Holland v City of Port Lincoln No ERD-02-361 [2002] SAERDC 99 (1 October 2002)

Last Updated: 6 October 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

02/09/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for the division of land (one allotment into two) - City of Port Lincoln, Residential Zone, Happy Valley Policy Area - application refused by the Council - subject land situated within an unsewered area - Development Plan directs infill development to sewered areas - intended use of the land for residential purposes considered - the topography of the subject land, the presence of a drainage easement, proximity to a watercourse and the presence of adjacent septic systems considered - land division in conflict with expressed intent to limit new development in unsewered areas within the policy area and those land division provisions that guard against inappropriate disposal of effluent - appeal dismissed - Council's decision to refuse provisional development plan consent affirmed.

• Development Act 1993 , referred to.
• Penley and Ors v District Council of Murray Bridge (1990) 158 LSJS 121;
• Goodland Park Pty Ltd v District Council of Willunga [1994] EDLR 292;
• J & A Horlin-Smith v City of Hindmarsh and Woodville [1994] EDLR 153;
• G C Rogers v City of Mount Gambier (1997) 4 SAPED 41;
• City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56, considered.

Representation

Appellant: SUSAN HOLLAND
In Person

Respondent: CITY OF PORT LINCOLN
Counsel: MR J MCELHINNEY - Solicitors: HUNT & HUNT

ERD-02-361

Judgment No. [2002] SAERDC 99

1 October 2002

SUSAN HOLLAND

v.

CITY OF PORT LINCOLN

ERDC No. 361 of 2002

[2002] SAERDC 99

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal concerns a proposed land division involving land at 5 Sarah Crescent, Port Lincoln ("the subject land").

2. By development application dated 24 April 2001, Ms Holland - through her agent P A Dansie & Associates Pty Ltd - applied to the City of Port Lincoln to divide a large parcel of land into two separate allotments. Some ten months later the Council advised Ms Holland's agent that it had refused the issue of consent. In its decision notification (dated 25 February 2002) the Council expressed its reasons for refusal thus:

• "The proposal is inconsistent with the provisions of the Development Plan.

• A 50m setback distance cannot be achieved between the surface irrigation disposal area and the watercourse.

• Unconsolidated fill on site."

3. When this matter came before the Court, Ms Holland appeared on her own behalf. Mr McElhinney appeared for the Council. The Court received several exhibits and heard evidence from:

•	Ms S Holland (teacher and owner/occupier of the subject land)
•	Mr M Sindicic (scientist/biologist)
•	Ms J Johnson (planning consultant)
•	Ms A Apponyi (environmental health officer)
•	Mr M Porter (plumber and neighbour - 4 Sarah Crescent)

4. The Court was also taken to the subject land and its immediate environment. It was also taken to another residential property within Port Lincoln for the Court to gain an appreciation of the workings of an on-site effluent treatment and disposal (ie. septic) system.

5. The subject land is large by most urban standards. It contains about 3,859 square metres and has a frontage of about 80 metres to Sarah Crescent. It is more particularly described in Certificate of Title Volume 5435 Folio 662. Along the northern edge of the subject land (adjacent Lot 60) there are two easements. Easement A is 3 metres wide and is for sewerage purposes. Easement B is 5 metres wide and is for drainage purposes.

6. The south-western section of the subject land is its high point. The land falls gently at first toward the north-east for a distance of 40 metres or so then drops sharply toward its lowest point in the north-eastern corner. The overall fall is about 11 metres.

7. There is a large stormwater drainage pipe which directs water from a large depression behind dwellings to the west of the subject land under Sarah Crescent and into Easement B. Curiously there is a culvert on the eastern side of Sarah Crescent which directs surface stormwater from the pavement across Ms Holland's land towards its low point.

8. Ms Holland proposes to divide the land into two allotments. Lot 5 is the northerly allotment and would have an area 2,112 square metres, a frontage to Sarah Crescent of about 43.5 metres and an average depth of around 50 metres. It contains the abovementioned easements and is mostly but not entirely within the low lying area of the subject land. Lot 6 would have an area of 1,747 square metres, a frontage of 36.4 metres or thereabouts and a depth exceeding 80 metres. It is on the high portion of the subject land and accommodates Ms Holland's recently constructed dwelling. Her dwelling is served by a septic system. The irrigation area associated with this system seems to "trespass" over the proposed boundary between Lots 5 and 6. Exhibit R2 is the application and consent for Ms Holland's dwelling. Among other things it contains a plan (not to scale) which indicates the presence of uncontrolled fill on the subject land. From my observations, the fill also trespasses over the proposed boundary.

9. The subject land is in a part of Port Lincoln that is not serviced by a community effluent scheme. As a consequence Ms Holland has installed an on-site treatment and disposal system for her dwelling.

10. The subject land is by no means the largest in its vicinity. Exhibit A2 indicates that Lot 59 (immediately adjacent the eastern boundary of the subject land) and Lot 58 have areas of 4,119 square metres and 4,269 square metres respectively. Exhibit A2 also indicates the general stormwater drainage pattern established in the area, which arrangement takes water from land further to the west through the easements within the natural depression in the subject land and Lots 59 and 58 to a reserve south-east of the subject land within which there is, apparently, a defined watercourse.

11. At the centre of this dispute is the question of whether it is suitable to divide land (and ultimately develop it with a dwelling) in an unsewered area. It is the Council's contention that the division of land would be fundamentally inconsistent with those provisions of the Council's Development Plan ("the Plan") which speak about future development being fostered in those areas already serviced by sewers. The Council also contends that Lot 5 is unsuitable to be serviced by a septic system as proposed by Ms Holland by reason of its topography, its location adjacent a "watercourse" and the presence of an easement and natural depression on the land which directs surface stormwater to that watercourse. These circumstances, it says, render the allotment unsuitable for on-site effluent treatment and disposal. In reaching this decision the Council had regard to advice that it received from its environmental health officer, Ms Apponyi, who in turn referred to a document produced by the South Australian Health Commission entitled "Waste Control System, Standard for the Construction, Installation and Operation of Septic Tank Systems in South Australia: Supplement B, Aerobic Wastewater Treatment Systems" ("Supplement B"). This document "details the technical aspects to be considered in the planning stages of a waste control system (aerobic wastewater treatment system) .....". It contains the standards which would apply in the event that a dwelling were proposed on Lot 5. I understand the standards applied to Ms Holland's recently constructed dwelling on Lot 6.

12. The Council did not pursue its third reason for refusal which related to the presence of unconsolidated fill on the subject land. From my observations on the view and reading of the provisions of the Plan such a reason for refusal has very little foundation to it.

13. This development application has a long and rather unfortunate history to it. I will summarise it because it assists in setting the scene for Ms Holland's circumstances.

•	In June 1999 Ms Holland first wrote to Council seeking an "in-principle" approval to divide the land. The letter generally acknowledges the conditions of the land (ie. surface rocks, nearby Council reserve and swampy creek).

•	On 24 August 1999 Ms Holland received a reply. That reply spoke of an amended boundary dividing the two allotments to facilitate better access arrangements and the need for a contour plan to ensure the viability of the land for two dwellings. It also expressed the following views:

"Because no sewers are available to the land, effluent disposal would be required by way of a septic tank or some other form of self managed effluent disposal. To enable this very important issue to be addressed, soil tests would be needed to confirm the effluent disposal method would be satisfactory.

I would remind you that the land is close to the gully and Council would need to ensure that no effluent/pollution would take place as future management of any system could not be guaranteed."

•	After further correspondence was sent to the Council by Ms Holland, in December 2000 the Council resolved thus:

"That Council suggests to Ms Holland that Council accepts the concept of land division and advised to proceed with a land division application."

The Council conveyed its resolution to Ms Holland on 20 December 2000.

•	On 19 February 2001 Council sent a follow up letter to Ms Holland reminding her that the issues raised in the 24 August 1999 letter still remained relevant.

•	During the course of assessing the proposed land division (during which period it took advice from Ms Apponyi) the Council requested a soil test be carried out "to clarify drainage characteristics and suitable effluent disposal methods".

•	Such tests were duly carried out by Maunsell Australia Pty Ltd ("Maunsell"). The results of the investigation are recorded in a communication from Maunsell to Ms Holland (Exhibit A1, p.30). In a further communication to Ms Holland, Maunsell had, among other things, this to say:

"As discussed earlier the site at Lot 61 Sarah Crescent is considered suitable for surface irrigation of aerobic wastewater treatment system effluent providing the following recommendations from the South Australian Health Commission Code Supplement B are adopted:

§ The sizing of the disposal area is determined as per page 7 of the supplement.

§ Landscaping and Irrigation systems are implemented as per page 9 and 10 of the supplement.

It should be noted that as part of the landscaping requirements it specifies that the irrigation area must not be located on land prone to water logging or subject to flood or surface water inundation. The northern portion of the site was at one time a minor watercourse. After an inspection of the site we are of the opinion that at Lot 61 Sarah Crescent there is now no longer a valid watercourse and the low lying land is unlikely to be subject to flood or surface water inundation from Lot 61 Sarah Crescent or the property north of Lot 61 Sarah Crescent. To the west (up gradient) the Sarah Crescent road reserve and the houses west of Lot 61 Sarah Crescent have been constructed in the watercourse thereby terminating the watercourse. In addition this watercourse is unlikely to be used for human or domestic use and therefore the 50m setback should not apply in this situation.

Considering the houses west of Lot 61 Sarah Crescent have been erected in the watercourse it would not be unreasonable to expect that you may need to adopted [sic] similar requirements to the owners of those properties to advance your project."

On the strength of this advice Ms Holland submitted to Council a plan which allocated surface irrigation areas for both allotments.

•	Also during the course of assessment the Council referred the matter to the Eyre Region Office of the SA Water Corporation ("SA Water"). The response from SA Water is in the following terms:

• "SA Water has no plans to provide sewerage services to the above mentioned area in the near future and is unlikely to do so within the next 10-15 years.

• SA Water policy does not allow for the provision of temporary indirect sewer connections for land divisions within the urban area."

•

Having treated the proposal as a Category 2 development the Council received a representation from M & L Porter who live in a relatively new home directly opposite the subject land. The Porter's told of a concern they had about the prospect of two septic systems being installed on land in unsuitable circumstances.

14. I now turn to the relevant provisions of the Plan. The subject land is depicted on Map PtL/4 in the Plan for the City of Port Lincoln. It is located within the Residential Zone. Map PtL/14 indicates that it is also within the Happy Valley Policy Area. There are no objectives of particular relevance to development in the nature of a land division. However, Objectives 1, 2 and 4 speak about the form of development desired for the zone:

RESIDENTIAL ZONE

"Objective 1: Safe, pleasant, convenient and distinctive living environments for all residents provided by housing and local community facilities that complement the living environment."

"Objective 2: A zone primarily accommodating dwellings of various types and tenures at low and medium densities and one to two storeys in height, located throughout the zone."

"Objective 4: This zone should be developed as a residential area of low to medium density. Development should enhance the existing character with buildings that maintain the traditional character through a variety of designs. Appropriately designed modern interpretations of the residential character will be encouraged. The built form should respect and enhance the need for amenity, views and privacy. The design of streets, allotments and buildings, and streetscape elements should emphasise the distinction between private and public spaces, and create high levels of permeability within the zone."

15. According to the text that follows these objectives and which describes the desired future character of the zone and the policy areas, the subject land is within an area which encompasses one of Port Lincoln's oldest subdivided township areas. The relevant aspects of the desired future character of the Happy Valley Policy Area follow:

"Specific features of the policy area that contribute to its character include a predominance of single storey detached dwellings on generally spacious allotments with relatively uniform set-backs from road frontages, large areas of remnant vegetation, steep densely planted gullies and tall trees. This pattern of settlement contributes to the areas distinctive low-density, country living character with generous parklands and open space.

A number of older turn of the century dwellings are located throughout the area with infill contemporary dwellings occurring in more recent times on established half acre allotments. Many large new residences have been established in elevated positions, taking advantage of expansive views of the harbour. Additional infill and redevelopment opportunities exist within the zone. This infill should be limited to areas already serviced by sewer and water supplies, with new allotments established for dwellings established at a density of one dwelling per 700 square metres to maintain the low density character of the area." (emphasis added)

16. Principle 2 for the zone establishes the site areas for various dwelling types. There is no conflict between this principle and the areas proposed for Lots 5 and 6. Other than provisions that generally support the directions established for development in the objectives there are no principles of particular relevance to the assessment of land division.

17. Those provisions that direct attention to land division are contained within the Council Wide section of the Plan. In particular, Principles 8, 9, 10, 14, 15, 16, 17, 33 and 34 address a number of planning requirements. Those relevant to this matter follow:

COUNCIL WIDE

Principles of Development Control

"8 Land should not be divided:

.....

(c) unless wastes produced by the proposed use of the land, or any use permitted by the principles of development control, can be managed so as to prevent pollution of a public water supply or any surface or underground water resources;

(d) if the size, shape and location of, and the slope and nature of the land contained in, each allotment resulting from the division is unsuitable for the purpose for which the allotment is to be used;

....."

"9 When land is divided:

.....

(d) provision should be made for the disposal of waste waters, sewage and other effluents from each allotment without risk to health;

....."

"15 Residential allotments should have the appropriate area and dimensions for:

.....

(d) effluent disposal in accordance with relevant standards."

"33 The design of the land division should facilitate the storm drainage system:

(a) maximizing the interception, retention and removal of water borne pollutants (including sediment, litter, nutrients, microbial contaminants and other potential toxic materials) prior to their discharge to receiving waters, whether surface or underground;

.....

(c) minimizing the potential for sewage overflows to enter the system."

18. I have also had regard to Council Wide Objectives 1, 4, and 5 and its explanatory text.

19. Ms Holland gave oral evidence and also called Mr Sindicic in support of her case. Ms Holland opined that the Council had ample opportunity to provide sufficient information in respect of the effluent disposal capabilities of the land early on in the piece. She said this information may well have led her to abandoning her plans. In any case, Ms Holland opined that:

•	the proposed allotments are of a size that will allow substantial compliance with the appropriate standards for septic tanks in respect of dwellings of reasonable size;
•	there is evidence that septic tanks can work in rocky areas; and
•	the depression within her land is not in the nature of a watercourse of the type referred to in Clause 5 of Supplement B (and therefore the 50 metre separation distance spoken of in Council's reasons for refusal is not, in her view, a relevant consideration).

20. Mr Sindicic is employed as a catchment management officer for the Department of Water (Land and Biodiversity). He opined that the depression in the subject land is not a defined watercourse nor has it the ordinary characteristics of a watercourse. The watercourse that is present in the general area is further to the south according to Mr Sindicic. He did not foresee a difficulty in major stormwater events being the cause of effluent moving from the subject land into the watercourse.

21. Mr McElhinney called Ms Johnson, Ms Apponyi and Mr Porter in support of the Council's case. Ms Johnson's statement was tendered as Exhibit R4. She relied in part on the opinions offered by Ms Apponyi in forming her views in relation to the suitability of the subject land in catering for an additional septic system. In the end Ms Johnson opined that the proposed land division was at odds with the objectives for the zone (directing development to areas already serviced by sewers) and those provisions directed at the safe disposal of effluent.

22. Ms Apponyi is employed by the City of Port Lincoln as an environmental health officer. Her statement, tendered as Exhibit R5, restated the history of the land division application and included her opinions and recommendations that were placed before the Council. In her oral evidence Ms Apponyi considered the general approach taken by Maunsell and agreed that, properly managed, a level or bunded irrigation area could be established in respect of Lot 5. However, in this respect her evidence was heavily qualified. Firstly, there were limitations placed on the size of the house and the number and type of wastewater generating facilities within it. Secondly, she assumed that the irrigation area could be appropriately formed and be designed in line with the requirements of Supplement B.

23. Although Ms Apponyi agreed that there is a theoretical (limited) capacity of Lot 5 to accommodate a septic system, she was nonetheless opposed to such a scheme in light of the fact that it was adjacent a stormwater drainage system.

24. Mr Porter lives opposite the subject land. He is a plumber and apparently has had some experience in installing septic systems. Although his house is very near the subject land, it is connected to the main sewer system. His principal concern revolved around the potential for the septic system on the subject land becoming overloaded, thereby causing health risks and spillage into the general drainage system, which ultimately runs to the ocean. Other than his trade qualifications and experience, Mr Porter has no qualifications of a technical nature to support his opinions.

25. Ms Holland's case, it seems to me, rests upon three principal arguments. Firstly, the diagram on folio 36 of Exhibit A1 purports to demonstrate that the subject land is capable of accommodating dwellings and the necessary irrigation and other areas in a way which satisfies Supplement B. Secondly, she relies on the evidence of Mr Sindicic, who opined that the depression in the subject land is not a watercourse (thus inferring that Council's second reason for refusal has no work to do). Thirdly, the existence of at least one other septic system on other land near the depression and a dwelling using such a system quite some distance from the subject land serves to indicate the suitability of such a system on her land.

26. Mr McElhinney referred to the unusual nature of this case. Some concerns of the Council are matters that are dealt with under different legislative arrangements and upon an application being made for the installation of a septic system in respect of a future dwelling on Lot 5 and that such concerns could only be addressed at the point of making such an application. Therefore, he said, the focus of the Court must be on the assessment of the proposal against the Development Plan and in particular those provisions that speak directly to the purpose and intent of the Residential Zone. In this case, he submitted, the proposal is substantially at odds with the provisions that direct "infill" development to areas already served by sewers.

27. Having carefully considered all that has been put before me I consider the following matters bear upon my decision:

•

The desired future character for the Residential Zone is but one consideration among many other matters to be taken into account. In this case, that part of the character statement to which Mr McElhinney drew the Court's attention for consideration directs "infill and redevelopment" opportunities to areas already serviced by sewers. The proposal before the Court is for a land division and is not a form of development which, in the language of a planner, is either "infill" or "redevelopment". Both of those terms generally refer to - in a context such as this - development in the nature of a dwelling(s). Thus, the proposal would not necessarily conflict with such a narrow application of this aspect of the desired future character statement.

•

However, it is established law that in considering a land division it is relevant to have regard to the type of use intended (which may be distinguished from a particular development) and the physical realities in which the development is proposed (see Penley and Ors v District Council of Murray Bridge (1990) 158 LSJS 121, Goodland Park Pty Ltd v District Council of Willunga [1994] EDLR 292, J & A Horlin-Smith v City of Hindmarsh and Woodville [1994] EDLR 153, G C Rogers v City of Mount Gambier (1997) 4 SAPED 41).

•

In this matter Ms Holland has been actively seeking a buyer for the land for residential purposes. All of the evidence points toward an intention for Lot 5 to be developed with a dwelling just as she has developed Lot 6 with a dwelling for her own purposes. There is thus a clear link between the proposed land division and the intended use, which use would normally be regarded as being in the nature of infill. I am of the view, therefore, that the proposed land division is in conflict with the aforementioned provisions of the desired future character of the Residential Zone.

•

This conflict, in itself, is not sufficient to render the proposal unsatisfactory. In saying this I am not ignoring that which fell from the findings of Debelle J in City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56. However, the fact remains that development in the nature of land division does not feature in the expression of the zone's objectives or principles. Moreover, those aspects in the text that direct infill development to areas already sewered leave in some doubt their applicability to the subject land. This doubt may have exercised the Council's mind when it granted consent to Ms Holland's dwelling and septic facilities in very recent times. The reality is that septic systems are not uncommon in rural or semi-rural townships and cities and many allotments in the general area (including the subject land) are served by such systems apparently successfully. Furthermore, other provisions of the Plan do not foreclose waste disposal systems that are not connected to a common effluent or like schemes.

•

However, the evidence and the provisions of Council Wide Principles 8, 9, 15 and 33, when properly considered, do not support the division of the land into two allotments, the consequence of which will be the construction of a dwelling on Lot 5 which will rely on a septic system for effluent treatment and disposal. The principal problem resides in the topography of the subject land (particularly Lot 5) and the role that part of this allotment plays in stormwater drainage. Notwithstanding the theoretical capacity of Lots 5 and 6 to set aside an irrigation area in accordance with Supplement B, the topography of the land indicates that substantial difficulties will be encountered when attempting to achieve these areas in a way that minimises or eliminates the risk of sewerage overflows into the drainage system. Furthermore, proposed Lot 5 has within it a dedicated area for the disposal of stormwater for the wider locality. It takes water from the road and from land further to the west. It is a principal corridor for the passage of stormwater to the watercourse and ultimately to the ocean. In such circumstances extreme caution should be exercised in the placement of facilities which may result in this corridor being the vehicle for contaminants reaching sensitive environments. For this reason the topography and its drainage role render Lot 5 unsuitable for future development of the nature intended. In my opinion the evidence shows that the proposed division is in substantial conflict with Council Wide Principles 8(c) and (d), 9(d) and 33(a) and (c).

28. These factors, when taken together, bring the proposed land division into conflict with the aforementioned provisions to an unacceptable extent. In reaching this conclusion, I have not ignored the existence of another system on land adjacent the subject land and the drainage depression. However, the mere existence of this example (or for that matter the system serving the other dwelling to which the Court was taken to) is not sufficient for me to find for the appellant. The Plan establishes planning principles which, when considered and weighed in concert with the evidence and the circumstances of the subject land, support Council's grounds for refusal argued in this matter. The appeal is dismissed and the decision of the Council affirmed. There will be an order accordingly.

29. In reaching this decision I have not overlooked Ms Holland's frustrations about the progress of the application through the Council. I am in no doubt that these frustrations are genuinely held. However, they no not constitute valid grounds for an appeal to this Court. The history serves to demonstrate the difficulties that are often encountered when enquiries are made and an "approval in principle" is sought. Both the appellant in her initial enquiries and the Council in its responses were founded on good intentions. In the end a planning authority's decision is only to be made when all relevant information is received and assessed.