the privacy and amenity of adjoining properties. ...."

39. Council Wide and Metropolitan Adelaide provisions have broader application and provide additional guidance to development in the context of the very detailed Desired Character sought for the Residential (East Plains) Zone.

40. Firstly, with regard to overlooking and privacy loss, on the evidence of all experts and with which I agree, the issue of minimising overlooking and privacy loss affecting the amenity of adjoining dwellings and private open spaces, has been satisfactorily addressed with the window and balcony design treatments. In my view the relevant provisions of the Development Plan (Metropolitan Adelaide Objective 9, paragraph 1, sentence 2; Metropolitan Adelaide Principle 10(a); Council Wide Principle 19(a) and (g), and Principle 20(d)) are sufficiently met, including with the greater length window in each of the proposed study and storeroom facing north.

41. Similarly, a minor issue of loss of, or change to views or vistas, as may be the case for windows of the adjoining dwelling to the east (No.12 Hillside Road) and positions in the front garden/driveway area of the dwelling on that site, is not supported by any specific Development Plan provision, though referred to generally in the Desired Character. In addition, "the approved development" would have virtually the same effect. I therefore place little weight on this consideration.

42. Thirdly, I turn to potential impacts on visual amenity, firstly with regard to the streetscape and the public realm. Relevant Development Plan guidelines concerning this issue are contained in Metropolitan Adelaide Objectives 9 and 43; and Metropolitan Adelaide Principle 9; Council Wide Objectives 6 and 11, and Principles of Development Control 19(d), 26(a) and (b), 129, 139 and 140; and Desired Character of the Residential (East Plains) Zone.

43. On the evidence of all of the experts, and with which I agree, the issue of visual impact on the streetscape and the public realm is also a relatively minor one. An upper level width of some 10-12 metres (including the roofed balcony area) will be partially visible on the eastern or right-hand side (viewed from the road) of the existing dwelling, which appears as a single storey form from Glenwood Road. It would create a two storey appearance but together with its modest, relatively low profile to that quarter (southern elevation - 3 metres above the existing roof line, 8 metres in total when viewed on the two-dimensional south elevation plan), setback and with an angle of viewing from the roadway, matching style, colours, materials and intervening landscaping, it will not be dominant or obtrusive, it will meet and not diminish the Desired Character sought for the Zone, and it will not impair the streetscape.

44. Turning now to the question of impact of the proposal on visual amenity enjoyed by nearby properties. This is the crux of the decision in this matter.

45. Especially relevant Development Plan guidelines are as follows:

METROPOLITAN ADELAIDE

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

....

"The design of individual buildings should be of high standard and related to adjacent buildings."

COUNCIL WIDE

"Objective 11: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas."

"PRINCIPLES OF DEVELOPMENT CONTROL

....

19 Side and Rear Property Boundary Set-backs (Refer Fig R/1)

Buildings should be sited with respect to property boundaries so as to:

....

(c) minimise the impact of bulk and scale of development on adjoining properties;

(d) create space between buildings for landscaping, maintain the character of the locality and help prevent a continuous façade of built-form viewed from the street."

....

"Accordingly, external walls of dwellings, other than party walls, should be set-back, -

....

(b) on lots greater than 450 square metres in area, not less than -

(i) one metre from one side boundary of the development site; and

(ii) three metres from the opposite side boundary; however a garage or open-sided carport may be built to the boundary ...

....

(e) the upper-storey of two-storey buildings should be designed so that the primary mass of the upper-storey is located within the side boundary building envelope shown in Fig R/1.

....

26 Building Height, Bulk and Site Coverage

(a) Dwellings should:

(i) not detract from the character and amenity of adjoining development;

(ii) complement the desired character and streetscape of the locality;

(iii) if greater than one-storey in height, minimise overshadowing and intrusion into privacy of adjoining properties and impacts due to differences in scale; and

(iv) not be greater than two storeys or 8.0 metres high as measured from existing natural ground level (as may be determined by survey, prior to any earth works being undertaken) to the highest point of the building.

(b) Dwellings proposed to be developed on a sloping site should be designed and sited so as to be in keeping with the slope of the land, by incorporating the following measures:

(i) floor space should be articulated and, where appropriate, of split level design to minimise cut, fill and obtrusiveness of the proposed building;

(ii) the roof-form and profile should be designed to correspond with the natural slope of the site.

(iii) Two-storey dwellings should be designed so that the building form and roof-form in particular are highly articulated, to minimise building bulk and visual impact.

....

129 Development should not impair the character or nature of:

(a) localities, spaces, buildings or structures;

....

143 Development should incorporate landscaping as an integral part of the design of the development.

144 Existing substantial landscaping should be retained in conjunction with development wherever practicable."

"RESIDENTIAL (EAST PLANS) ZONE

....

Desired Character

Residential (East Plains) Zone comprises the suburbs of Urrbrae (located within Residential (East Plains) Policy Area 7 shown on Map Mit/35), Springfield, and that portion of Netherby lying east of Fullarton Road as shown on Maps Mit/5 to 7. The area has established as one of Adelaide's premier residential areas, characterised by large, quality detached homes on extensively landscaped allotments.

....

Many homes are large, some being regarded as "mansions" of two and three stories.

....

The above factors combine to create a zone regarded as being of a high standard of amenity, with a character that is quite unique from the rest of the metropolitan area.

New development in the area should maintain and reinforce the existing character, and comprise detached dwellings on large allotments. Buildings should be sited to maintain large landscaped frontages to public roads. Whilst two-storey and larger dwellings are appropriate within the area, the design and siting of development should respect and not impact on the privacy and amenity of adjoining properties. ...."

From 7 Glenwood Road (west)

46. From the rear garden/pool area of the dwelling on this site, the proposed addition is likely to be partially visible above the roofline of the intervening buildings on 9 Glenwood Road. As referred to above, there is doubt about the accuracy of the photo montage prepared by Mr Malby (who was not called to give evidence), that was attached to the rear of the statement of Ms Lewis (Exhibit R2, Attachment 2), compared to the impression on-site and the line of sight evident from a Section with buildings plotted at relative levels prepared by Alexander & Symonds (Exhibit A2 attachment). It was agreed by experts that at least the roof form, potentially the gutters/eaves line would be visible and according to Ms Lewis, perhaps a little of the screened balcony.

47. I find that the potential appearance of a roof form of the type, pitch and length proposed and even the envisaged portion of the west facing balcony enclosures, is entirely consistent with and not contrary to all relevant Development Plan guidelines and the locality characteristics. I find that there will be limited, if any, perception of a multi-level dwelling but rather a dwelling with roofing set at a higher elevation consistent with the slope of the topography. In addition, it will be very similar to the "approved development" though of shorter length on the northern side, accepted by the Council as sufficiently meeting the Development Plan to warrant consent.

From 9 Glenwood Road (western side)

48. The visibility of the proposed addition (western elevation in Exhibit A3) from the rear garden and open spaces of the dwelling on this adjoining site, is screened for the most part by the tall northern wing of that dwelling, believed to house a swimming pool, by level differences brought about by an excavated lower level and retaining walls, and by vegetation (some four bushy trees, though some may be deciduous), along the western boundary of the subject land. Only from a relatively small portion of the rear garden, nearing the back boundary, will the existing two level dwelling on the subject land and third level proposed addition, be partially visible. In addition, it will be visible at a distance of at least 30 metres (with a 19.5 metre side setback), with vegetation intervening, and will meet, on the evidence of Mr Stephens, the building envelope guide for a two storey development in Council Wide Principle 19(e) of the Plan. The proposal minimises the impact of bulk and scale on this property to a reasonable degree.

49. Again, I find nothing inconsistent with the Desired Character of the Residential (East Plains) Zone, nor with the locality characteristics, though it is of a height and number of storeys exceeding that set down as a guide in Council Wide Principle 26(a), applicable to residential development across the whole Council area. Hence, there is somewhat of a contradiction between the two and it is also noteworthy that this would also be the case with "the approved development", though its north/south length is slightly reduced on the northern end.

50. In the context of paragraph 6, Desired Character for the Zone, and the locality and general Springfield characteristics, with large dwellings ("mansions") of two and three stories, and where certainly two storey buildings commonly exceed 8 metres, I find that the visual impact of, and departure from, that provision is not significant or sufficient to justify refusal of this application. I find the proposal to be compatible with and reflective of the Desired Character set out for the Zone.

From 12 Hillside Road (eastern side)

51. The eastern elevation (Exhibit A3) of the proposed addition will be partly visible from parts of the driveway areas, front garden, rear north-west side garden and upper level windows (south-west corner to a bedroom, but also north-west facing in other bedrooms - on the oral evidence of Ms Lewis) of the large property at 12 Hillside Road that has significant open space, both passive and usable. It will be partly screened by vegetation, fencing, the garage outbuilding on that site and by at least one tree on the subject site. The addition is to be setback 4.5 metres from the boundary and some 18 metres from the dwelling at 12 Hillside Road. On the evidence of Mr Stephens it meets Council Wide Principle 19(e).

52. I agree with counsel for the respondent that side setback can be decisive in a planning assessment (such as in Attard v City of Charles Sturt & McNamara [2002] SAERDC 96). However, the facts and circumstances differ significantly in this case, including the locality characteristics and Zone provisions.

53. I consider that the proposed addition will appear as a second level (two storey) addition, from this eastern side, with the third level only apparent from a westerly (or northerly) view, and only then, within the subject site or as described above under the heading From 9 Glenwood Road (western side), or through heavy vegetation to the north. The lower level is significantly benched/excavated into the landform and screened by fencing and vegetation and hence is not greatly, if at all, visible from the east. The impact of bulk and scale on No.12 Hillside Road is minimised to a reasonable degree.

54. Visibility of such a proposed addition from most positions in the property at 12 Hillside Road, will be virtually the same as of "the approved development", if implemented in the alternative. The greater 4 metre length of the proposed northerly addition is only likely to be evident to any significant degree from the rear north-west corner of the site at 12 Hillside Road and perhaps to a degree from an upper level window. The differences will be minimal as submitted by counsel for the appellant.

55. Again, I find nothing inconsistent with the Desired Character of the Residential (East Plains) Zone, nor with the locality characteristics and the perception from most of the property at 12 Hillside Road will be of a dwelling meeting Principle 26(a)(iv). Another taller, bushy tree could be planted on the subject land, near to the eastern boundary and adjoining the high-level storeroom windows to further diminish, in due course, visibility of the addition.

From Other Vantage Points

56. With regard to visibility from other positions such as the rear yards of properties to the north, or from properties to the south across Glenwood or Hillside Roads, I find the visibility or impact would be minimal, and screened significantly by vegetation, landform or building development.

Conclusions

57. I find that the proposal is well designed and maintains residential character and amenity of the locality and the area as sought by Metropolitan Objective 9 and Council Wide Principle 10 (and text thereafter). The proposal also accords with the Desired Character of the Residential (East Plains) Zone. The proposal does not affect the privacy of adjoining properties.

58. Whilst there will be some, varied visibility of the proposed addition and visual impact to adjoining owners, I concur with the opinions of Messrs Smith and Rumsby and Council's recommending planning staff, that it will be consistent and compatible with and reflective of the Desired Character for the Residential (East Plains) Zone and the locality characteristics, and that it sufficiently meets the Development Plan as a whole. In this context and that of "the approved development", with very similar characteristics, failure to comply with Council Wide Principle 26(a)(iv) is acceptable. In addition, whilst it is relevant in this matter, it is more relevant for new dwelling design and where existing natural ground level has not been altered by earthworks or other development.

59. All other considerations have been appropriately addressed in the design, including articulation and relationship to the natural slope of land on the site and adjoining sites.

60. As submitted by counsel for the respondent, I have given regard to the complying development list for the Zone, in Principle 3, which includes single storey dwellings and additions. However, Zone Principle 4 (and 6), and the Desired Character, allow and envisage dwellings and additions to them of greater storeys, to be considered and assessed on their merits against all provisions of the Development Plan. Hence, in this case, I place little weight on the comparison with what is complying development.

61. With regard to conditions of Provisional Development Plan Consent, those recommended by the Council staff (Exhibit R1 at page 69) varied only to give effect to the proposal plans (Exhibit A3), together with modifications to Condition 4 to ensure an appropriate angle of the fixed louvres proposed for the western side of the balcony and with an additional tree required to be planted on the eastern side of the dwelling in the 4.5 metre setback area; would be appropriate.

62. I find that the proposal will preserve the described and desired "special qualities" of Springfield, and there will be minimal impact on visual amenity of adjoining properties or of the streetscape.

Decision

63. The decision of the Court is that the appeal is upheld, the decision of the Council is reversed and provisional development plan consent is granted subject to the following conditions:

1. The proposal shall be developed in accordance with the details and amended plans contained in Exhibit A3 relating to Development Application No.080/1596/00, except where varied by the following conditions.

2. The external appearance, materials and finishes of the dwelling addition shall match or blend with the principal building as near as practical, to the reasonable satisfaction of the Council.

3. The additional landscaping proposed on the site plan, together with that required by Condition 4 hereafter, shall be established prior to occupation of the dwelling addition and maintained in good condition at all times to the reasonable satisfaction of the Council.

4. An additional tree with a mature height of at least 6 metres and of bushy screening characteristics and evergreen, shall be planted in the 4.5 metre setback area on the eastern side of the proposed addition, adjacent to the proposed storeroom.

5. The balcony screening shall be installed prior to occupation of the dwelling additions herein approved, and the fixed angled louvres shall be set at an angle to minimise downward view and maximise horizontal view, to the reasonable satisfaction of the Council, with such details being submitted to and approved by Council prior to the issue of development approval.

64. There will be an order accordingly.