Loeser v City of Victor Harbor No ERD-02-478 [2003] SAERDC 129 (17 February 2003)

Last Updated: 23 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

26/11/2002, 17/02/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application for land division of one allotment into three allotments - Rural Living 1 Zone - refused by Council - planning merits considered - allotment numbers, areas, width, arrangement and future likely use and development considered - locality characteristics conducive to a less rigid application of Zone Principle 2 (minimum allotment area 1.0 hectares and average allotment area 2.5 hectares) - regard given to objectives and desired character for the zone - width and site areas of two allotments (not number or average allotment area) considered unacceptable - likelihood of future division of larger balance allotment considered - amended land division plan with three more equal sized and more equal width and frontage of allotments acceptable in locality context - parties agreed on conditions of consent - appeal upheld on amended plan - conditional provisional development plan consent granted.

• Development Act 1993 ;
• Development Regulations 1993 , referred to.
• Wade & Anor v SA Planning Commission (1985) 18 APA 108 ;
• City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56 ;
• City of Charles Sturt v Hatch [1999] SASC 523 ;
• Nadebaum v City of Mitcham [1995] EDLR 587 , considered.

Representation

Appellant: KM & BJ LOESER
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF VICTOR HARBOR
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

ERD-02-478

Judgment No. [2002] SAERDC 129

17 February 2003

KM & BJ LOESER

v

CITY OF VICTOR HARBOR

ERDC NO. 478 of 2002

[2002] SAERDC 129

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an applicant appeal against the refusal of the City of Victor Harbor ("the Council"), to Development Application No.453/D039/01, for the division of land at Cemetery Road (known as Finniss Road), Victor Harbor, into three allotments.

2. The reasons given in Council's resolution for that decision were "as it is considered to be at significant variance to the Rural Living 1 Zone, Principle 2".

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

Date of application: 16 November 2001 (registered 19 November 2001)

Subject land address: Section 503, Cemetery Road (known as Finniss Road, Victor Harbor)

Existing use: Rural living (detached dwelling, outbuildings, minor sheep grazing)

Proposal: Land division (amended to comprise three allotments)

Relevant authority: City of Victor Harbor

Appropriate

Development Plan: Victor Harbor (DC) consolidated 12 July 2001 but updated by Bushfire Management Plan Amendment Report 6 September 2001 not consolidated with other material until January 2002

Relevant area/zone: Rural Living Area and Rural Living 1 Zone, MAP ViH/1 (Overlay 1) ENLARGEMENT A and MAP ViH/16

Date of decision: 15 April 2002, form dated 22 April 2002

Appeal lodged: 13 June 2002

4. This matter was the subject of a pre-trial conference held on 5 July 2002, however no settlement was achieved and it proceeded to hearing.

5. Sworn evidence was provided by Mr M Baade, a qualified town planner but having limited experience with rural living policy development, land division or other related development; and by Ms J Nolan MPIA, a very experienced town planner with extensive experience concerning rural living policy development, land division and other related development.

6. The Court viewed the subject land and the locality on 26 November 2002 and it received experts' statements, an amended proposal plan, other correspondence, other land division application material and maps and plans.

The Subject Land

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

8. The subject land is located on the southern side of Finniss Road, and the north-eastern corner of the site is located less than 100 metres west of a new so called "Inner Ring Road" and approximately 500-600 metres west of the Residential Zone for Victor Harbor, but perhaps only 150 metres from undeveloped Light Industry Zone land to the south.

9. The land is more particularly described as Section 503 in the Hundred of Encounter Bay, contained in Certificate of Title Volume 5521, Folio 264.

10. The subject land comprises an area of some 2.944 hectares, with a 120.89 metre frontage to Finniss Road. An easement to the Minister for Infrastructure exists along the southern boundary for the purposes of water supply.

11. A number of buildings currently exist along, and near to the Finniss Road frontage of the site, including a house (currently occupied), a number of sheds and outbuildings and a "cottage" that is no longer occupied.

12. The site slopes downward from Finniss Road, from a contour of some 45 metres (AHD) to approximately 20 metres in the south-western corner, with the steepest section (about 1:5) located approximately halfway down and overall with slopes of some 1:9 to 1:10.

13. The land has outstanding views to the south and south-west, including views of the western parts of the Victor Harbor township, the coast and the Bluff, as well as views to the rural hinterland areas to the west.

14. The land is fenced and the northern half of the site contains only sparse amounts of vegetation, whilst a greater amount, including the occasional remnant tree, and a significant area of bracken, exists on the southern half. A well established buffer of trees exists along the western boundary of the site (on the adjoining land), and there are a number of mostly indigenous trees along the frontage with Finniss Road. A natural spring is said to exist just over halfway down the site and the land is grazed with sheep and at least one goat.

15. The land is both directly and indirectly influenced by the intersection between Greenhills Road and the new Victor Harbor "Inner Ring Road". The construction of the new ring road, opening in approximately March-April 2002, and the off-ramp and bridge at Greenhills Road, resulted in the closure of Finniss Road at its junction with Greenhills Road. Access to the subject land and that roadway, is now via Pages or Henderson Road, to the west of the site. Accordingly, the subject land is now situated near the end of a "no through road".

The Proposal

16. The proposal before the Court is shown on the amended plan in Exhibit A1 and it is for the division of the existing allotment into three allotments, one (Lot 43) of 1.544 hectares and two allotments (Lots 41 and 42) of some 0.7 hectares each.

17. The amendment to the original plan before the Council (Exhibit R1 page 16), whilst reducing the number of allotments by one, is considered to be a minor amendment and does not change the essential nature of the proposal, and it can be properly considered by the Court.

18. Proposed Allotments 41 and 42 are very similar with frontages to Finniss Road of 30.48 and 29.31 metres respectively. The easement to the Minister for Infrastructure is to continue to occupy a 10.16 metre wide strip of land along the southern boundary. Proposed Allotment 42 will contain an existing outbuilding, whilst proposed Allotment 43 will accommodate the existing house (the appellants' home), most of the "cottage" (but with a small corner shown to protrude into proposed Allotment 42) and the remaining existing outbuildings. This allotment will also contain the natural spring.

19. The average allotment area is 0.98 hectares.

The Locality

20. The locality for the purpose of assessment of various Development Plan provisions is that part of the surrounding area of direct influence on the subject site and the proposal, and that the proposal is likely to impact on, to a notable degree.

21. In this case, a land division proposal with a consequential "rural living" use that must be factored in, the locality boundary is to be based primarily on visual and character perception impacts brought about by the pattern of land division and the development thereon, and vehicle movement and aural conditions.

22. I have had regard to the locality boundaries prepared by Mr Baade and Ms Nolan in their statements of evidence (Exhibits A2 and R2), and I find the former to be too localised and the latter to be too extensive to the north.

23. I define the locality as follows:

•	to the east, for a distance of perhaps some 200 metres only, generally bounded by the new Inner Ring Road, but extending to include portion of Lot 6, Section 504, on the eastern side of that road, that is visible from the subject land;
•	to the south, to the heavily vegetated Inman River environs (zoned Light Industry, but in that vicinity it is perhaps unlikely to be developed for such purposes given the environmental constraint);
•	to the west, to include the cemetery, all allotments on the western side of Pages Road, but also, in a more generalised sense, the visible rural living development on Swains Crossing Road some 1-1.5 km distant; and
•	to the north, over a ridgeline to include all allotments fronting Greenhills Road from the corner of Hawke Road (including the vegetated reserve in the northwest quadrant of that intersection with Greenhills Road), along to the Inner Ring Road to the east.

24. Land use comprises primarily "rural living", together with limited cattle grazing, a well screened cemetery and two smaller, vegetated reserves, as well as the quite significant Greenhills Road feeding traffic movement into the Victor Harbor township, and the new Inner Ring Road, providing a bypass from the main Adelaide Road around central Victor Harbor to the western, Encounter Bay side of the township. Land adjoining to the east and south (referred to as the "Solly land"), west of the Inner Ring Road, has recently been divided into 12 rural living allotments that are vacant but fenced and with access crossovers constructed, and with areas ranging from 0.6 to 1.132 hectares. Land opposite to the north is well vegetated and said to be a "stone" reserve (though in fact it is dedicated for recreation and conservation purposes, vide Exhibit A3), and adjoining to the west are two allotments of 0.74 and 1.32 hectares used for rural living purposes. Other allotments in the locality are generally used for rural living, and range in areas from one at 0.57 hectares, to one at 2.74 hectares (Exhibit A4). Some 68-70% of allotments west of the Inner Ring Road, are on the evidence, greater than 1.0 hectare in area.

25. The locality is well vegetated in parts (both remnant vegetation on small reserves, road reserves and along the Inman River and planted vegetation on the many rural living holdings), and with some more open, grazed or formerly grazed areas. Extensive views are obtained from many vantage points, including the upper slopes of the subject land, toward the coast, The Bluff, parts of the western side of Victor Harbor township and to rural areas to the west and north-west.

26. Amenity levels, both visually and from a residential perspective, are high with few discordant elements. The new Inner Ring Road is a "harsh" man-made addition and brings with it some extra traffic movement but it has minimal impact on the subject land itself. The truncating of Finniss Road to Greenhills Road, means it is now a quiet "no through road", enhancing the semi-rural character.

27. The character of the locality remains semi-rural in appearance with a mix of vegetated, open grazing land, generally scattered, separated dwellings and outbuildings, and with broad views of coastal and rural landscapes. There is some perception of the presence (some 500-800 metres distant) of the Victor Harbor township and urban area.

Relevant Development Plan Provisions

28. I have considered the various provisions referred to by the experts and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter. These provisions are found in the Victor Harbor (DC) Development Plan consolidated version 12 July 2001 and in two cases within the Bushfire Management Plan Amendment Report of 6 September 2001 (yet to be consolidated at the time of application lodgement, within the broader Development Plan for Victor Harbor).

OUTER METROPOLITAN

Objectives: 1 and 37.

(Note: Provisions for the Mount Lofty Ranges Region only apply to land in certain zones such as the General Farming and Rural Coastal Zones, as shown in Tables OM/1 and OM/2, and these do not include the Rural Living 1 Zone at Victor Harbor.)

COUNCIL WIDE

Objectives: 1, 3 and 9;

Bushfire Management PAR, Attachment A, Objective 2;

Principles of development control: 1, 2, 10, 19, 21, 23, 24, 25, 26, 93 and 181;

and Bushfire Management PAR, Attachment B, Principle of development control 1.

RURAL LIVING 1 ZONE

Objectives: 1 and 2; and

Principles of development control: 1, 2, 4, 8 and 9.

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

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

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

Processing

31. The proposal was determined by the Council having regard to the Development Plan and the Development Regulations 1993 to be a Category 1 development, such that formal public notification was not required, and I understand that no other submissions or representations were made by third parties.

32. The Development Assessment Commission provided advice to the Council (Exhibit R1 page 24), namely:

"It is pointed out that the proposal may be AT VARIANCE with the Development Plan for the following reason(s):

•	Principle 2 of the Rural Living 1 Zone".

The Evidence

33. Mr Baade supported the development, both the original plan proposed with three additional allotments at some 3,400 square metres in area and with 25 metre frontages, as well as the amended proposal of two additional allotments (7,000 square metres and with frontages and width of approximately 30 metres). He was also able to support the "Solly" land division located west of the Inner Ring Road surrounding the subject land, with a minimum allotment area of 6,000 square metres, and a further proposed division (not yet with an effective provisional development plan consent), located east of the Inner Ring Road with minimum allotment sizes of 3,000 square metres (both in the same Rural Living 1 Zone). However, surprisingly, and somewhat inconsistently, he indicated that he would not be able to support a further division of proposed Lot 43 into two allotments of the same size and frontages as proposed Lots 41 and 42 in the amended plan. It appeared that he felt that this may result in development that was too intense and that the potential for dwellings all in near positions to the roadway and with limited spacing between, may not be appropriate.

34. His view also appeared to be that due to proximity of the subject land to the Victor Harbor township, the locality is one in transition from rural use to eventual urban purposes, the first logical extension of the township in his mind, and given the allotment pattern (size - density) in his defined locality, the two legs of zone Principle 2 subclauses (a) and (b), have, essentially, no work to do. He felt that allotments of 700 square metres in area would still maintain an open appearance compared to a residential zone and that the Zone objectives could still be achieved despite non-compliance with Principle 2.

35. On the other hand Ms Nolan was unable to support the current proposal but would be able to support a land division with three equal sized allotments (approximately 0.98 hectares average), but provided it was "appropriately configured".

36. However, she was not able to support lot sizes of 0.7 hectares or smaller and felt that the "Solly" land division west of the Inner Ring Road and surrounding the subject land was an inappropriate decision and development having regard to the Development Plan, and that it should not be relied upon to approve further inappropriate development.

37. Ms Nolan also opined that west of the Inner Ring Road, land division and development generally accords with the Rural Living 1 Zone provisions and that the locality is not so developed to render limited or no weight to be applied to Zone Principle 2 and that this principle and sub-clauses (a) and (b) had work to do to ensure development met the desired character set out in the Zone objectives and other provisions, such as Council Wide Principle 21 in particular. Nevertheless, in the light of the "Solly" land division west of the Inner Ring Road, a reality that she correctly acknowledged, she was able to support three allotments with areas in the order of 0.98 hectares (marginally below the 1 hectare minimum in Principle 2 (b)), though falling well short of the 2.5 hectares average sought in the same provision. She felt that a more appropriate configuration of such allotments was required including potentially broader frontages to Finniss Road.

38. Ms Nolan was also of the view that departures of the kind in question should not occur by way of ad hoc decisions, but by a review of and amendment to the zoning.

39. At the conclusion of the expert evidence, it was apparent that the town planners were not far apart in their opinions and only allotment size and frontage (not the number of allotments) were departures of opinion.

Planning Assessment

40. There are only a limited number of central issues concerning this proposal. Assessment is to focus on the acceptability of the proposed number, area, width and arrangement of the proposed three allotments, mindful of the intended and likely "rural living" use (on the evidence, and as has occurred elsewhere in the locality, to include large dwellings with outbuildings, possible recreational facilities, and with small-scale minor rural pursuits such as non-commercial animal keeping, fruit trees and vegetation retention or regeneration), and considering the existing locality characteristics, the impact and consequences of such division, likely use and building development on the character of that locality, and the degree of conformity with the character envisaged for the Rural Living 1 Zone expressed through its Objectives and Principles of Development Control.

41. Issues such as generic suitability of the land for rural living purposes, access, conservation, bushfire prevention, prematurity or need (in the light of the proposed creation of two additional allotments only, and on the evidence of both town planners), and others based on the various Development Plan criteria, are all either satisfactorily addressed, not so highly relevant, or not in dispute between the parties, and on the evidence of the two town planning experts, with which I agree, do not justify closer and more considered assessment and discussion.

42. The most relevant provisions of the Development Plan to the central issues in question as outlined above are as follows:

"RURAL LIVING 1 ZONE

Objective 1: Detached dwellings in association with farming and other minor rural activities, including horse keeping.

Objective 2: Retention of the zone's pleasant rural appearance as derived from the gently undulating pastures, patches of dense scrub, established trees, scattered dwellings and numerous creeks.

....

PRINCIPLES OF DEVELOPMENT CONTROL

1 Development should be primarily for detached dwellings with small-scale rural activities.

2 Division of land should occur only if:

(a) the division results in the rationalization of allotment boundaries to suit the use to which the land will be put, without increasing the total number of allotments; or

(b)	all new allotments will have a minimum area of one hectare, and the average of the areas of all allotments resulting from the division of land is at least 2.5 hectares.

.....

4 Buildings should be sited unobtrusively, set-back from roads, and screened with landscaping to ensure that the open and rural character and the amenity of the locality is maintained and enhanced.

.....

8 The following kinds of development are complying in the Rural Living 1 Zone subject to compliance with the conditions set out in Tables ViH/1 and ViH/2:

Farming

Recreation Area."

"COUNCIL WIDE

PRINCIPLES OF DEVELOPMENT CONTROL

....

21 Every new allotment should be located or designed to contain a site suitable for building development or a use of land of a type appropriate in all respects to that location and consistent with the objectives of the zone concerned.

...

93 Development should take place in a manner which will not, in respect of its appearance, interfere with the achievement of the objectives for an area or, otherwise, the existing character of scenically or environmentally important areas, including areas which are prominently visible from other land or are frequented by the public."

43. The proposal is wholly located within the Rural Living 1 Zone. This Zone is said by Mr Baade to cover an area of approximately 370 hectares and directly adjoins the Victor Harbor township boundary, creating an interface with the Residential Zone, the Residential (Golf Course) Zone, the Recreation Zone and the Light Industry Zone. The Rural Living 1 Zone is apparently more than 2.5 km across at its widest point, with the most distant point from the residential/township boundary being some 3 km. Farming (on a commercial basis) is a complying land use, however other than as an historical legacy, it is unlikely given the small allotment areas in most, if not all of the Zone.

44. It is also relevant to note that it is one of four rural living zones, each with slightly differing provisions and land division/dwelling density guidelines. For example, Rural Living 2 Zone has guidelines seeking a minimum allotment area of 2.0 hectares, and an average area of 2.5 hectares; Rural Living 3 Zone a guideline minimum of 0.5 hectares and an average of 1.0 hectare; and Rural Living 4 Zone a guideline minimum of 1.0 hectare and an average of 1.5 hectares (in that case averaged over the whole Zone). Whilst there is no presumption in favour of land division, as counsel for the respondent submitted and agreed with by Mr Baade, nevertheless the objectives and principles of these zones envisage that occurring.

45. Hence, the Development Plan purposefully sets out differing rural living zones, with differing dwelling densities and guidelines for land division allotment sizes, to implement, presumably, varied objectives, circumstances or land form. However, there is nothing in the Development Plan to suggest that these areas or zoning are in transition to urban areas as Mr Baade suggested. The zoning must be accepted at face value.

46. Applying the Zone and other more general Development Plan provisions to a site that currently meets the objectives for the zone, as is the case in this matter, it is appropriate and relevant to have regard to the locality context and circumstances. These are described at length above under the heading Locality.

47. It is true to say that with the "Solly" land division approval (west of the ring route and adjoining the subject land on two sides), now implemented on the ground and comprising 12 allotments, with areas consistently of 6,000-7,000 square metres or thereabouts, and with the existence of two other smaller sites nearby to the west (0.57 and 0.74 hectares), almost half of the number of rural living allotments in the locality as defined, comprise dwelling densities and built form character that is and will be somewhat more intensive than the Rural Living 1 Zone provisions envisage, and the averaging guideline of 2.5 hectares is not achieved. This "enclave" is likely to develop a different, more intensive character, than the balance of the locality. However, it is not appropriate to compare, as Mr Baade did, the degree of openness of the proposal, with an urban residential area.

48. Conversely, the areas in the locality north of Greenhills Road and between the cemetery and the subject land, consistently have larger rural living sites with areas ranging from about 1.0 to about 2.7 hectares, and these squarely meet Zone Principle 2(b).

49. Hence, the locality circumstances are conducive to a somewhat more flexible approach to implementation of Principle 2(b) for the subject land, acknowledged by both Ms Nolan and Mr Baade. Zone Principle 2 is not met but that is not fatal. In the terms set out in Wade & Anor v South Australian Planning Commission (1985) 18 APA 108 at page 113:

"Approval may be justifiable if the particular locality has already been developed in a manner and to the extent which renders the objectives unattainable or indeed renders the objectives irrelevant for the purposes of the subject case."

50. I find that the Zone objectives (and other provisions such as Principle 4) have relevance and weight, but that Zone Principle 2 should not be applied rigidly or narrowly for the subject land, given the locality characteristics.

51. I find that in-principle, allotments in the order of 7,000-10,000 square metres (1 hectare) on the subject land may be acceptable in broad dwelling/allotment density terms having regard to the Development Plan, the locality characteristics and all relevant matters. That should not be construed as necessarily the case for other land in the locality to the west or north. Similarly, the number of allotments proposed (3), are also acceptable. The guideline average of 2.5 hectares is not met, however I find it to be less useful or practical over time, as an additional density guide.

52. The subject land is relatively elongated in length compared to width and this geometry, coupled with the slope of the land from the road frontage (north) toward the rear of the land (south), are important constraints in terms of land division design, assuming that a new internal road is unlikely on economic grounds given the very low possible allotment yield, and having regard to the rural living/residential use of the land sought by the Zone. Therefore prospective and likely house siting, given the narrow road frontages, services location along that roadway, slope and views from the northern elevated portions of the land, are likely to be relatively close to the Finniss Road boundary and clustered in appearance from many vantage points.

53. The proposed Allotments 41 and 42 (areas of 7,000 square metres) are intended to have frontages of some 30 metres and with a depth of some 228-246 metres and this would provide an even more pronounced elongated, relatively narrow (ratio 1:8) allotment pattern. Such frontages and pattern are not present in the locality as defined and are not typical of functional, useable and convenient rural living sites in my experience and confirmed by Ms Nolan (usually 50 metre plus frontages and relatively squarer sites are developed, giving much greater dwelling siting choices and efficiency for small scale rural activities). That will almost certainly mean that likely dwellings (with large dwellings of up to two-storeys expected), would be placed relatively close together with minimal spacing between, and in locations relatively close to the Finniss Road boundary of each allotment. Such an arrangement is not conducive to achieving the desired character and intent of the Zone (City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56) and it is relevant when assessing a land division to also consider the intended and most likely use and development to follow (vide Wade referred to above).

54. Further, and of some but not decisive relevance, if this land division was to be approved, the likelihood of the larger balance (proposed Lot 43) being sought to be similarly divided into two 7,000 square metre sites with 30 metre frontages and depths of 246-265 metres, is considered to be high, and I cannot ignore that flow-on consequence, having given due regard to what was said in City of Charles Sturt v Hatch [1999] EDLR 485 and Nadebaum v City of Mitcham [1995] EDLR 587. Curiously, and inconsistently perhaps, Mr Baade indicated he was unlikely to be able to support such a further division. Hence, I expect that the development of four large dwellings with minimal side spacings, and possibly with positioning near to Finniss Road, would be a likely indirect outcome and consequence of approval to this land division Application. I find that such general siting and minimal spacing would not be in keeping with or conducive to the achievement of the Rural Living 1 Zone, Objective 2 and Principle 4 and Council Wide Principle 21 (refer above), or with the locality characteristics.

Conclusions

55. In its proposed (Exhibit A1) form and allotment configuration (but not site areas or allotment number), and as a fact and degree planning judgment, I find that the proposal is not acceptable having regard to the Development Plan, the locality and all relevant matters. Following issuing a memorandum to the parties advising of that conclusion, but that a further amended plan with each allotment of more equal area and road frontage would be favourably considered, Exhibit A6 was tendered by the appellants, at the resumed hearing. Counsel for the respondent advised that the Council had no objection to that plan of division and the parties were agreed on conditions of consent.

56. I find that such an amendment is minor, would not change the essential nature of the proposal and would not be prejudicial to any other person, and can be properly considered and determined by this Court.

Decision

57. The decision of the Court is that provisional development plan and land division consent is to be granted to Development Application No. 453/D039/01 subject to the following conditions:

1.	All work to be carried out in accordance with the amended plans dated 17 January 2003, marked Exhibit A6, prepared by DSC Andrew Surveyors (200244-IF) submitted with and forming part of Development Application No. 453/D0039/01 unless varied by any of the following conditions.
2.	The two existing "shed" structures dissected by the two new proposed boundaries be demolished and removed, or, partly demolished and re-instated to comply with the Building Code of Australia.
3.	Payment of $1640 shall be made into the Planning and Development Fund (payable to the Development Assessment Commission).
4.	Two copies of a certified survey plan shall be lodged with the Commission, for certificate purposes.
5.	The financial requirements of the SA Water Corporation shall be met for the provision of water supply for proposed Allotments 41 and 42.

58. There will be an order accordingly.