Mckenzie v City of Burnside No ERD-02-266 [2002] SAERDC 89 (13 December 2002)

Last Updated: 22 December 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

29/07/2002 to 30/07/2002, 05/08/2002, 12/08/2002, 08/11/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for 3, two-storey dwellings and the removal of two significant trees - City of Burnside - consent refused - form, scale, appearance, density and access the principal issues in respect of the proposed building - the appropriateness of the removal of the two trees and the extent to which excavation may constitute `tree damaging activity' also an important planning issue - character of the locality found to be an important consideration - the presence of trees and the spatial arrangement of buildings important elements in the locality - as proposed, the development presented an unacceptable relationship with an adjoining building and as an element in the streetscape - excavation more likely than not to incur tree damaging activity - amendments canvassed - amended plan tendered and found satisfactory - appeal upheld - decision of the Council set aside - provisional development plan consent granted subject to 13 conditions.

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 , referred to.
• Toyias and Ors v Alan Sheppard Homes Pty Ltd and Ors [1997] SASC 6160; (1997) 69 SASR 42;
• Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully and Ors (1985) 42 SASR 584;
• Simpson and Ors v South Australian Planning Commission and Corporation of the City of Marion [1994] EDLR 262, considered.

Representation

Appellant: L & M MCKENZIE
Counsel: MR J LEVINSON - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF BURNSIDE
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

ERD-02-266

Judgment No. [2002] SAERDC 89

13 December 2002

L & M McKENZIE

v.

CITY OF BURNSIDE

ERDC No. 266 of 2002

[2002] SAERDC 89

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Mr M & Mrs L McKenzie want to construct a two-storey residential flat building comprising three dwellings at 5 Berry Crescent, Burnside ("the subject land"). Through their nominated builder, Scott Salisbury Homes, they lodged with the City of Burnside ("the Council") a development application for the proposed building on 20 September 2001. Although not specifically stated on the development application the proposal requires, by virtue of its size, configuration and driveway design, the removal of two "significant trees" (within the meaning of Section 4 and Regulation 6A of the Development Act 1993 and the Development Regulations 1993 respectively) and involves excavation for footings and driveways in the near vicinity of other significant trees on and off the subject land.

2. Upon receipt the Council treated the application as a Category 2 development and issued the appropriate notification. Fourteen representations were received. By decision notification dated 29 January 2002 the Council advised Scott Salisbury Homes that it had refused the grant of provisional development plan consent. The reasons for reaching its decision were expressed in the notification as follows:

"Development Application No: 180/1003/01/C2 by Scott Salisbury Homes be refused provisional development plan consent as it does not comply with:

Metropolitan Adelaide

Principles of Development Control

8, 9, 13, 14a, b, d, e

Council Wide

Objectives

5, 8, 11a, b, c, e, 16, 17, 28, 32

Council Wide

Principles of Development Control

18b parts 1 and 2, 23, 25a, 26a parts 1 and 2 and 3, 72, 74, 116a and c, 121 parts b, c, d, e, f, g and h, 138a, 141a2.

Residential R625 Zone

Objectives

1

Principles of Development Control

6a, b, 7a, b, c, d part 2."

3. The expression of the reasons for refusing the proposed development by listing all provisions of the Development Plan which might apply without clarification of the specific matters in dispute is a common but unhelpful feature in documentation presented to this Court. As a consequence, at the time of submitting amended plans for the purposes of reaching a settlement of the dispute, the applicant requested the Council to provide further and better particulars of its reasons for its decision in the event that a settlement was not reached. The documentation presented to the Court gives no indication that a response to that request was prepared.

4. After hearing submissions of the Council and reviewing Council's book of documents it seems that its principal concerns revolved around the extent to which the proposal is in conflict with those provisions of the Development Plan which speak about building density and built form appropriate to the existing character and amenity of the zone in which it is situated, the external impacts of the development (mainly in the nature of traffic safety, overlooking and loss of privacy) and the loss or potential loss of significant trees.

5. The McKenzie's were aggrieved by the decision and appealed to this Court. Since the conference held pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not result in a settlement the matter was set down for hearing.

6. When the matter came to hearing the appellants were represented by Mr Levinson and the Council by Mr Hilditch, both of counsel. The Court received several exhibits and heard evidence from:

•	Mr P Weaver (consulting traffic engineer)
•	Mr J Smith (architectural designer)
•	Mr M Lodge (consulting arborist)
•	Ms S Porter (senior planner)
•	Mr S Burton (consulting arborist)
•	Mr R McBryde (town planner)

7. At the commencement of the hearing I viewed the subject land in the presence of the parties and, with the consent of the parties, revisited the locality on a second occasion alone.

The Subject Land

8. No. 5 Berry Crescent is a large allotment by current day standards. It is unusual in shape (described by Mr McBryde as being a trapezoid) and has an area of around 1,935 square metres. It is more particularly described as Lot 213 of Filed Plan 19043 in Certificate of Title Volume 5229 Folio 223. The principal features of the subject land which have a bearing on this appeal are summarised below:

•	Frontage to Berry Crescent of 15.78 metres.
•	Rear-to-front (ie. westward) slope of about 15%.
•	Currently occupied by a single storey detached dwelling (rectangular shaped with low pitched roof) constructed along a north-south axis with its nearest point located about 8 metres from Berry Crescent.
•	Free standing double garage at the rear (south-eastern corner) of the land served by a single width driveway from Berry Crescent.
•	16 "significant trees" surround the existing dwelling. Most if not all trees are South Australian Blue Gums (Eucalyptus leucoxylon). Nine of these trees are located between the existing dwelling and Berry Crescent/western boundary.
•	The western boundary is defined along its length by a recently constructed retaining wall about 1.5 metres high.

9. Several features of the existing dwelling including its form, scale, position and orientation are of some import. It is about 32 metres long and has a pronounced horizontal form. Although it has a low pitched roof, this aspect of it is not a principal identifier of its character from the street. As I have said it is arranged along a north-south axis such that its principal orientation is westwards - presumably to gain the advantage of elevated views over the city and the coastline.

10. The dwelling is positioned such that its nearest point is 8 metres from Berry Crescent, 7.8 metres from the boundary of the land immediately to the south and 8 metres from the boundary of the land immediately to the north. The distance from the nearest point of the building to the western boundary is about 5 metres, which distance increases to 12 metres near Berry Crescent. All in all when proceeding eastwards along Berry Crescent from its junction with Borrow Drive, the dwelling occupies a particularly prominent position in the locality.

Significant Trees on the Subject Land

11. As I have said, the subject land has on it 16 significant trees. As I understand the evidence they are deemed to be significant trees because they fall into either or both classes of tree as defined in Regulation 6A(1)(b) and 6A(1)(c)(i). There was no dispute between the parties in this respect. Although 17 trees are indicated on Exhibit R3, I accept Mr Burton's statement that Tree 7 is not caught by either regulation. In any event its presence played no part in the proceedings.

12. Exhibit R3 identifies the trees by either number or letter consistent with a report and plan prepared by Robin Hosking Horticultural Consultant and submitted to the Council in the early phases of the assessment of the proposal. Trees 1-8 inclusive are to the rear and sides of the proposed dwelling. Trees A-I inclusive are to the front of the proposed dwelling. Trees A and B are proposed to be removed.

13. The evidence of Mr Lodge and Mr Burton did not point to the likelihood of adverse impacts of the development being imposed on Trees 2-4 inclusive. Both experts were on common ground with respect to Tree A, which is to be removed. Both agree that it is in poor condition and not worthy of retention. I accept that assessment.

14. Mr Burton's assessment of the remaining trees that are relevant in this matter is as follows:

"No. 1 - (refer to plan) this is the largest specimen which appears healthy the trunk circumference is 2.6m canopy spreads 10 metres with a height around 22m."

"No. 5 - trunk 2.25m spread 10m height 20m healthy."

"No. 6 - trunk .9m canopy spread 3m height around 6m a small suppressed specimen with upper crown die-back."

"No. 8 - trunk 1.8m spread 10m height 20m healthy."

"Tree B - trunks two 1.1 & .9m little canopy to the east about 6m to the south."

"Tree C - trunk 1.88m canopy spread 12m the largest in this group."

"Tree D - trunk 1.27 metres small canopy leans to the south 10m as one main limb."

"Tree E - trunk 1.7m canopy spread 10m"

"Tree F - trunk 1.78m canopy spread 10m"

"Tree G - trunk 1.4m spread 10m"

"Tree H - trunk 1.35m spread 6m to the west some root zone cut on the east side."

"Tree I - trunk 1.05m canopy spread 6m"

"These trees vary greatly in size and mostly are smaller than those at the rear with some being more vigorous than others due to their close proximities."

15. There is also a significant tree (Tree 1A) on 6 Berry Crescent near its common boundary with the subject land. The evidence suggests that it is in fair health and worthy of retention.

16. Mr Lodge and Mr Burton consider Tree C should be retained. Mr Lodge considered Tree B should be removed because its structure was compromised and is in only fair condition. Mr Burton opined it should be retained but agreed that it was the specimen of least value.

17. Council contends (as a direct consequence of excavation) that the proposed development not only seeks to remove two significant trees - which it says is in conflict with the provisions of the Development Plan - it also involves "tree-damaging activity", which term is defined in Section 4 of the Development Act 1993 as follows:

" 'tree-damaging activity' means -

(a) the killing or destruction of a tree; or

(b) the removal of a tree; or

(c) the severing of branches, limbs, stems or trunk of a tree; or

(d) the ringbarking, topping or lopping of a tree; or

(e) any other substantial damage to a tree,

and includes any other act or activity that causes any of the foregoing to occur but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree;"

18. Those trees which the Council contends may be the subject of tree-damaging activity are designated 1, 5, 6, 8, C, E, F, G, H and I.

The Land to the South and West of the Subject Land

19. The land to the south of the subject land (No. 6 Berry Crescent) is occupied by a dwelling, the nearest point of which is about 4.3 metres from the common boundary. The distance between this dwelling and the dwelling on the subject land is about 13 metres. The alignment of Berry Crescent in the vicinity of the subject land gives emphasis to the space between these buildings as an important feature in the streetscape.

20. As I have said previously, on this land there is a significant tree. The centre of the tree is about 1.5-2.0 metres from the common boundary and 5 metres from Berry Crescent. It is about 0.8 metres in diameter, 20 metres in height and has a spread of about 5 metres (Exhibit A7).

21. The land immediately to the west is vacant and has been the subject of what appears to be a recent land division and clearance. Adjacent the western boundary of the subject land is a corridor which will serve as a driveway for No. 5B Berry Crescent, which is an allotment in a "battle-axe" form. Adjacent that driveway is a relatively flat vacant allotment (No. 5A Berry Crescent). The boundaries between the driveway and the subject land and 5A Berry Crescent are not fenced.

The Locality

22. Mr McBryde and Ms Porter both prepared a locality plan for the purpose of their statements. Ms Porter's locality (included as Appendix C in her statement) is more extensive in its area than Mr McBryde's. Having reviewed the development in the near vicinity of the subject land I think that Mr McBryde's locality boundary is more appropriate to the circumstances. In the end however, those aspects of the locality that have a bearing on this matter vary little in each of the localities defined.

23. Mr McBryde found that the established character of the locality generally comprises:

• "A quiet secluded enclave of high quality housing with a high level of amenity and ambience contributed to largely by the remnant eucalypt woodland trees nestled around the development.

• Entirely of detached dwellings on large allotments of land, of which the southern and eastern abutting development is all two storey and on the western and northern side of Berry Crescent is single storey;

• The architectural styles comprise a predominant mix of hipped and gable roof forms in colorbond iron and concrete tiles with face brick walls (with the exception of the Mediterranean style dwelling at No. 2 Berry Crescent which has painted off-white bagged cement walls);

• Generally 8 metres or more front street set-backs with high quality landscaping including tall eucalypts;

• Side set backs which vary in width depending on whether development is single or two storey, with greater side set backs for two storey development and appropriate landscaping; and

• A streetscape appearance of landscaped open spaces around and between buildings with an abundance of high quality landscaping both within the Berry Crescent road reserve and within the abutting allotments (with the exception of Nos. 5A and 5B)."

24. Ms Porter's description of the principal aspects of the character of the locality generally accorded with that of Mr McBryde's. However, there were a few aspects of her statement that are of some import in the proper characterisation of the environs within which the subject land sits:

"..... The size of allotments in the locality varies substantially from 550 square metres (21 Royal Avenue) to allotments with areas of approximately 2000 square metres, .....

..... The architectural styling of the newer dwellings mimics elements of older styles of architecture, such as Victorian and Georgian. The front facades of these new dwellings have a high level of verticality and lack articulation.

The substantial two storey dwellings that form part of the new housing stock dominate the built form of the locality. These houses are two storey in height, the open front setbacks lack landscaping with any height, the dwellings are sited generally parallel to their street frontages and the lack of articulation and the strong verticality of the front facades result in dwellings which have a dominating and imposing streetscape presence."

25. I note, however, that No. 21 Royal Avenue mentioned by Ms Porter is not within the locality that I would consider to be appropriate in the circumstances.

26. When considered together, the foregoing generally characterises the locality. That said, the steep slopes and the alignment of Berry Crescent creates and serves to emphasise the space between buildings particularly on the high side of Berry Crescent in the near vicinity of the subject land and the importance of the trees as a major streetscape element. The impact on the openness aspect of the locality once 5A and 5B Berry Crescent are fully developed remains to be seen.

The Proposal in Detail

27. The proposed development involves the construction of a residential flat building comprising three dwellings and the removal of two significant trees. As I have said, it is also the Council's case that the development involves tree-damaging activity as a direct consequence of the excavations necessary for the footings of and the driveways servicing the dwellings.

28. Mr McBryde describes the proposed building thus:

"Three two-storey dwellings sharing a common driveway to undercroft double garaging cut into the subject land with other lower level living accommodation cut into the site at the same level as the garages;

The elevations show that the western elevation is two storeys and the eastern elevation is single storey;

The depth of cut for the lower levels is up to approximately 2 metres in depth for finished floor levels (calculated from the levels marked on the applicant's plans) and would be deeper at external wall locations for edge beams and piers;

Parapet roof form with no visible roofing;

Rendered external masonry walls and balcony facades with colours said to be "Overland 2656" to all external walls and panel lift doors and "Pompeii Ash 2667" to raised vertical feature parapet walls;

The overall length of the proposed residential flat building is approximately 41.5 metres and overall width varies from 6 metres for the southern elevation to approximately 12 metres for the northern elevation;

Each dwelling has a site coverage ranging from 150 square metres to 160 square metres in area represented by the first floor level;

Each dwelling has living areas ranging from 216 square metres to 222 square metres and comprises main bedroom with en-suite and walk-in robe, kitchen, dining, lounge, family, study and west facing balconies at the upper level and bedrooms 2 and 3 with separate bathroom facilities at the lower levels;

Rear private open space areas ranging from approximately 200 square metres in area to approximately 313 square metres in area;

Each dwelling is said to have a site area of approximately 600 square metres or greater;

The southern garage boundary and upper level family room is to be constructed approximately 1.4 metres (scaled) from the southern boundary (no dimension on the site plan); and

Levelled paved areas at the rear of each dwelling are to be cut into the land with retaining walls on the eastern side approximately 600 mm high with a battered slope on the southern end where the cut would otherwise be deeper."

29. Ms Porter describes the proposed dwellings as contemporary in their architectural detailing "incorporating rendered external masonry walls, parapets and balcony facades, colorbond panel lift doors, white powder coated aluminium window frames, and charcoal coloured paving to the driveway and exterior areas. The colours proposed are neutral, with the external finishes of the building including taupes through to browns."

30. Exhibit A4 compares the location and size of the proposed building with the existing house. Not surprisingly it is longer and deeper and has a larger "footprint" or floor area/site area coverage although not of an order one might expect with a building of the magnitude accommodation proposed when compared with the existing house. When compared with the footprint of the existing dwelling the proposed development is closer to the southern boundary (the nearest point being 1.5 metres from that boundary) and the northern boundary (the nearest point being 6.5 metres distant) but further away from the western boundary (8 metres minimum, 18 metres maximum). The top of the proposed building is, according to Mr McBryde in his oral evidence, about 1 metre higher than the top of the existing dwelling.

31. In his statement, Mr McBryde made mention of the excavation to occur. During the course of oral evidence the magnitude of the excavation was further defined. It is not necessary for me to describe this aspect of the proposal in detail. However, with respect to those aspects of excavation that have a bearing on the assessment of the proposal - particularly tree-damaging activity - it is necessary to take into account the need to excavate:

•	a distance of 0.5-1.0 metre outside the walls of Unit 1 and Unit 3 (in the vicinity of Trees 1, 1A, 5, 6 and 8); and
•	to depths of between
Ø	870mm-2700mm in the vicinity of Trees 1 and 1A;
Ø	1000mm-2000mm in the vicinity of Tree 8;
Ø	500mm-1000mm in the vicinity of Trees C, E, F, G, H and I.

32. Exhibit A6 was prepared by Mr Weaver and tendered as an alternative driveway design to that proposed on the proposal plan. It is my understanding that Mr Weaver considers the driveway slope as proposed to be satisfactory in the circumstances but suggests that relevant Australian Standards would be better achieved with the design in Exhibit A6. Other than providing the development with a more appropriate driveway profile the principal consequence of the amended design manifests itself in the need for additional depth of excavation near Tree C.

The Relevant Provisions of the Development Plan

33. The subject land is depicted on Map Bur/8 in the Development Plan for the City of Burnside. It is located in the Residential R625 Zone.

34. The sole objective for the zone is expressed in the following terms:

"Objective 1: A zone accommodating residential buildings of a form and scale compatible with the predominant character of the zone, as created by substantial allotment widths, garden areas and front and side set-backs."

35. The principles of development control for the Residential R625 Zone of most relevance to this appeal are as follows:

RESIDENTIAL R625 ZONE

Principles of development control

"3 Any allotment for the development of a residential flat building or group dwellings should have:

(a) a site area of no less than 500 square metres for each dwelling; and

(b) a frontage of no less than 20 metres."

"6 Any development comprising a dwelling or dwellings in any configuration (including any carport or garage but not including any verandah, pergola or other garden structure) should:

(a) have a bulk and floor space appropriate to the character and amenity of the locality in which the land is situated;

(b) provide space around buildings arranged in a manner which will reasonably maintain and enhance the predominant character and amenity of its locality in which the land is situated and provide landscaping opportunities consistent with that character and amenity;

(c) in no circumstances:

(i) have a floor area (measured from the external faces of the walls of the building) in excess of 40 percent of the site of each dwelling;

(ii) cover more than 60 percent of the site of the development with buildings, driveways and car parking areas; and

(iii) have a total floor area (measured from the external faces of the walls of the building at each floor level) contained in any dwelling where there is a floor level directly above another floor level exceeding 50 percent of the site area of that dwelling; and

(d) should provide on the site of any dwelling private outdoor living space:

(i) equivalent to half the floor space of the dwelling suitable for the exclusive use and enjoyment of the occupants of that dwelling;

(ii) directly accessible from that dwelling and capable of enabling an extension of the function of that dwelling for relaxation, dining, entertainment, recreation, children's play and the other functions ancillary to the residential use of the site;

(iii) located and screened to provide reasonable privacy from dwellings or private open space on adjoining premises;

(iv) which has a minimum dimension of 2.5 metres; and

(v) one part of which is capable of containing a rectangle measuring not less than five metres by eight metres with a surface gradient not steeper than 1-in-4."

"7 Buildings should be set-back from site boundaries (not being frontages to a road), in a manner which will avoid adverse impacts such as:

(a) overshadowing;

(b) overlooking;

(c) loss of privacy; and

(d) undue enclosure of private open space,

and in the development of a site, not having two or more intersecting road frontages:

(i) the set-back from side or rear boundary to any part of the external wall of a building with a floor level less than 1.5 metres above natural ground level, should not be less than 1.5 metres; and

(ii) any part of the external wall of any building having a floor level greater than 1.5 metres above natural ground level, should not be less than four metres from any side boundary of its allotment."

36. Also for consideration are the following Council Wide provisions:

COUNCIL WIDE

"Objective 2: A compact urban area."

"Objective 5: No adverse effect on the amenity or the predominant character of the area in which development is undertaken."

"Objective 10: A range of housing types to suit the needs and preferences of all sections of the population of the City of Burnside."

"Objective 11: Residential development which:

(a) promotes the efficient use of urban infrastructure and services;

(b) increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council area;

(c) provides dwellings of a high standard of design and siting to ensure a high level of amenity, privacy and security for their occupants and neighbours;

(d) take advantage of solar energy; and

(e) promotes and retains community identity."

"Objective 16: Provision for the safe and convenient movement of people and goods by road."

"Objective 28: A high standard of design in respect of the appearance of development."

Principles of development control

"18 Dwellings containing two storeys at medium densities should be:

(a) located:

(i) along major roads and public transport routes;

(ii) adjacent centres and commercial areas;

(iii) on sites large enough to provide appropriate set-back of buildings from the boundaries of the site; and

(iv) where public open space is available in close proximity to the site of the development; and

(b) design in a manner which:

(i) contributes positively to the streetscape and the locality in which the land is situated; and

(ii) does not unreasonably create overlooking or overshadowing internal and external living areas of other dwellings within the development or on adjacent premises."

"19 In the development of dwellings:

(a) there should be a screened area of dimensions and a size which will enable, practically, clothes drying and the storage of household garbage receptacles to take place for use with each dwelling and with convenient access to that dwelling;

(b) there should be access through a carport or garage with that dwelling or otherwise, other than through the dwelling, to the enclosed private yard of that dwelling of sufficient height and width to maximize access to and use of that yard space; and

(c) there should be provided on the site of any dwelling, a parking area or areas of sufficient size for two cars:

(i) including a covered area sufficient for the parking of one car; and

(ii) with one additional parking space for each two rooms, in excess of three rooms which may reasonably be used as bedrooms."

"20 Access driveways which are used by two or more dwellings should be at least six metres in width for a distance of six metres along the driveway from the point where the driveway connects with a public road."

"21 Access driveways which service two or more dwellings should be constructed to a width appropriate to the number of dwellings being serviced by the driveway and should be not less than:

(a) 3.5 metres for two dwellings; and

(b) 4.5 metres for three or more dwellings provided that such driveways are widened at appropriate locations to a width of not less than six metres to:

(i) provide adequate manoeuvring areas to avoid the need for vehicles to reverse through or off of the site of the development; and

(ii) to provide adequate opportunity for the safe and convenient passing of two vehicles."

"23 The space between buildings in residential areas as viewed from the street, should be compatible with the predominant character of the streetscape to which the building relates."

"24 Dwellings should not be located under the canopy of any large tree which should be retained on the site of the development due to the contribution of the tree to the landscape, environment or amenity of the locality."

"26 The set-back of a building from the boundary of a road, or the boundary of any land shown as being required for road widening on a plan deposited under the provisions of the Metropolitan Road Widening Plan Act, 1972, should:

(a) equate with the predominant building set-back distances established within the locality in which the buildings is situated;

.....

(e) not in general be less than:

(i) three metres in the Residential R350 Zone;

(ii) six metres in the Residential R450 and Residential R550 Zones; and

(iii) eight metres in the Residential R625 and Residential R750 Zones."

"29 Dwellings and buildings associated with the development of dwellings should be designed and constructed in a manner and of materials which will positively contribute to any streetscape to which the development relates by the avoidance of:

(a) large blank walls facing a street;

(b) garage or carport doors facing a street the individual or aggregate width of which exceeds more than one-third of the width of the site of the dwelling measured at the front alignment of the building;

(c) garages or carports extending forward from the front of the dwelling in a manner which dominates or detracts from the appearance of the development; and

(d) materials which present either excessively bland or strident appearance."

"56 Development should provide safe and convenient access and egress for all vehicles and pedestrians, as may be expected to be associated with that development."

"59 The number, location and design of points of access to and egress from a road should be such as will minimize:

(a) interference with the free flow of traffic on roads in the locality;

(b) interference with the function of any junction, intersection or device for the control of traffic;

(c) queuing on the road;

(d) right turn movements;

(e) the gradient of any exit driveway;

(f) the intrusion of traffic into any adjacent area in substantial residential use; and

(g) the need to remove street trees."

"60 No point of vehicular access or egress between the site of development and a road should be nearer to another access or egress point on the site than six metres."

"64 Development should have associated with it off-street parking space sufficient to accommodate, satisfactorily, the vehicles of those who are likely to come to the land, including the vehicles used by or otherwise conveying customers, visitors, employees and service personnel."

"102 Native vegetation should not be cleared if it:

.....

(c) has high amenity value;

(d) contributes to the landscape quality of an area;

....."

"121 Each building should be located and designed in respect of its:

(a) height;

(b) size;

(c) scale;

(d) colour;

(e) form;

(f) siting;

(g) architectural style; and

(h) materials of construction,

to harmonize with conditions desired as indicated by the objectives or principles of development control for the relevant zone, or otherwise the predominant character of other buildings in the locality."

"124 Landscaping, including the establishment of plant species suited to the land, should be provided and maintained with development in order to:

(a) complement the landscaping provided by adjacent development and enhance the visual appearance and character of the area;

(b) shade, define and create windbreaks for pedestrian paths and spaces;

(c) screen, shade and enhance the appearance of car parking areas; and

(d) screen service yards, loading areas and outdoor storage areas."

"138 Building development on a site with frontage to a road, where that development is:

(a) large in bulk or height in comparison with other buildings with frontage to the same road;

(b) to have a highly reflective or brightly coloured external surface; and

(c) not well screened from view by vegetation, land form or other buildings, should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as to minimize the visual prominence of the building when developed."

37. In the main, the foregoing provisions relate to the built form and functional aspects associated with the development. Those provisions of the Development Plan most relevant to significant trees or tree-damaging activity are those which follow:

COUNCIL WIDE

"Objective 32: The conservation of significant trees in Metropolitan Adelaide which provide important aesthetic and environmental benefit."

Principles of development control

"139 Where a significant tree:

(a) makes an important contribution to the character or amenity of the local area; or

(b) is indigenous to the local area and its species is listed under the National Parks and Wildlife Act as a rare or endangered native species; or

(c) represents an important habitat for native fauna; or

(d) is part of a wildlife corridor of a remnant area of native vegetation; or

(e) is important to the maintenance of biodiversity in the local environment; or

(f) forms a notable visual element to the landscape of the local area;

development should preserve these attributes."

"140 Development should be undertaken with the minimum adverse affect on the health of a significant tree."

"141 Significant trees should be preserved and tree-damaging activity should not be undertaken unless:

(a) in the case of tree removal;

(1) (i) the tree is diseased and its life expectancy is short; or

(ii) the tree represents an unacceptable risk to public or private safety; or

(iii) the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within a Bushfire Prone Area; or

(iv) the tree is shown to be causing or threatening to cause substantial damage to a substantial building or structure of value; and

all other reasonable remedial treatments and measures have been determined to be ineffective.

(2) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.

(b) in any other case;

(i) the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree; or

(ii) the work is required due to unacceptable risk to public or private safety; or

(iii) the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within a Bushfire Prone Area; or

(iv) the tree is shown to be causing, or threatening to cause damage to a substantial building or structure of value; or

(v) the aesthetic appearance and structural integrity of the tree is maintained; or

(vi) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activities occurring."

"142 Development involving ground work activities such as excavation, filling, and sealing of surrounding surfaces (whether such work takes place on the site of a significant tree or otherwise) should only be undertaken where the aesthetic appearance, health and integrity of a significant tree, including its root system, will not be adversely affected."

38. The text following Objective 32 is of some relevance and is express thus:

"Trees are a highly valued part of the Metropolitan Adelaide environment and are important for a number of reasons including high aesthetic value, conservation of bio-diversity, provision of habitat for fauna, and conservation of original and remnant vegetation.

While indiscriminate and inappropriate significant tree removal should be generally prevented, the conservation of significant trees should occur in balance with achieving appropriate development."

The Evidence in Brief and Assessment

39. I first want to deal with the overall principal planning issues and later those more technical aspects of the significant trees.

40. Ms Porter was called by Mr Levinson in support of the appellants' case. Her statement of evidence was structured around six questions put to her by Mr Levinson, which questions sought her opinion in respect of the effect of the development on the following: The character of the locality, the significance of the proposed setback distances, privacy, solar radiation, the contribution that the two significant trees proposed to be removed make to the character and visual amenity of the locality and the development options and design solutions to avoid tree-damaging activity. Ms Porter's opinion is summarised as follows:

•

The proposed development reflects the scale and form of the existing development in the locality and the siting of the existing dwelling on the subject land - an attribute reinforced by the maintenance of "the essential vegetation". The proposed development complies with most of the qualitative standards. For these reasons, together with the proposed design articulation, the choice of single building form and visual buffering afforded by the retained landscaping, Ms Porter concluded that the proposal will not have a detrimental impact on the character and amenity of the locality.

•

In Ms Porter's view the discrepancies between the desired setback distances (front and side) and those proposed are acceptable. In respect of the front boundary setback, Ms Porter opined that the 2 metre deficiency does not bring the proposal into conflict with Council Wide Principles 26 and 138 because of the ameliorating effect of the high void to solid ratio of the balcony to which the measurement is made, and the manner in which the dwelling is oriented to the street. As to the matter of side setbacks, Ms Porter drew the Court's attention to the fact that most quantitative measures had been met with the exception of that applying to the setback distance to the southern boundary. Although in this case the setback is in conflict with Zone Principle 7(d)(ii), Ms Porter opined that neither the height nor length of the wall concerned results in the undue enclosure of an area of open space.

•

The western façade of the proposed building appeared to be that aspect of the development over which matters of privacy were raised. Ms Porter concluded that no unreasonable conflict arises with respect to Council Wide Principle 116 in light of the almost identical orientation of the existing building, the improved siting and setback distances (from the western boundary), landscaping proposed and the fact that no dwelling exists on the allotment immediately to the west.

•	In view of the proposed building height, the orientation of the proposed building and the siting relationships with adjoining land and development, no adverse effect will arise in respect of solar radiation and overshadowing (Council Wide Principles 7 and 115).

•	With respect to the matter of the removal of significant trees and tree-damaging activity, Ms Porter concluded:

"The poor visual quality of the two trees and the presence of fifteen other significant trees on the subject land and numerous other trees in the locality result in the two trees contributing little to the character and amenity of the local area and not forming notable visual elements. The removal of both trees will not result in a reduction in the visual amenity of the locality. Indeed, the removal of the two poor quality specimens will improve the positive visual contribution made by the remaining significant trees.

.....

Design stages considered included the retention of the driveway in the existing location adjacent to the southern boundary, with the garaging to be located at the rear of the subject land. This proposition raised concerns relating to the topography of the land, the location of significant trees at the rear of the subject land and the area of the site utilised as driveway to the detriment of the provision of private rear yards. In this respect, the rear of the site would have been predominantly utilised as driveways and garaging. This presents amenity impacts for the future occupants of the site, and due to the elevation of the land at the rear of the site, the potential for amenity impacts on adjoining dwellings. This is not a desirable or reasonable design solution for the development of the site.

The alternative driveway location for the subject land is on the western side of the site, as proposed by this development. In relation to the significant trees, this proposal resulted in the retention of the greatest number of significant trees and the retention of the better quality trees, in terms of visual contribution to the streetscape and the health of the trees. The built form is also setback further from the western site boundary than the existing built form, increasing the setback to the trees located on this area of the site. Whilst two trees are required to be removed in order to facilitate the driveway access, these two trees exhibit the least quality of all trees on the subject land.

Whilst the retention of the driveway in its existing location would not necessitate the removal of the two significant trees, this proposal has other issues associated with it which make it a less desirable scheme than the one proposed. On this basis, this alternative development option is not reasonable in the context of other impacts it poses."

41. When I questioned Ms Porter about the apparent conflict with Council Wide Principle 19(b), she opined that the connection between the rear private yard of Unit 2 and the front of that dwelling is necessary but is not a daily or weekly requirement. As an alternative to a direct connection, Ms Porter opined that the tenure of the development could be so arranged as to enable the occupants of Unit 2 to have rights of access around the rear of either of Units 1 or 3.

42. Mr McBryde's statement involves an extensive assessment of the proposal against the provisions of the Development Plan. Where appropriate he identified those areas of the proposed development that satisfied the relevant guidelines. In this respect, Mr McBryde thought the subject land was suitable for a two-storey form of development and, providing the design and planning matters identified by him were overcome, it is capable of sustaining the proposed density. He considered that the proposal posed no traffic issues of substance and opined that a driveway narrower than envisaged by Council Wide Principle 21 would be suitable. Notwithstanding, he opined that the development was in conflict with the Development Plan in the following principal ways:

•	The amenity of the locality is impaired because the architectural style of the proposed building is unrelated to the adjacent detached dwellings. Mr McBryde expressed his views in the following terms:

"The built form is alien to the character of the locality. The locality comprises predominantly face brick walls, hip and gable roof forms of custom orb profile colorbond steel or concrete tiles. The introduction of a parapet roof design and the use of rendered cement walls in this locality does not display sufficient merit and is likely to interrupt the rhythm of the streetscape. These elements are not part of the character of the locality. No. 2 Berry Crescent is the only dwelling to use a rendered finish. This dwelling is relatively unobtrusive with a much smaller visible frontage compared with the prominent location and extent of visible external walls that would be exhibited by the application."

•	Unreasonable overlooking into No. 5A Berry Crescent will occur from the balconies and the daytime living areas of Units 2 and 3 (thus bringing the development into conflict with Council Wide Principles 18, 116 and Zone Principle 7).

•	Unit 2 lacks independent access from its rear private open space to the main driveway (contrary to Council Wide Principle 19(b) and Zone Principle 7).

•

"[The proposal] does not meet Zone Principles 6(d) and 7 relating the space around buildings in a manner which will reasonably maintain and enhance the predominant character and amenity of the locality in which the land is situated and provide landscaping opportunities consistent with that character and amenity, or comply with the side boundary set-back in PDC7." (statement p.23)

43. In all, Mr McBryde opined that when these aspects are taken together the proposal does not meet, to a satisfactory extent, the qualitative requirements of the objective for the Residential R625 Zone.

44. I turn now to the evidence of Mr Lodge and Mr Burton in relation to the impact of the development on the significant trees. I have previously determined those trees of most relevance in this matter. Neither expert in their statement sufficiently canvassed the issues that are to be dealt with. However, they are not entirely responsible for this state of affairs. The proposal plans - perhaps unintentionally - masks some aspects of construction (excavation in the main) which are germane to the assessment of the impact of the development on the trees previously identified. The plan also failed to identify Tree 1A on the adjoining land as a matter to be considered. Furthermore and notwithstanding the survey of existing site conditions having been undertaken, some trees are inaccurately plotted. As a consequence, the oral evidence concerning the matter of significant trees and tree-damaging activity became a drawn-out affair.

45. Mr Lodge, in his statement, established certain principles about the root system of trees which are of relevance in this matter. On page 7 of his statement several of these principles were expressed as follows:

"Roots grow where moisture and oxygen are available. The majority of absorbing roots are found in the top 300mm of soil even extending to the soil surface and into any leaf litter. As such, feeding roots, in particular, are susceptible to damage from compaction and soil disturbance. Lateral roots are also usually found near the soil surface. Vertical or Sinker roots grow downward off the lateral roots, providing anchorage and increasing the depth of soil exploited by the root system. Sinker roots are generally found within 1-2 metres of the trunk. The downward growing tap-root of young trees is usually choked out by expansion of roots around it, or is diverted from its downward growth by unfavourable growing conditions.

Roots may extend laterally for considerable distances, depending upon the tree species and soil conditions. In some cases the roots may only spread as far as the canopy edge or drip zone, whereas in other species and conditions they may extend up to 7 times the crown radius. Roots of trees grown in the open often extend two to three times the radius of the crown. The extent and direction of root growth is more a function of environment than genetics."

46. He also introduced the concept of a Critical Root Zone (CRZ) and the Zone of Rapid Taper (ZRT). The former, he defined, as the area defined by a circle around the tree having a radius calculated by multiplying the diameter of the trunk of the tree (at 1.5 metres) by 10. The area so prescribed as the area within which works should be excluded. However, there is apparently some "room to manoeuvre" in prescribing the appropriate CRZ to the circumstances at hand. Although the relevant tree diameters vary from 300-800mm (thus implying CRZ circles of between 3-8 metre radii) he opined that prescribing a circle of about 5 metres radius around each of the trees concerned is a reasonable approach in this instance.

47. Mr Lodge defined the ZRT as a circle of 2-2.5 metre radius from the trunk of the tree. Within this zone are the roots which give the tree stability.

48. Mr Lodge's evidence may be summarised thus:

•	Tree A is a suppressed specimen with significant deadwood and die back. Tree B has a very poor structure at the base and is prone to failure. In response to a specific question posed to him by Mr Levinson, he said this:

"Given the extent of the driveway around the trees marked for removal no matter how the driveway were to be constructed it is likely that damage will occur and subsequent tree decline can be expected."

•

The excavations required for the footings of the building (particularly the garage for Unit 3 and the northern component of Unit 1) are most likely to be laterally and vertically outside of the ZRT in respect of Trees 1, 1A, 5, 6 and 8. Although the excavations are within the CRZ of each of those trees, Mr Lodge could not, with any certainty, determine the extent of interference with the feeder roots that might occur as a consequence of the excavations. As a rule of thumb he opined thus (when speaking of Tree 1A):

"What shouldn't occur is more than 25% of that area [the 5m CRZ] removed or covered or excavated and within that 25% that excavations should be done in a sensitive manner." (transcript p.61)

•	Excavations of the nature intended or necessary in this instance should be carried out with an air-knife, which facility - if correctly applied - exposes rather than severs the roots during the excavation process.

•	Damage to trees can be incurred during construction. It is therefore necessary to install a Tree Protection Zone (TPZ) roughly equivalent to the CRZ.

•

To maintain the health of Trees E, F, G and H (if I understand his evidence correctly) the use of a "geo-mattress", specifically designed sub-bases and an "ecoloc" paving system is necessary to "significantly reduce the risk of tree decline and/or structural failure". However, he went on to say that this technique "will not eliminate it entirely" (statement p.14). It seems that this opinion was expressed on the assumption (as put to him by Mr Levinson in written questions - statement p.13) that there is to be "no change to the existing soil profile".

•	The major excavations near Tree 1A would result in a 10-15% chance of damage occurring, which damage he placed at the low end of the scale of possible damage.

49. Mr Burton was on common ground with Mr Lodge with respect to the general principles that should be applied to assess the effect of the development on the trees. He agreed with the importance of the CRZ but informed the Court that the 5 metre radius from the tree trunk should be viewed as an absolute minimum. Apparently the "drip-line" of the tree (which in some cases for the trees on the subject land well exceed this figure) is another perhaps more suitable indicator. He concurred with Mr Lodge with respect to the ZRT and the general structure and depth of the roots which stabilise and feed trees.

50. After extensive oral evidence the following relevant opinions emerged:

•	A direct relationship exists between root disturbance and the health impact on the visible parts of the tree. A "rule-of-thumb" suggests that if 20% of the roots are disturbed, a similar proportion of the crown will be affected by way of thinning and/or die-back.

•	Using an air-knife to expose roots during excavation is appropriate but not a solution in itself. Once exposed, an important root cannot generally be retained by re-directing it.

•

Management both pre and post construction can be successfully applied to minimise, retain or even improve tree health (particularly if they are - as in this case - lacking the appropriate nurturing). However, where there is severe disturbance to the roots (he cited Tree 1 as an example) there is little compensation that could be afforded to the tree to retain its health. That said, Mr Burton opined that root disturbance is not likely to cause tree death.

•	In the absence of root disturbance the use of the geo-mattress for the construction of the driveway is an appropriate way of reducing the risk of decline. However, he opined that a 300mm excavation can have a significant impact on the CRZ.

•	With respect to some of the trees under scrutiny in this action he opined that:
Ø	A large part of the CRZ of Tree 1 will be disturbed to an extent that stability may be affected. He said that "minimal damage" is the best outcome.
Ø	Tree 1A is likely to suffer some thinning since the secondary root system will be disturbed.
Ø	Excavation of the depth intended around Tree C will not avoid root disturbance and thus its health is at risk.
Ø	The driveway, with some adjustment, would be satisfactory under certain conditions - they being where the excavations are minimal and where Mr Draper's advice (Exhibit R1) is followed.
Ø	Provided minimal excavations occurred in the vicinity of Trees 3, 4, 5 and 6 their health should remain manageable.

51. I also understand from questions put to him by Mr Hilditch that Tree 8 is at risk because it is in similar (but not identical) proximity to the building as are Trees 1 and 1A.

52. That said, Mr Burton indicated to the Court that the species of tree concerned were resilient to disturbance.

53. Having considered in quite some detail the evidence of particular relevance, the submissions of counsel, all of the relevant circumstances, the principal features of the subject land and its locality and the relevant provisions of the Development Plan, I have reached the following conclusions.

54. Firstly, the principal issues in dispute that reside in the proposed built form in the Residential R625 Zone (form, scale, appearance, density, access, setbacks, landscaping and the like) call for a consideration of the findings of Debelle J in Toyias and Ors v Alan Sheppard Homes Pty Ltd and Ors [1997] SASC 6160; (1997) 69 SASR 42. There is no need for me to provide background for His Honour's decision for it is a case often cited in this Court. Suffice it is to say that there are several findings that are on point in the matter before me. His Honour gave consideration to the provisions of all residential zones in Burnside within the context provided by several Metropolitan and Council Wide provisions of the Development Plan. The conclusions of His Honour that are most relevant in this instance are expressed as follow:

"There can be little doubt that the overall effect of all of these objectives is that there is an intention to increase the density of dwellings but only in appropriate areas. Objectives 5 and 11 clearly indicate that the policy of increasing residential density is not to apply generally throughout the residential zones (some of which are quite large in Burnside) but only in appropriate locations. The objectives applying to residential zones are not compatible unless the policy of urban consolidation, as expressed in the policy of an increased density of dwellings, is to apply only in appropriate areas.

..... the combined effect of objectives 5 and 11 is to require an examination to be undertaken of the locality in which the development is proposed and a determination to be made whether the proposed development would adversely affect that amenity. It is not difficult to call to mind many residential areas containing detached dwellings with a high residential amenity which would be adversely affected by, say, one or more residential flat buildings or by a variety of other dwelling types. To state that fact is not, however, to assert that there will not be occasions where an appropriately designed residential building other than a detached dwelling might be introduced into an area with a high residential amenity without adversely affecting the amenity of that area. .....

..... There is no reason in principle why on an appropriate site a suitable form of residential building other than a detached dwelling should not be permitted in a locality otherwise consisting of detached dwellings. Much will of course depend on the site, the nature of the proposed development and the character and amenity of the residential locality.

.....

When considering an application for a form of residential building which is not identical to that which already exist in a residential area, it will be necessary to assess whether the locality is suitable for the proposed building. That assessment will of necessity involve an assessment of the character and amenity of the locality, an assessment of the nature, design and effects in planning terms of the proposed development, and an assessment of the impact of the proposed development on the character and amenity of the locality. .....

In other words, the process of urban consolidation allows for redevelopment of existing residential sites or residential areas with a high residential amenity provided that the site and the proposed development are suitable and the development will not adversely affect the character and amenity of the locality.

In other words, the Development Plan for Burnside does not contemplate that a mere compliance with the quantitative standards will necessarily permit the intrusion of a denser form of residential development into a residential locality comprising detached dwellings only."

55. Furthermore, in the event that the existing significant trees on and off the subject land are considered to be an important component of the locality's character, His Honour's approach to the assessment of this development in the Residential R625 Zone might provide particular weight to those objectives and principles of development control which seek to conserve significant trees or avoid tree-damaging activity. Council Wide Objective 32 and its accompanying text and Principles 139(a), 141(b) and 142 come into play in this respect.

56. What then are the essential ingredients of the locality's character? Mr McBryde, I think, captured the essence of the locality when he said that its character is mainly established by the presence of high quality detached dwellings (set mainly on large allotments and generally spacious settings with high amenity and ambience) and large and numerous eucalypts within private and public spaces. These elements are most prominent in the streetscape where the spacious settings are observed, mainly but not exclusively, in the large space between buildings, which aspect is emphasised by the particular siting of buildings near the subject land and in the general vicinity of the curve in Berry Crescent. The subject land is a particularly prominent site in the locality due in part to its location on the curve and the presence of the long, oblong shaped building upon it and the extensive number of substantial trees in the foreground and background. Thus the principal change to the character of the locality that might result in any new development will be observed from the west and south-west and be given emphasis on the subject land because of its position, shape and elevation.

57. Secondly, I do not share Mr McBryde's concern that the architecture of the building - being different from that which generally exists in the locality - in itself (subject to the matters which follow) renders the proposed development incompatible with the predominant character. When read as a silhouette, the form of the building is not very different from that which now exists on the subject land. I do not think that those provisions of the Development Plan which speak to the need for compatibility between building form and its architecture and the predominant character should be applied in such a way as to obviate design innovation or architectural expression, particularly in situations such as this where there already exists a variety of building forms.

58. Thirdly, the scale of the proposed building is, in my view, considerably larger than that which now exists. This in itself need not be to its detriment. However, the scale difference manifests itself mainly from the streetscape and encloses an area that now exists between the existing building and the building on No. 6 Berry Crescent to such an extent as to come into conflict with Zone Objective 1 and Principle 6 and Council Wide Principle 23. Since a principal characteristic of the locality is derived from the generous space between buildings (particularly between two-storey buildings), the provisions of Zone Principle 7(d)(ii) should have been given greater weight in the design. It appears that it has not. That part of the dwelling having a floor area in excess of 1.5 metres above natural ground level is setback a distance well short of that which is sought in the principle. As I have observed previously, the fact that the architecture may differ from that which exists in the locality does not necessarily render it incompatible. However, in this instance, the difference in architectural style together with the inadequate setback distances serves to emphasise the inappropriate streetscape impact of the proposed building.

59. Fourthly, having carefully weighed the evidence of Mr Lodge, Mr Burton and Mr Smith, I have concluded that the proposed development has had insufficient regard to the provisions of the Development Plan that speak about the conservation of significant trees. I am aware of those provisions of the Development Plan which advocate a balance being achieved between conservation and appropriate development and have factored this into my conclusion. I have also taken into account the extent to which the presence of the significant trees is a fundamental element from which the character of the locality is derived and the evidence from both expert planners who opined that the subject land is suitable for redevelopment of the general nature proposed. With these planning principles in mind I consider that the provisions of Objective 32 and Principles 139 and 141 would be satisfied were the proposed development to involve only the removal of Trees A and B. I have reached this view after considering the poor health of Tree A, the high possibility that Tree B may be, or may become unsound and the restriction that both trees may place on any future development of the subject land that is consistent with the provisions of the zone when properly applied. However, this is not the end of the matter. When one carefully considers the evidence given by Mr Lodge and Mr Burton about the impact on and the extent to which excavation within the CRZ can safely occur and the detailed assessment provided by Mr McBryde as to the extent and depth of excavation needed for the construction of Units 1 and 3 and the driveway serving all three units, it is more probable than not that the health and integrity of Trees 1, 1A, 5, 6, 8, C, E, F, G and I will be adversely affected. Accordingly, the proposal in this respect is brought into conflict with Principle 142. Since the presence of these trees plays an important role in defining the established character of the locality, any action that may lead to the decline of the health of the remaining trees or substantial change to their appearance (occasioned by remedial pruning to ameliorate the effects of root disturbance - which action is indicated by both experts) will bring the proposal into conflict with Council Wide Objectives 5, 11(b) and 32 and Principle 18(b)(i).

60. Fifthly, I do not consider the matters raised by Council in respect of privacy and traffic safety are supportable. With respect to the matter of privacy I accept the evidence of Ms Porter. The orientation of Units 2 and 3, their distance from the western boundary, the presence of trees and other related factors all point to there being reasonable protection being afforded to any future dwelling on No. 5A Berry Crescent. As to the question of traffic safety nothing was put to me that indicated that the proposal is in conflict with the relevant provisions of the Development Plan.

61. Finally, I accept the evidence of Mr McBryde when he opined that the design of Unit 2 is in conflict with Council Wide Principle 19(b). Direct access from the rear of a dwelling to its front without moving through the principal part of the dwelling is not universally important to the proper function of a residential development. The need for independent access will depend on many factors including the internal design of the building, the nature of the development (high rise apartments are less likely to need such an arrangement) and the size and nature of the rear yard space. In this instance the site area allocated to Unit 2 and the proposed floor area is akin to that which one would expect on a "standard" residential development. I have little doubt that a corridor from the back will be required, which corridor would not be satisfied by a refuse chute as suggested by the appellants. Furthermore, it was not demonstrated that the (uncertain) tenure arrangements would overcome the problem to such a degree as to satisfy Principle 19(b).

62. Mr Levinson put to me that the question of tree damaging activity is a matter that should be left for a separate occasion and determination. His argument proceeds along these lines. Excavation for the construction of the dwellings will involve ground disturbance. By using appropriate skills, once roots are exposed (but not damaged) only then can it be established with any certainty that tree-damaging activity is to occur. If it is the case that such activity is necessary, then and only then should an application to the Council be made. I reject this approach. I do not think that it is the proper course for this Court to leave unresolved an issue of importance and "cast the die", the consequences of which will be the triggering of significant and potentially irreversible investment and building works on the subject land.

63. On 9 September 2002, I issued a memorandum to the parties advising them that, for the foregoing reasons, the proposal in its form presented to the Court and the likely impact of excavation on several significant trees that will occur as a consequence of construction, are in substantial conflict with several relevant provisions of the Development Plan to such an extent as would warrant the appeal being dismissed. However, I went on to say that the proposal did not fail because the type of land use proposed varied from that which exists. I was of the view, as were Mr McBryde and Ms Porter, that the subject land is capable of accommodating a building of the density and height intended. Unlike Mr McBryde, I also held the view that the architectural style proposed, while different from that which exists in the locality, is not incompatible with the predominant character. Properly designed, the intended dwelling type having the general building form proposed could sit quite comfortably on the subject land without detracting from the character or amenity of the locality. It is the size and siting of the building that is the cause of the conflicts. It appeared to me that with some appropriate adjustment the proposal might be brought into sufficient conformity with the Development Plan when the relevant provisions are properly applied (see Toyias).

64. In my memorandum I posed the following question: Should this appeal be dismissed and the appellants choose the course they wish to take or should the opportunity be afforded for the appellants to revisit the design?

65. With the suggestion of design modification in mind, Mr Levinson said in his final address that the appellants were prepared to undertake certain modifications to the proposal to address the conditions proposed in the staff report (Exhibit R1) or otherwise raised in evidence if the Court considered such modifications were required.

66. As I saw it, the basic problem with the proposal was that the total length and width of the building resulted in the necessary excavations and batters intruding into the CRZ of Trees 1, 1A, 5, 6 and 8, the position and floor level of the garage for Unit 1 required excavation that threatens the health of Tree C and the excavations for the driveway threatened the health of Trees E, F, G, H and I. To overcome these problems I advised that:

•

The building must be made shorter in length to such an extent as to keep major excavations (including excavations beyond the walls for the purposes of damp proofing, form work, access etc) clear of the CRZ of the aforementioned trees (5 metre radius). Provided the general profile of the building remained as proposed, such an amendment would, as a consequence, increase the distance between Unit 1 and the boundary common with No. 6 Berry Crescent to an acceptable extent.

•	There should be a convenient and appropriate link between the rear yard and front area of Unit 2 consistent with that which is intended in Council Wide Principle 19(b).

•

The level of the driveways and pathways should be elevated (in some cases to a considerable extent) to ensure that the excavation necessary for appropriate drainage, geo-mattress and other surface and subsurface requirements is minimised (in the order of 300mm) within the 5 metre radius of Trees C, E, F, G, H and I and all other trees in the near vicinity of the perimeter pathways.

67. I provided the opportunity for the appellants to consider these changes. In doing so I advised the parties that I was mindful that such changes may not result in a project that is suitable to the appellants' intended market segment and that changes of this nature may influence the financial viability of the project. I was also cognisant that design amendments could be so extensive as to render the development a substantially different proposal than originally submitted to Council and this Court (see for example: Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully and Ors (1985) 42 SASR 584, Simpson and Ors v South Australian Planning Commission and Corporation of the City of Marion [1994] EDLR 262).

68. The appellants took up my invitation to reconsider the design of the development. When the hearing resumed on 8 November 2002, amended drawings were tendered (Exhibits A8, A9 and A10) together with other relevant plans (Exhibits A11 and A12) and supplementary statements from Mr Lodge (Exhibit A13) and Mr McBryde (Exhibit R6). A draft list of conditions, agreed between the parties, was submitted at a later date.

69. I have considered the design changes contained in Exhibits A8-A10 inclusive and note that the development incorporates all of the amendments I consider necessary to bring the proposal into conformity with the relevant provisions of the Development Plan. The amendments are not of a nature that would render it a substantially different proposal.

70. Having considered the additional evidence of Mr McBryde and Mr Lodge I am now satisfied that the proposed development in its amended form is in adequate compliance with the Development Plan. I acknowledge that Mr McBryde holds the view that the setback of the building from the southern boundary is still short of the guidelines contained in Zone Principle 7. However, I consider that the circumstances - particularly the presence of the existing large tree on 6 Berry Crescent and the relationship between the proposed building and the dwelling on 6 Berry Crescent - support the proposed setback in achieving the planning purpose intended in that principle.

71. Furthermore, I accept Mr Lodge's assessment of the likely impacts of excavation on the CRZ of several trees that will result from the new driveway and finished floor levels. At worst, four trees may suffer temporary changes to their foliage (described by Mr Lodge as "moderate" symptoms). Mr Hilditch submitted that Mr Lodge's statement "sat comfortably" with Mr Burton. All things considered I am of the view that those provisions of the Development Plan that relate to the conservation of significant trees has been met to an adequate extent.

72. For the foregoing reasons, the appeal is upheld and the decision of the Council set aside. Provisional development plan consent is granted for the construction of three, two-storey dwellings and the removal of two significant trees at 5 Berry Crescent, Burnside (Development Application No. 180/1003/01/C2) subject to the following conditions:

1. The proposed development shall be undertaken in accordance with the plans dated October 2002 numbered SK 3.1 (Exhibit A8), SK 3.2 (Exhibit A9) and SK 3.3 (Exhibit A10) (collectively called "the approved plans") save and except as varied by the following conditions.

2. The bench level(s) shown on the approved plans are to be verified by a licensed surveyor. Prior to the pouring of concrete, a certified plan illustrating these levels is to be provided to Council. Any variation to the approved levels must be approved, in writing, by the Council prior to the pouring of concrete.

3. The upper storey balconies shall be fitted permanently with fixed, obscure glass or screens to a minimum height of 1 metre above the finished floor level of the upper storey.

4. All vegetation proposed to be planted in accordance with the approved plans shall be planted prior to the occupation of the dwellings herein approved. Such vegetation shall be maintained in good health and condition at all times. Any dead or diseased plants or trees shall be replaced with the same or similar species.

5. Tree protection areas around the significant trees on the land (other than the two trees to be removed) shall be established prior to construction commencing that:

5.1 include (subject to Condition 5.2 below) all areas within a five (5) metre radius of the centre of the trunks of the significant trees on the land;

5.2 do not include areas that are covered by paving, driveway areas, buildings (excluding timber decking) or subject to excavation or demolition works in accordance with the development herein approved;

5.3 are surrounded by temporary fencing that shall remain in place for the full period of construction work;

5.4 are covered in a layer of organic mulch (such as woodchips and or mushroom compost) to a depth of 100mm; and

5.5 are watered prior to, during and after the construction period.

6. No vehicles, construction equipment, debris, building rubble, temporary buildings or building materials are to be placed within the tree protection areas during construction of the development herein approved.

7. During construction, nothing whatsoever shall be attached to the existing significant trees including temporary service wires, nails, screws or any other fixing device.

8. No trenching for the installation of underground services shall occur within the tree protection areas.

9. All access and egress to and from the construction site shall be via the area marked and shaded as driveway on Exhibit A8.

10. The applicant shall give the Council's Tree Management Officer no less than 7 days notice (in person, by telephone, in writing or other electronic form) of any excavation work for the purposes of constructing the development herein approved.

11. The finished levels of the driveway surface shall be no less than the spot heights marked on Exhibit A8 in those locations and shall generally follow the contours and fall of the land as marked on Exhibit A8.

12. The areas of the driveway within the five (5) metre radii of the centres of the trunks of the significant trees (as marked on Exhibit A8) shall be constructed so that:

12.1 excavation for driveway construction does not exceed 200mm in depth;

12.2 a base material of aggregate that does not contain fines is laid under a geotextile fabric which fabric shall impede the settlement of fines into the aggregate; and

12.3 the "Ecolock Direct Flow" pavers forming the driveway surface shall be laid on sand or gravel placed on top of the geotextile fabric.

13. Care shall be taken to avoid damage to the canopy or to the branch structure of the significant trees during construction works on the land.

73. There will be an order accordingly.