Wright v City of Mitcham No ERD-02-624, ERD-03-404 [2003] SAERDC 132 (23 December 2003)

Last Updated: 25 January 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

10/12/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - applicant appeals - refusal by the Council of two applications - land division creating one additional allotment; and detached dwelling on proposed new allotment - Residential (Hills) Zone adjoining Commercial (Coromandel Parade) Zone - allotment area, site area per dwelling, size descriptor and density the central issue - allotment frontage, spacing between dwellings, site coverage of built form, areas for tree retention and revegetation enhancement secondary, but important issues - desired character and intent of the Zone considered - locality characteristics and context considered - transition of character away from zone boundary considered - complying development conditions considered - implications for further development of the locality and orderly planning considered - both proposals not conducive to desired character for the Zone, dwelling site area and frontage principles not mandatory but departure significant and proposals not sufficiently in accord with relevant Development Plans - decisions of the Council upheld.

• Development Act 1993 , referred to.
• City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56 ;
• District Council of Tanunda v Davis & Ors (1985) 39 SASR 578 ;
• City of Charles Sturt v Hatch [1999] SASC 824 ;
• Nadebaum v City of Mitcham [1995] EDLR 587 , considered.

Representation

Appellant: ROSLYN LEE WRIGHT
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

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

ERD-02-624, ERD-03-404

Judgment No. [2003] SAERDC 132

23 December 2003

ROSLYN LEE WRIGHT

v

CITY OF MITCHAM

(ERDC Nos 624 of 2002 and 404 of 2003)

[2003] SAERDC 132

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. These matters comprise applicant appeals against the decisions of the City of Mitcham "the Council", to refuse two development applications over the same land, one seeking land division to create an additional allotment (DA No 080/446/02 - marked for convenience as (A) - the land division appeal); and the other for the erection of a detached dwelling (DA No 080/1146/03 - marked (B) - the dwelling appeal), at Brigalow Avenue, corner Gladstone Road, Blackwood.

2. The Council gave reasons for its refusal in each case as set out on pages 17 and 34 in Exhibit R1.

3. A summary of some of the relevant details in these matters is as follows:

Registration of applications: (A) 19 March 2002; (B) 14 July 2003

Subject land address: 6 and 8 Brigalow Avenue, Blackwood

Existing use: Two detached dwellings

Proposal: (A) land division creating one additional vacant allotment of 427 square metres; (B) demolish outbuildings, erect detached dwelling, carport, pergola, fencing, driveway and parking space, landscaping and rebuild dividing fence

Relevant authority: City of Mitcham

Appropriate

Development Plans: Mitcham (City) - (A) consolidated version 20 September 2001; (B) consolidated version 5 June 2003

Relevant Zone/Area: Residential (Hills) Zone - MAP Mit/20; and Living Area - MAP Mit/1 (Overlay 1)

Date of decision: (A) 6 August 2002; (B) 7 October 2003

Appeal lodged: (A) 27 September 2002; (B) 6 November 2003

Conferences concluded: (A) 22 October 2003; (B) dispensed with.

4. Evidence was provided to the Court by Ms J Lewis MPIA, an experienced consultant town planner (refer Exhibit A3), and by Ms H Riggs, a qualified town planner employed by the Council (refer Exhibit A2). The former placed considerable emphasis on the built form and streetscape impacts of the proposals in the locality context, and implicitly, less weight on Zone Principles 3, 5 or 8 in terms of dwelling density. The latter took a narrow approach on the degree of departure from the numerical guide for site areas and frontages for detached dwellings, without much emphasis on the locality context, in particular adjacency to the commercial zoning and medium density housing.

5. The Court viewed the subject land and the locality on 10 December 2003, in the presence of the parties, and it received and considered, in addition to the statements and copy documents, amended proposal plans for each proposal.

The Subject Land

6. The land is relatively flat with the dwelling and outbuildings on 6 Brigalow Avenue set to the right-hand or eastern side and with an open garden area on the western side, and with a similar arrangement at 8 Brigalow Avenue. There are outbuildings and trees in the rear yards and large side gardens of both allotments, including two indigenous "significant trees", to be retained, and the subject land is more fully described in the statements of evidence marked Exhibits A3 and R2.

The Proposal

7. The proposals before the Court are contained in Exhibits A1 and A2 and they have been amended post the Council decision in each case. Firstly, with respect to the land division appeal proposal, the proposed (vacant) allotment No. 5 frontage is increased from 12 metres to 14 metres, and the site area increased from 366 square metres to 427 square metres. A thin sliver of land, approximately 1.6 metres wide from 8 Brigalow Avenue, was added to the proposed new allotment. Secondly, the dwelling appeal proposal was amended coinciding with the amended frontage and site area, and expressly defining a specific site for the new dwelling with separate driveway, independent parking, garaging and open space areas.

8. Whilst the technical description of the dwelling changes from being a "group dwelling" as determined by the Council, to a "detached dwelling", both the land division amendments and the amendments to the dwelling proposal are minor, do not change the essential nature or purpose of the proposals and are of the kind that can be properly considered and determined by the Court.

9. Firstly, with respect to the land division appeal, the proposal creates one additional allotment (that is three allotments from two existing allotments) as depicted on the reduced version of Exhibit A1 attached to this judgment. It provides for:

•	Lot 5 (vacant) - 14 metre frontage, 30.48 metre depth and 427 square metre site area;
•	Lot 6 (existing dwelling at 6 Brigalow Avenue) - 18.10 metre frontage, 30.48 metre depth and 552 square metre site area; and
•	Lot 7 (existing dwelling at 8 Brigalow Avenue, corner Gladstone Road) - 27.98 metre frontage to Brigalow Avenue, 30.17 metre frontage to Gladstone Road, with a depth of 30.48 metres and site area of some 886 square metres.

10. It was noted on the view that one of the significant trees, an indigenous gum tree at the rear, has a trunk that appears to straddle the rear boundary between proposed Lots 5 and 7.

11. With respect to the dwelling appeal proposal, it is for a one storey dwelling with open sided carport/pergola on proposed allotment 5 (as above), with a floor area of some 109 square metres and as set out in the reduced version of Exhibit A2, also attached to this judgment. Key features comprise:

•	front setback of 4.35 metres, west side setback of 2.2 metres, east side setback of 0.9 metres and rear northern setback of some 7.7 metres;
•	height to the ridge of approximately 5.5 metres;
•	roofed area of 171 square metres with 40% site coverage; existing dwellings on Lot 6 with 45.5% coverage and on Lot 7 with 12.4% coverage;
•	new single width driveway on the western side of the new allotment;
•	retention of the existing street trees and several others at the front and rear, including one significant tree at the rear;
•	new picket fence to the front with no detail shown on the plans with respect to side fencing but with Ms Lewis suggesting that the picket fence would return on each side to align with the frontage of the proposed dwelling; and
•	private open space area at the rear of some 110 square metres.

The Locality

12. The locality is that part of the surrounding area of direct influence on the subject land and that the proposal is likely to impact on, to a notable degree. In this case it is to be based on visual and character perception factors (including development pattern and density).

13. I have had regard to the locality boundaries determined by Ms Lewis and Ms Riggs and I find them both to be too restrictive to the north, west and southwest. I define the locality to comprise:

•	to the south for some 80-100 metres including the rail corridor and Nos. 7-15 Brigalow Avenue;
•	to the east for some 80-100 metres including the intersection of Brigalow Avenue with Coromandel Parade and Nos. 2, 4 and 4A Brigalow Avenue and the rear of 26 and the whole of 28 and 32 Coromandel Parade;
•	to the north for some 30-40 metres including 21 Gladstone Road; and
•	to the west for some 80 metres including portion of 18 Gladstone Road and 12 Brigalow Avenue.

14. The zone boundary between the Residential (Hills) Zone and the Commercial (Coromandel Parade) Zone is on the eastern boundary of the subject land between Nos. 6 and 4 Brigalow Avenue.

15. Land use in the locality is predominately residential (detached dwellings), except for the railway corridor to the south, a kindergarten to the south-west - 11 to 13 Brigalow Avenue, a shop and dwelling to the east (corner Brigalow Avenue and Coromandel Parade) and the rear of commercial premises to the northeast at 26 Coromandel Parade. Including the two dwellings on the subject land, there are 14 dwellings in the locality and with regard to residential density (expressed as site area/dwelling and from the factual evidence of Ms Riggs), the makeup is as follows:

•	3 allotments to the east (2, 4 and 4A Brigalow Avenue) located in the Commercial (Coromandel Parade) Zone, approximately 420 square metres site area for each; described as "medium density", a term with which I would agree for this Council area, Zone and locality;
•	4 allotments of over 1,000 square metres and up to 1,800 square metres (Nos. 12, 18 and 21 Gladstone Road, and 32 Coromandel Parade), perhaps reasonable to describe as very low density; and
•	7 allotments in the range of 600-1,000 square metres (Nos. 6, 7, 8, 9, 15, rear 15 Brigalow Avenue and 28-30 Coromandel Parade), reasonable to describe as low density.

16. Most allotments and sites have wide frontages exceeding 15 metres (except on the three sites to the east in the commercial zone at 2, 4 and 4A Brigalow Avenue, which approximate 14 metres).

17. There is a mix of styles and age and condition of buildings, though only the three to the east are new and modern. All are single storey and have small-modest floor size. Front setbacks of dwellings to Brigalow Avenue (2-8 Brigalow Avenue) are in the order of 6 metres and approximately 8 metres on the southern side of Brigalow Avenue, whilst others to Gladstone Road are much larger and in many cases well over 10 metres. Side setbacks also vary, but except for the three new dwellings to the east in the commercial zone, they are in the 3-8 metre range. The three new dwellings to the east have either 0.6 metre or 1.6 metre side setbacks.

18. The eastern parts of the locality are flatter, much less treed, buildings are clearly visible, there are paved footpaths and there is a much more "urban" feeling prevailing. To the north and west (Gladstone Road) and southwest, topography is steeper and more varied and vegetation is more prolific (including indigenous trees), hence there is a more semi-natural character existing.

19. Visual amenity levels are moderate, enhanced by vegetation particularly to the northwest and west, but marred by the appearance and condition of some dwellings, commercial buildings and overhead infrastructure.

Relevant Development Plan Provisions

20. I have considered the various provisions referred to by the experts and in the submissions of counsel and I find the following to be the relevant provisions in the respective Development Plans for assessment of these matters (numbering marked separately for the land division appeal (A) and the dwelling appeal (B)):

METROPOLITAN ADELAIDE

Objectives: (A) 1, 5, 6, 8, 9 and 30;

(B)	1, 6, 8, 9 and 43.

Principles of development control: (A) 3, 4, 8, 9 and 14;

(B) 3,4, 5, 8, 9, 10, 11, 13 and 14.

COUNCIL WIDE

Objectives: (A) 3, 4, 14, 15, 17, 18 and 22;

(B) 3, 4, 5, 8, 14, 15, 17, 18, 19 and 27.

Principles of development control: (A) 1, 2, 3, 10, 16, 37, 38, 39, 40, 41, 44, 48, 49, 54, 57, 140 and 177;

(B) 1, 2, 3, 16, 17, 18, 19, 20, 21, 22, 26, 28, 33, 38, 41, 75, 131, 134, 144, 145, 148, 149, 150, 151, 152, 153, 178 and 179.

RESIDENTIAL (HILLS) ZONE

Objective: (A) and (B) 1; and

Desired character: seven paragraph description; and

Principles of development control: (A) 1, 3, 4, 5 and 8

(B) 1, 3, 6 and 8

COMMERCIAL (COROMANDEL PARADE) ZONE

(Land in the north-eastern quadrant of the locality)

Objectives: 1 and 2;

Principles of development control: 1 and 9

RESIDENTIAL (BLACKWOOD) ZONE

Objective: 1; and

Principles of development control: 2 and 7

TABLE Mit/1

Processing

21. The Council determined the land division appeal as a Category 1 development and no representations or submissions were received thereon. It determined the group dwelling development to be a Category 2 form of development and again no representations or submissions were received. It is to be noted that the amended detached dwelling proposal would now carry a Category 1 classification. No referrals to government agencies were required, particularly as the land is not within the Bushfire Prone Referral Area set out in the Development Plan.

Planning Assessment

22. In accord with case law as I understand it, noting there to be some variation, 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 matters in question, applying weight to each on a planning judgment and circumstantial basis;
•	considering the Development Plan as a flexible, advisory planning policy document, not as a mandatory, legal statute (including Zone Principle 3 and Council Wide Principle 16(b)); as a practical guide for practical application, superimposed upon an existing state of development;
•	considering the merits of the proposals as a whole, the 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 proposals in question and their alignment with the respective Development Plan, not comparing them or testing them 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 Residential (Hills) Zone, sought to be achieved via the Development Plan and the context of the characteristics and facts about the locality and subject land (both historical and current), as well as the proposal details, and whether they are conducive to achievement of the desired character and amenity of the Zone (City of Mitcham v Freckmann & Ors [1999] SASC 234; [1999] 74 SASR 56 at page 62);
•	taking account of different policy provisions in the Commercial (Coromandel Parade) Zone adjoining the subject land; and the reasonable expectations at the boundary of such zone change in terms of amenity levels and character transition; 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 and as a planning judgment, whether the proposal is sufficiently in accord with the Development Plan to warrant consent.

23. In this regard I agree with the approaches put to me by counsel in their submissions.

24. The land division appeal raises the issues of dwelling site area density (on the new allotment and reduced areas of allotments and increased site coverage of existing dwellings thereon) and to a lesser extent frontage width, and their appropriateness to enable a new dwelling and retained dwellings to sufficiently meet the guidelines for dwellings in the Development Plan and the Residential (Hills) Zone and Desired Character in particular. I assume that servicing for the new allotment is achievable and the slope, suitability for residential use of the land and potential access to the public road are all satisfactory. In addition, minor modifications could be made to slightly alter the rear boundary between proposed Lots 5 and 7 to avoid the trunk of the significant tree.

25. The dwelling appeal raises issues of spacing of and around the dwellings relative to other dwellings; and the adequacy of both areas of retained vegetation and areas for additional tree planting in the light of the Zone Objective 1, Desired Character description, Principles 3 and 6, and Council Wide Objective 14 and Principles 16 and 145.

26. All other aspects concerning the dwelling design, orientation, energy efficiency, appearance, private open space, access and parking, tree retention, impact on land form and, subject to conditions or further detail, servicing, including stormwater disposal to meet Council Wide Principles 38 and 41, are or can be made satisfactory.

27. In addition, the proposals are in accord with the strategic intent of the Plan to accommodate additional infill dwellings in existing urban areas but noting the important qualifications regarding local characteristics and policies.

28. Both matters also bring into play considerations of orderly planning, implications of these developments, if approved, on the locality and indirectly, potential for other similar development (allotment areas and dwelling density); equity and reasonable community expectations; weight to be placed on Development Plan zoning, desired character and density guidelines in the face of varying locality and local circumstances; and the role of the Council to review the Development Plan and zoning to ensure relevance and applicability of policy to local areas.

29. In assessing and considering the important issues in these matters and the respective merits of each application, the following Development Plan provisions (using 5 June 2003 version), are of particular relevance and assistance:

"METROPOLITAN ADELAIDE

.....

Objective 1: Orderly and economic development.

[and similar to Council Wide Principle 2.]

.....

Objective 6: A compact metropolitan area.

.....

While a compact form of development is generally desirable, recognition must be given to areas of particular character or amenity, or to specific constraint such as environmental or historical value, water catchment areas and areas of bushfire hazard.

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

9 Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.

[and similar to Council Wide Principle 144]

.....

COUNCIL WIDE

.....

Objective 14: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.

.....

Objective 18: The establishment of medium density residential development in proximity to district centres at Mitcham, Cumberland Park and Blackwood, public transport routes and areas of public open space.

.....

As a result of the above factors, the City of Mitcham contains a cross-section of distinctive living environments. In general, retention of the bulk of these areas in their same form will maintain not only their character but their existing affordable housing stock for future needs. However other areas may be modified or progressively changed over time to reflect more household diversity within the community.

To manage this change so as to achieve and maintain the desired urban character for each of these areas, zones have been created to guide and control future development in accordance with the broad residential development strategy identified on Map Mit/1 (Overlay 1).

.....

Medium density residential development is allowed for in proximity to district centres at Mitcham, Cumberland Park and Blackwood. Elsewhere throughout the city, some specific forms of residential development are encouraged in some non-residential zones. For example, higher density forms of housing including boarding houses and multiple dwellings are encouraged to locate in close proximity to the main public transport and arterial road network running through the council area. Hence these forms of residential development are directed to appropriate parts of the Mixed Use, Commercial and District Centre Zones.

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

16 The site of a dwelling should have an area and dimensions that result in:

(a) development that complements the objectives and desired character of the zone within which it is located;

(b) convenient and safe vehicle access and parking;

(c) adequate provision of private open space;

(d) adequate building set-backs, landscaping and space around buildings so as to enhance the locality and streetscape; and

(e) appropriate solar access to dwellings;

Accordingly;

(a) a detached dwelling site should be capable of containing a rectangular space measuring not less than ten metres by 15 metres which is suitable for the construction of a dwelling sited in accordance with the relevant set-back provisions of this Development Plan.

(b) dwelling sites abutting a public road should have, unless otherwise indicated within a specific zone, a road frontage of not less than -:

(i) 15 metres for detached dwellings;

(ii) nine metres for semi-detached dwellings or, where such sites have frontage to an arterial road, 12 metres;

(iii) seven metres for row dwellings where provision is made for vehicle access at the rear of each dwelling site;

(iv) eight metres for row dwellings where no provision is made for vehicle access at the rear of each dwelling site;

(v) 18 metres for residential flat buildings; and

(vi) 12 metres for all other dwellings.

.....

44 (a) Land division for residential purposes should occur in a form consistent with the existing pattern of division in the locality, and should accord with the relevant provisions of this Development Plan, in particular taking into account in relation to each proposed

allotment:

(i) the future development of a dwelling together with appropriate allowance for access, car parking, building set-back, open space, service area and landscaping:

(ii) the extent of any cut and fill;

(iii) existing vegetation being retained and any proposed to be removed; and

(iv) drainage.

(b) Land division should accord with the desired character of the locality and create allotments that are regular in shape, allow dwellings to address the street satisfactorily, and not result in poorly proportioned or substantially unusable spaces being created within dwelling sites.

......

145 Development, including the clearance of mature indigenous vegetation, should not detract from the character of the locality or hinder the attainment of the desired character of the zone in which the development is to be undertaken.

.....

RESIDENTIAL (HILLS) ZONE

.....

Objective 1: Development comprising detached dwellings on large allotments that maintains and enhances the natural vegetation and features of the Mount Lofty Ranges.

DESIRED CHARACTER

.....

The zone generally comprises the residential suburbs of the City of Mitcham that are situated in the Mount Lofty Ranges. The area has developed a special character in response to a range of physical and environmental attributes including generally rugged topography, an abundance of vegetation, the absence of a deep drainage sewer system in the early years of settlement, the relatively low availability of and access to a range of services and facilities, and a relatively limited road system in terms of capacity and convenience.

As a result of the above factors, the area has developed a unique character typified by generally large to very large allotments mainly accommodating detached dwellings, thus resulting in a very high open space to built-form ratio. This has enabled many areas to remain relatively densely vegetated and the area as a whole to maintain a distinctive natural character.

Subdivision of land and the development of housing have occurred over a long period of time. This, together with the physical constraints of the land, has resulted in a diverse range of subdivision patterns, housing development and streetscapes that together contribute to the area's overall low-density and highly landscaped character. For example, some areas have developed in a traditional grid pattern with straight roads and regular dwelling set-backs representing a relatively formal pattern of development. Other areas have developed with winding roads, irregular allotment patterns and a much less formal streetscape dominated by open spaces that have been left in a more natural or random state.

.....

In addition to the above, the road network and water supply service would be affected by any substantial increase in population in the zone whereby either the level of service would deteriorate or become inadequate, or such services would need to be substantially upgraded to maintain existing levels.

It is desirable that the existing open and landscape character of land within the zone be retained. Creation of new residential allotments that are substantially smaller than existing allotments could potentially dramatically alter the essential elements that comprise the existing character, through the removal of significant amounts of vegetation, alterations to landform, and impacts on creeks and drainage lines. Such development should therefore not occur. This is particularly relevant in the bushfire

prone area and any development in this area should be carefully assessed and if necessary restricted to ensure the overall character of the zone is maintained.

PRINCIPLES OF DEVELOPMENT CONTROL

1 Development should be in accordance with the objective and desired character of the zone.

.....

3 Sites for detached dwellings and land division creating residential allotments should satisfy the following minimum site dimensions applicable to the gradient of each proposed site -

Gradient of Site Minimum Width of Site Minimum Area of Site

(metres) (square metres)

1:8 or less 12 1200

between 1:8 and 1:4 21 1500

greater than 1:4 30 2000

.....

5 Semi-detached dwellings and residential flat buildings comprising two dwellings should only be developed on sites where:

(a) the gradient is less than 1:8.

(b) each dwelling site area is greater than 600 square metres.

(c) each dwelling site has a minimum road frontage of 11metres.

6 Development should be designed and sited to relate to the slope of the land and the natural character of the area so that:

(a) the bulk and scale of buildings respond to, rather than dominate, the natural landscape.

(b) existing vegetation that contributes to the character of the area is retained wherever reasonably possible.

(c) the natural drainage characteristics of the land are retained and all creek and drainage lines are maintained in a natural state.

(d) landscaping incorporating trees and shrubs of primarily indigenous species is provided to reduce the visibility, bulk and scale of buildings and structures.

(e) cutting and filling of the natural ground profile is obscured from view by existing vegetation wherever possible and softened by new planting;

(f)	the need for retaining walls is avoided, or if retaining walls are necessary their height is minimised and they are screened by existing vegetation wherever possible and suitably landscaped;

(g) the use of bright and highly reflective external materials and finishes is avoided on buildings and structures that are prominently visible from roads, reserve areas or other public places;

(h) the extent of any vegetation clearance required for bushfire protection will not significantly detract from the natural character and appearance of the locality.

.....

8 The following development is complying in the Zone subject to compliance with the relevant conditions contained in Table Mit/1:

Single-storey additions to a detached dwelling

Domestic outbuilding

Detached dwelling on a site in accordance with each of the following minimum site dimensions applicable to the gradient of the site:

Gradient of Site Minimum Width of Site Minimum Area of Site

(metres) (square metres)

1:8 or less 12 1200

between 1:8 and 1:4 21 1500

greater than 1:4 30 2000

.....

COMMERCIAL (COROMANDEL PARADE) ZONE

.....

Objective 1: A zone accommodating residential, minor servicing, commercial, community and office related activities which generate low traffic volumes, and in a manner which

will enhance the appearance of the zone and maintain the free flow of traffic on Coromandel Parade.

Objective 2: A zone accommodating residential development and a range of low-intensity commercial, community and office activities which do not compete with, or detract from, the functioning of the adjacent district centre and which will retain and enhance the buildings, gardens, streetscape and items of heritage significance in the zone.

......

PRINCIPLES OF DEVELOPMENT CONTROL

1 Development undertaken in this zone should be for a range of residential uses and for community, commercial, office and minor service activities which are of low-scale and which generate low traffic volumes.

.....

9 The following kinds of development are complying in the Commercial (Coromandel Parade) Zone subject to compliance with conditions comprising, where applicable:

(a) the conditions prescribed in Table Mit/1;

(b) the building set-back conditions prescribed in Table Mit/2 except an advertisement; and

(c) the development not being located on a site, or abutting a site, containing an item of heritage significance listed in Table Mit/3:

Advertisement - only those listed in Table Mit/1

Recreation Area

Residential Flat Building of one-storey."

30. I agree that the locality context is significant in considering and applying the Development Plan, particular zone guidelines. Occasionally the zoning provisions appear to make no sense or have no relevance or similarity to particular locality characteristics and are no longer achievable. In such instances, locality or streetscape "fit" of new development may be much more important than zone guidelines. In these matters, that is not the case. The zoning intent and locality context are not so far apart, notwithstanding the adjacency to a mixed use commercial zoning that accommodates as of right, one storey residential flat buildings and with three existing new allotments and dwellings with site areas of 420 square metres and frontages of approximately 14 metres. The remainder and majority of the locality are reasonably consistent with the Residential (Hills ) Zone provisions.

31. Firstly with regard to allotment size and site areas per dwelling (for the new vacant allotment and dwelling - 427 square metres, and for the reduced area of allotments for the existing dwellings of 552 and 886 square metres), the proposal is a very significant departure from the clear guideline in Zone Principle 3 seeking 1,200 square metres for a detached dwelling, to the extent that the proposal borders on being "seriously at variance" with the Development Plan, as that term is used within the Development Act 1993 at s.35(2). I have taken into account the following:

•	the perhaps conservative complying development density of 1,200 square metres (Principle 8) for detached dwellings, but noting that it is the same as for Principle 3 for assessment of 'on merit' proposals;
•	the lesser site area/dwelling densities that may be acceptable in parts of the Zone for other dwelling types such as semi-detached dwellings (Principle 5 - 600 square metres per dwelling);
•	the medium density dwelling densities that may be acceptable in parts of the Residential (Blackwood) Zone given the somewhat similar locational relationship to the District Centre, of 450-500 square metres vide Principles 2 and 7;
•	the Residential (Foothills) Zone providing 700-800 square metres per dwelling vide Principles 2 and 7;
•	the Residential (Central Plains) Zone providing for 600 square metres in Principle 3 and most policy area variations in the 450-550 square metre range, except for one policy area; and with the fact that proposed Lot 5 at 427 square metres is less, in many cases significantly so, than all of the above comparisons;
•	the reasonable planning notion (District Council of Tanunda v Davis and Ors [1985] 39 SASR 578 at page 581), of a transition of character and policies, in this case site areas/dwelling density extending westward (on the northern side of Brigalow Avenue) away from the commercial zone where medium density development has occurred on 420 square metre site areas; which might reasonably see proposed allotment 6 remain at 550 square metres, proposed allotment 5 being increased to at least 600 square metres (which would require a 19.7 metre frontage, given the fixed depth), and proposed allotment 7 being reduced to 700 square metres (though this would necessitate demolition of the dwelling at 8 Brigalow Avenue);
•	consistency with lot sizes opposite at 7 and 9 Brigalow Avenue (700 and 600 square metres respectively) and with a positive assumption that the two attached dwellings development application pending at 32 Coromandel Parade (refer Exhibit A4), would be approved and at an average of some 615 square metres per dwelling;
•	implications for the locality if approval was given to a 427 square metre allotment, particularly the clear opportunity, though hypothetical, for a further similar sized and dimensioned allotment out of proposed Lot 7 on the western side of the existing dwelling; for a redevelopment of 7 and 9 Brigalow Avenue opposite to create three (1 additional) allotments at about 430 square metres each; and even placing pressure on further division and closer development of 12, 18 and 21 Gladstone Road, sites that exceed or are near to the 1,200 square metre Zone guideline sought for detached dwellings; and
•	allotments of 427 and 552 square metres are not "large" as referred to in Zone Objective 1 and parts of the Desired Character statement, in a locality, Zone or Mitcham Council context. I describe them as being small-medium sized.

32. The frontage proposed for allotment 5 of 14 metres, whilst consistent with the new dwellings adjoining to the east in the commercial zoning, is not typical for the remaining three-quarters of the locality, which have larger frontages. A larger frontage than 14 metres is desirable. However, having regard to Council Wide Principle 16(b) - 15 metre frontage and to the Zone Principles 3 and 8 (12 metre width of site and 15 metre frontage in Table Mit/1), and to Zone Principle 5 (11 metres for semi-detached dwellings), this feature of the proposals is acceptable in isolation of other considerations.

33. The consequences of the proposed allotment sizes and frontages on site coverage of built form and remaining space around the buildings (existing or proposed) for both retention of trees and the planting of additional enhancing vegetation, is also important in light of the only Zone Objective, the Desired Character paragraphs 3 and 7, and Zone Principle 6(d).

34. On the evidence of Ms Lewis the proposals are as follows:

•	allotment 5 (proposed dwelling) - 40 percent site coverage of built form, setback 4.3 metres to the front and 0.9 and 2 metres to each side boundary;
•	allotment 6 (existing dwelling) - 45.5 percent site coverage of built form, with new west side setback of 0.9 metres; and
•	allotment 7 (existing dwelling) - 12.4 percent site coverage and new eastern side setback of approximately 2 metres.

35. Whilst the Development Plan guidelines (Council Wide Principle 19 and Zone Principle 8 and detail in Table Mit/1), might envisage setbacks of 1 metre from one side boundary and 3 metres from the other, and 40 percent site coverage is a guide in most residential zones, though none is provided for in the Residential (Hills) Zone, the locality is predominately characterised by very low site coverage in the 10-15 percent range and significantly greater side (though not front) boundary setbacks and spacing of dwellings.

36. The proposals will not maintain or allow an open, semi-natural landscape character with unobtrusive buildings to be achieved, contrary to the spirit and intent of the Zone, even allowing for the "atypical" parts of the locality and an adjacency and location adjoining a mixed commercial zoning that allows for medium density development. I find there to be insufficient space (0.9 and 2.0 metres) to the sides between both existing dwellings and the proposed dwelling to plant vegetation and trees of substance to enhance and maintain the landscape, vegetated character envisaged for the Zone.

37. Whilst there is no planning doctrine of "precedent" as such in planning decision making (Bleby J in City of Charles Sturt v Hatch [1999] SASC 824); nevertheless the likelihood of a flow-on effect for potential further redevelopment in Brigalow Avenue (and even Gladstone Road) from a progression of changes referred to above, should be considered (Judge Bowering in Nadebaum v City of Mitcham [1995] EDLR 587 at pages 591 and 592). I find that such proposals would be contrary to the spirit, intent and desired character for the Residential (Hills) Zone.

38. The community has reasonable and valid expectations of reliance upon and consistency of planning authority decision making with the Development Plan, unless it is patently in error or irrelevant to the facts and the circumstances. If the Council or Minister see fit to review the desired development and future character sought for any land, then the Plan Amendment Report process is the appropriate mechanism under the Act, to bring about such a policy change. This involves proper investigations and review of policy and opportunity for community consultation and processing through the various administrative and political processes. It is not for the Court to take on that role on an ad hoc development application basis, ignoring clear policy direction in the applicable Development Plan.

39. On all of the above bases, I consider that the proposal does not represent orderly planning.

Conclusions

40. I consider that the proposed new vacant allotment is significantly undersized assessed against the Development Plan guidelines (being only about one-third of that sought for detached dwellings or on the most generous of comparisons only a little over two-thirds of that sought for semi-detached dwelling types in the Zone), or on other reasonable and proper planning approaches as considered above. The allotment frontage is marginal and not in keeping with the predominant frontage pattern in the locality.

41. It follows that the site of the detached dwelling proposal is similarly undersized and represents what might be termed "medium density" development, rather than a detached dwelling development on a large allotment at low density, with sufficient space around the buildings, particularly the sides, for the planting of further substantial trees or other vegetation so as to preserve and enhance the natural character of the Mt Lofty Ranges and move toward greater achievement of the Objective and Desired Character for the Zone. Site coverage on proposed Lot 6 (existing dwelling) and Lot 5 (proposed dwelling) significantly exceed those predominating in the locality, and similarly side setbacks between dwellings are well short of those predominating in the locality. The fundamental desired character test is not met and these other factors need to be significantly weighted. I consider that the proposals do not sufficiently comply with the respective Development Plans as a whole to warrant consent.

Decision

42. Both appeals are dismissed and the decisions of the Council to refuse the applications are confirmed.

43. There will be an order to that effect.