Aspex Building Designers Pty Ltd v City of Burnside No ERD-02-640 [2003] SAERDC 2 (8 January 2003)

Last Updated: 12 January 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

16/12/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application for a single storey detached dwelling and two single storey group dwellings - Residential R550 Zone - refused by the Council - planning merits - issues of adequacy of frontage for the dwellings, site coverage of buildings, driveways and parking areas, adequacy of private outdoor living space, streetscape and rear yard amenity and character impacts, internal amenity for future occupants, promotion of energy efficient design and overall standards of design considered - the zone objective and desired character considered in the context of the locality characteristics - certain minor amendments envisaged - proposed development sufficiently accords with the Development Plan - appeal upheld and decision of Council reversed - conditional provisional development plan consent granted.

• Development Act 1993 ;
• Development Regulations 1993 , referred to.
• City of Mitcham v Freckmann (1999) 74 SASR 234 ;
• Toyias & Ors v Alan Sheppard Homes Pty Ltd & Ors [1997] SASC 6160; (1997) 69 SASR 42 , considered.

Representation

Appellant: ASPEX BUILDING DESIGNERS PTY LTD
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

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

ERD-02-640

Judgment No. [2003] SAERDC 2

8 January 2003

ASPEX BUILDING DESIGNERS PTY LTD

v

CITY OF BURNSIDE

(ERDC 640 of 2002)

[2003] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an applicant appeal against the City of Burnside ("the Council") to refuse Development Application No.180/00870/02/CA, for the demolition of existing buildings and erection of a detached dwelling and two group dwellings. The Council gave as its reasons for refusal:

•	"The dwellings are not compatible with existing dwellings in the locality in terms of scale and streetscape impact.
•	The setback, driveway width and private yards do not conform to the zone requirements.
•	There is insufficient room for greening of the properties".

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

Date of application : 29 July 2002 (registered)

Subject land address: 18 Primrose Terrace, Rosslyn Park

Existing Use Detached dwelling, "granny flat", outbuildings and garage

Proposal: Demolish existing buildings and erect single storey detached dwelling and two single storey group dwellings with ancillary garaging, landscaping and fencing

Relevant authority: City of Burnside

Appropriate

Development Plan: Burnside City) consolidated version 20 June 2002

Relevant Zone: Residential R550 Zone (MAPBur/5)

Date of decision: 1 October 2002

Appeal lodged: 9 October 2002

3. This matter was the subject of a pre-trial conference concluding on 23 October 2002, however no settlement was achieved and it proceeded to hearing.

4. Sworn evidence was given by two experts, firstly Mr R McBryde, MPIA and secondly by Ms W Bell, FPIA, FRAIA, MTPI, both qualified and experienced town planners, with the latter also being a qualified architect.

5. The Court noted that Council's professional planning staff recommended conditional consent to the proposal.

6. The Court viewed the subject land and the locality on 16 December 2002 and it received statements from the two experts, together with amended proposal plans (Exhibit A1) and copy documents (Exhibit R1).

The Subject Land

7. The subject land comprises Allotment 90, DP843, contained in Certificate of Title Volume 5728, Folio 7 and it has a depth of some 90.96 metres and a wide frontage to Primrose Terrace of 24.38 metres and being regular in shape, it has an approximate site area of 1,486.4 square metres.

8. The land lies on the eastern side of Primrose Terrace between The Parade and Park Avenue. It rises from Primrose Terrace to the east and to the south with a diagonal height difference from front to rear, according to Mr McBryde, of approximately 3.29 metres.

9. Erected on the site is a 1950s style, terracotta tiled roof, detached dwelling of modest proportions and appearing externally to be in reasonably good condition. It is setback from the street frontage approximately 13.8 metres to the front wall of the dwelling, with the porch protruding forward by approximately 2 metres. A low brick fence is constructed on the front boundary.

10. The front garden area contains a number of shrubs and trees, none of which is a "significant tree", within the meaning of the Development Act 1993. A tall "Lilly Pilly" tree is located in that area near to the north side boundary and 16 Primrose Terrace. Both experts agree that as best can be determined, the circumference of the trunk is less than 1.5 metres, measured at a height of 1.0 metres above ground level. Other trees comprise a "Prunus" and an "Oleander" at the front northern side, and there is another tall "Lilly Pilly" tree and a "Sycamore" tree (in the opinion of Ms Bell), on the rear north side boundary. There are also a number of old almond trees forming part of an original domestic garden and orchard at the rear.

11. To the east and rear of the dwelling are three other buildings, comprising a garage, an outbuilding and a "granny flat". These buildings are of poor quality, condition and appearance. Behind these buildings the rear yard is in a state of neglect and is overgrown. Side and rear boundary fencing is in the order of 1500 mm galvanised iron post and rail construction, in average to poor condition.

The Proposal

12. The proposal has been amended post-Council decision as shown on the plans contained in Exhibit A1 and these are relatively minor, do not change the nature or essential purpose of the proposal and accordingly the Court is able to consider and determine the matter based on these amendments.

13. The proposal is to demolish the existing single storey detached dwelling, and the rear "granny flat" and all other outbuildings and erect a single storey, three bedroom detached dwelling fronting Primrose Terrace; two, single storey, three bedroom group dwellings with common driveway access, erected at the rear, together with, in each case, integrated double garages; and with replacement side fencing and other landscaping. The proposed detached dwelling will replace the existing dwelling in approximately the same position, while the two group dwellings will be located at the rear of the detached dwelling facing a shared driveway leading from Primrose Terrace along the southern boundary.

14. The proposed detached dwelling, Dwelling No. 1, has a frontage of some 17.5 metres to Primrose Terrace and site area of 550 square metres, leaving a rear balance of some 936 square metres for the group Dwelling Nos. 2 and 3, and with a 6.88 metre frontage to Primrose Terrace.

15. Each dwelling comprises three bedrooms, the main bedroom having an ensuite, with further rooms including family/meals/kitchen, living room, bathroom, laundry, entry and store. Dwelling 1 has a verandah along the external wall of the family/meals room facing north, whilst Dwelling Nos. 2 and 3 have a pergola or verandah on the northern side of the family rooms.

16. Each dwelling has a north facing living area and private open space (including, on the evidence of Mr McBryde, with which I agree, open verandah and/or porch and/or pergola), with percentages relative to floor area of 51.5 percent for Dwelling 1, 51.97 percent for Dwelling Nos. 2 and 3, or expressed as 56.6 percent for the subject land overall.

17. Dwelling 1 has a double garage access via a new 3.5 metre wide driveway leading from Primrose Terrace, whilst the rear Dwelling Nos. 2 and 3 also have double garages accessed from an enlarged 6 metre wide driveway leading from Primrose Terrace, tapering to 3.5 metres in width for much of its 53.5 metre length. Each double garage has visitor parking standing positions in front.

18. A retaining wall of varying height is to be constructed around the rear and part of the northern and southern side boundaries as shown on the plans. Each dwelling is to have different finished floor levels related to the slope of the land in order to equalise the cut and fill.

19. The proposed front setback of the detached dwelling is 10 metres and setbacks from the northern side boundary are 3.8 metres to 5 metres for Dwelling Nos. 2 and 3, and 5.5 metres for Dwelling 1 (to the verandah line) and 1.2 metres for its garage.

20. Dwelling 3 is setback from the rear eastern boundary some 1.0 metres and from the southern boundary just over 1 metre. Dwelling Nos. 1 and 2 each have a separate 1.2 and 1.0 metre wide walkway between (respectively) their common boundary and a 1.0 metre wide walkway separates Dwelling Nos. 2 and 3.

21. All dwellings will have slate grey Colorbond iron roofing, and Dwelling 1 will have rendered walls and a painted finish in light sandstone, whilst Dwelling Nos. 2 and 3 will have exposed red brickwork with rendered painted quoins.

22. Internal living spaces, garage areas, porches and verandah sizes and private open space areas are marked on the plans (Exhibit A1), with a total site coverage of roofed areas comprising some 39 percent.

23. Total development of buildings, driveways and car parking areas is approximately 951 square metres or 60 percent of the site area, but if group Dwelling Nos. 2 and 3 and their combined site are considered separately, a site coverage of some 66 percent (Mr McBryde) or 69 percent (Ms Bell) arises.

24. Most of the existing trees are proposed to be removed with the exception of two on the Primrose Terrace frontage of Dwelling 1. However in oral evidence and submissions of counsel for the appellant, four other trees can be retained - two (Prunus and Oleander) on the front, north side of Dwelling 1 and two (Lilly Pilly and Sycamore) on the north side, rear yard of Dwelling 3. Trees to be removed include another mature, substantial "Lilly Pilly" tree in the front garden on the northern boundary, together with a range of other lesser quality shrubs and trees.

25. New landscaping includes planting of trees and shrubs along the northern and southern sides of the access driveway to the rear dwellings; on the northern side of the driveway in front of Dwelling 2; in the forecourt of Dwelling 3; on the northern rear boundary of the sites for Dwellings 1, 2 and 3; and within an enlarged area in the front north-east corner of the site of Dwelling 1. Species are nominated - three are low-mid level shrubs and only one is a tree comprising a "Manchurian Pear", said by Mr McBryde to be ornamental, deciduous, with a clean trunk, and with a height in the order of 3 to 4 metres (though Ms Bell disputed this and thought it more like 6 metres).

26. Colorbond fences of some 1.8 metres in height are to be erected on the top of the rear retaining wall providing an overall height tapering from 3 metres at the south-eastern corner to 2.7 metres at the north-eastern corner; along the southern boundary; along the 1 metre retaining wall between Dwelling Nos. 1 and 2; between Dwelling Nos. 2 and 3; between the common driveway for Dwelling Nos. 2 and 3, and the southern side of Dwelling 1; and along the balance of the southern and northern boundaries of the subject land. There is no fence shown on the street frontage.

27. The proposal is not for land division, but on the evidence of Mr McBryde, there is an intention on the part of the proponent to subsequently seek a land division of the site to comprise the site of Dwelling 1 as a Torrens Title allotment of the same dimensions/area and a site comprising the combined sites of Dwelling Nos. 2 and 3 with shared driveway on a Torrens Title allotment - to be the subject of a later community title division with two community titles and common property.

The Locality

28. 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 primarily on visual and character perception impacts and to a minor extent on vehicle movement and associated noise.

29. I find that the locality boundary by Ms Bell (Exhibit R2) extends too far in a northerly direction and that the locality boundary of Mr McBryde (Exhibit A2) is too localised in the northerly direction. Accordingly, I find that the locality extends for a distance of approximately 100 metres to the north, some 80 metres to the south, some 50 metres to the west and some 30 to 40 metres to the east. It comprises most of the sites of the properties with street numbers 5-23 and 8-18A Primrose Terrace, 23-31 Park Avenue and 13-17 Gordon Terrace.

30. The dwellings in the locality are all single storey and with a mix of architectural styles evident, from red and cream brick cottages, to "Tudor", "Georgian", "Skillion" with block sandstone fronted wall and a group of five residential flats (at 12 Primrose Terrace), and with but a few exceptions, the predominant roofing material is grey or terracotta tiles on gabled and hipped roofs.

31. The general age of dwellings in the locality is likely to be from the 1950s for the cottages, to perhaps the 1970s, for the cream brick "Georgian" dwelling at 18A Primrose Terrace abutting the southern boundary of the subject land. There is some evidence of recent infill redevelopment, comprising the additional dwelling at 13A Gordon Terrace. Just a little further to the northwest and to the south-west there is significant additional recent infill redevelopment.

32. Dwelling setbacks on the western side of Primrose Terrace vary from approximately 9 metres (23 Primrose Terrace), to 7 metres for dwellings further north, whilst a dwelling opposite at 15 Primrose Terrace has a 4 metre setback to a carport located in front of the dwelling.

33. At 12 Primrose Terrace to the north, the street setback to carports constructed in front of the five residential flats is about 6 metres and the front walls of these carports comprise a Besser block screen of approximately 1600 mm high with timber railing above. The total height of the carport is approximately 2.7 metres. The residential flat building is constructed in an east/west alignment along the full depth of the allotment with north-south facing aspects for each dwelling.

34. Front setbacks on the eastern side of Primrose Terrace vary from 15 metres for the "Tudor" dwelling abutting the northern boundary of the subject land at 16 Primrose Terrace, to 10 metres for the dwelling on the southern boundary at 18A Primrose Terrace and with 9 metres for the dwelling at No. 14 Primrose Terrace.

35. I agree with Mr McBryde that there is no predominate setback on the eastern side of Primrose Terrace compared with a greater uniformity of setbacks on the western side where allotment depths are shallower. On corner sites such as 23 Park Avenue, the setback to Primrose Terrace is reduced to 4 metres as it forms a secondary road frontage for the dwelling at 23 Park Avenue.

36. Mr McBryde observed that a common feature of the locality is a relatively uniform treatment of side boundary setbacks, approximately 1 metre for the alternate side of development to the driveways. Where carports or garages exist, he noted that side setbacks commonly vary from quite narrow to no setback, and that in some instances driveways extended past the side of the dwellings to rear of allotment garages, as is proposed in this matter.

37. Buildings on neighbouring properties to the subject land include along the southern boundary several outbuildings, mainly large sheds and garages. There is also a relatively near dwelling at the rear at 13A Gordon Terrace, located to the north-east of the subject land. To the east there is also another outbuilding comprising an unpainted garage at the rear of 15 Gordon Terrace.

38. Allotments are generally of a relatively uniform shape with the exception of the "battle-axe" at 13 and 13A Gordon Terrace (and some others on the northern extent of the locality at 2 and 4 Primrose Terrace). The prevailing pattern is of generous frontages of some 15 to 18 metres or more and extensive allotment depths of 60 metres on the eastern side of Primrose Terrace but with shallower depths on the western side comprising some 45 to 48 metres.

39. Primrose Terrace is a local residential street of approximately 20 metres in width, with a pavement of approximately 8 metres and two footpaths on each side of approximately 16 metres in width (including substantial grassed verges). Street trees are relatively young and immature, though prominent, having been recently planted by the Council on the verges. I agree with Ms Bell that the more significant vegetation and trees are planted on private properties forming a vegetated backdrop to the streetscape.

40. In summary, I generally agree with Mr McBryde that the locality is to be characterised as follows:

•	a mix of various architectural styles of low-scale detached, single storey dwellings;
•	small or zero side boundary building setbacks except where necessary for driveways;
•	a wide street with wide road pavement and grassed verges;
•	generous setbacks from the street in most cases ranging from 7 metres to 15 metres in some instances (but with exceptions on corner allotments and with one protruding carport);
•	well established front gardens with an average to good level of amenity in most instances;
•	modest rear-of-allotment development at 12 Primrose Terrace and 13A Gordon Terrace (as well as the outbuildings and second dwelling on the subject land itself) and extensive shedding abutting the southern boundary of the subject land located to the rear of Nos. 27-29 Park Avenue and 18A Primrose Terrace;
•	generally average to above average level of residential amenity, contributed to by landscaping of front setbacks, the street width treatment and low traffic movement; and
•	driveway crossovers generally limited to single vehicle width or conservative double width driveway access to wide frontages of the order of 15-18 metres.

Relevant Development Plan Provisions

41. 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 Burnside (City) Development Plan, consolidated version 20 June 2002.

METROPOLITAN ADELAIDE

Objectives: 1, 5, 6, 7, 8, 9, 24 and 42; and

Principles of development control: 3, 4, 8, 9, 10, 11, 13 and 15.

COUNCIL WIDE

Objectives: 1(b)(c), 2, 3, 5, 10, 11, 17 and 28; and

Principles of development control: 1, 2, 3(a), 8, 13, 17, 19, 20, 21, 23, 26(a)(d)(e), 29, 56, 57, 58, 59, 60, 61, 64, 65, 67, 112, 115, 116, 117, 119(c), 121, 122, 124, 125 and 138.

RESIDENTIAL R550 ZONE

Objective: 1; and

Principles of development control: 1, 3, 6, 7, 8 and 9.

Processing

42. The proposal was determined by the Council to be a Category 1 development and the Court understands that informal consultation occurred with neighbours and this resulted in two submissions being received by the Council. No person sought to be joined in this matter and no adjoining or other residents gave evidence in the hearing.

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

The Evidence

44. Ms Bell came to the conclusion that "the development is inconsistent with the provisions of the Development Plan in terms of:

•	Site coverage;
•	Design and amenity affected by an over development of the site accommodating the multiple [sic - group]dwellings;
•	Site definition between the detached dwelling and the multiple [sic - group] dwellings;
•	Site access in terms of driveway width and setback from boundary to accommodate landscaping; and
•	Energy efficient design."

45. She felt that these inconsistencies and variations were sufficient to warrant refusal and that "redesign is warranted".

46. On the other hand Mr McBryde came to the conclusion that "the proposal generally meets all the quantitative criteria set out in the Residential R550 Zone (with the exception of Principle 3(b)(i)) and substantially complies with the relevant Metropolitan and Council Wide Objectives and Principles of Development Control". He went on to conclude from his assessment "particularly having regard to the Zone Objective and qualitative Principles 6(a) and (b), together with Metropolitan Objective 42 and Council Wide Objective 28 and Principle 29, together with an assessment of the relevant numerical criteria set out in Zone Principles 1, 3, 6 and 7 that the development proposal substantially accords with the Burnside (City) Development Plan provisions and warrants consent".

47. The experts agreed that, in principle, three, single storey dwellings are appropriate on the subject land and that the key issues in dispute related to detailed design considerations.

Planning Assessment

48. 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 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, 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 proposal in question and its alignment with the Development Plan, not comparing it with 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 and the subject land (both historical and current) as well as the proposal details and whether it is conducive to achievement of 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.

49. I have reviewed the several aspects of the proposal not in dispute between the parties or the experts, against the relevant Development Plan provisions, including particularly dwelling type, site area/dwelling and dwelling densities generally (three dwellings); scale and height of the proposed one storey dwellings; setbacks to both front, side and rear boundaries; maintenance of privacy for neighbours; access, on-site parking, garaging dominance and several other aspects. I find that these all sufficiently meet the Development Plan guidelines and are acceptable in principle.

50. The only Objective for the Residential R550 Zone is:

"Objective 1: A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

51. I note that this is the same Objective as for the Residential R450 Zone, but it is to be contrasted with others such as the Residential R625 Zone, where greater qualifications are provided in terms of compatibility with the predominant character of the zone, allotment widths, setbacks and garden areas. The Residential R550 Zone Objective is primarily concerned with compatibility of a development with existing dwellings in terms of scale and streetscape impact. This is the most specific Development Plan direction and is the broad intent for the subject land, the locality and the Zone.

52. The proposed development is neither complying (Principle 8) nor non-complying (Principle 5) in the Residential R550 Zone, and is therefore for consideration on its merits.

53. I first consider the issue of adequacy of the frontage of the site (6.88 metres) for two group dwellings, and given there to be an intention and likelihood of a subsequent land division, should the current proposal be approved and implemented, both Zone provisions and Council Wide Land Division provisions are of some relevance. They are:

"RESIDENTIAL R550 ZONE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

....

1	Any site for the accommodation of a detached dwelling should have an area of no less than 550 square metres and a frontage of no less than 15 metres.

.....

3 Any allotment for the development of residential flat buildings or group dwellings should have:

(a)	a site area of no less than 425 square metres for each dwelling; and
(b)	a frontage of no less than:
(i)	18 metres for two group dwellings; and
(ii)	20 metres for three or more group dwellings or a residential flat building."

.....

"COUNCIL WIDE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

8	Allotments should be located and designed in respect of:

(a) the size, shape and layout of allotments; .....

to contain a site suitable for building and development ..... consistent with the objectives and principles of development control for the zone concerned.

.....

13	No irregularly-shaped allotments having the main area of the allotment set-back from a road and connected to that road by a narrow strip of land should be created unless:

(a) the strip of land connecting the main area of the allotment is generally not less than five metres in width and should:

(i) where two or more dwellings may be developed on that allotment, be capable of providing suitable driveway access to the main area of the allotment in accordance with the relevant provisions of principle of development control numbered 19; and

(ii) provide landscaping opportunities to maintain the appearance of the strip of land in a manner which will maintain and enhance the character and amenity of the locality in which the land is situated; and

(iii) where circumstances justify portion of the strip of land being less than five metres in width, it should be not less than that width within six metres of the boundary of a public road for an allotment capable of containing one dwelling and where two or more dwellings may be developed on the land the width of that part of the strip of land shall be not less than seven metres; and

(b) the main area of the allotment is suitable for development of the land in a manner not inconsistent with the policies applying in the zone concerned."

54. Varied interpretations and approaches can be taken to this issue based on these provisions. On one approach placing emphasis on the word "allotment" in Zone Principle 3, the whole of the current allotment frontage could be considered (eg. 24.384 metres, compared to the 18 metre guideline in Principle 3(b)(i) for two group dwellings - located by definition, one behind the other), notwithstanding that the proposal also includes a detached dwelling on a site with a specified frontage of 17.5 metres of the 24.384 metre total.

55. If weight was placed on the "site" for each, effectively the site for Dwelling 1 with frontage of 17.5 metres meeting Zone Principle 1, and the "site" for Dwelling Nos. 2 and 3 combined (given the common driveway) of 6.88 metres, such frontage would fall short of the "allotment" frontage of 18 metres specified in Zone Principle 3(b)(i).

56. However, consideration might also be reasonably given to two other guidelines, namely Principle 3(b)(ii) - where the intent is that for three or more group dwellings, an "allotment" with a frontage of greater than 20 metres is required, where the spirit of such guideline is met; and Principle 13(a)(iii), which supports land division and allotments with a frontage of 5 metres to a roadway, whilst envisaging and not limiting its use for two group dwellings.

57. I also note that similar "battle axe" shaped allotments have been approved and are in existence at 13A Gordon Terrace (within the locality), at 2 and 4 Primrose Terrace, at 5 Ayr Street and at 20-22 Park Avenue (to the north-west and south-west of the subject land respectively - vide Exhibit R1, page 10, locality map extract from the Council's GIS); both located just outside of the defined locality but in the same Zone.

58. Considering all of these interpretations and approaches, I am satisfied on a planning assessment basis, that frontages are acceptable and sufficiently meet the spirit of the relevant Development Plan provisions. Ms Bell acknowledged as much, in oral evidence.

59. Turning to the next issue of the combined site coverage of buildings, driveways and parking areas (but not of buildings alone given that the criteria in Residential R550 Zone Principle 6(a)(i) is met), I find that the relevant Development Plan guidelines for this aspect is as follows:

"RESIDENTIAL R550 ZONE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

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

.....

(c) in no circumstances:

.....

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

60. There is a discrepancy in the calculations by the two experts concerning the driveway areas (and hence the percentage coverage), such that the figure for the site containing group Dwelling Nos. 2 and 3 (excluding the site for Dwelling 1) will either have a site coverage of some 66.4 percent (Mr McBryde) or some 69.4 percent (Ms Bell). This discrepancy is not surprising given firstly, the late introduction of the amended plans and short timeframe for recalculations, and secondly given the "curved" driveway alignments and areas, the lack of precise definition between paved driveway and paved pedestrian pathways or spaces.

61. It is relevant to note firstly, that it is the extent of paved driveway and parking areas that are in question (not the roofed building area given compliance with Principle 6(c)(i)). Also of note is that paved pedestrian areas or paved courtyard open space areas are not included in these calculations. Secondly, it is relevant that the calculations for the proposal over the whole of the subject land site approximately meets the 60 percent guideline. Hence on one, quite reasonable, if not the preferred approach to interpreting the above Development Plan clause, the guideline is met. If the approach of considering just the site of Dwelling Nos. 2 and 3 together were to be taken and the variation considered significant, there are options for minor amendment (shortening) of the driveway areas by 1 metre in length in front of each double garage, a reduction in 5 square metres in each case, a total of 10 square metres for the balance of the site, or 15 square metres when the subject land is considered as a whole. This would mean that the 60 percent guideline would be met, on the alternative interpretation.

62. However, I have concluded that the variance is not significant in terms of space around the buildings, extent of hard paved areas generating stormwater runoff, space available for soft landscaping, adequacy of private open space for each dwelling and impact on the predominant character and amenity of the locality and therefore that such minor amendments are not required. Based on the Development Plan guidelines, and having regard to the locality, I do not find the development to comprise an overdevelopment.

63. The third issue I turn to is adequacy of private outdoor living space for each dwelling with the relevant guidelines comprising:

"RESIDENTIAL R550 ZONE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

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

.....

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

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

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

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

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

(v)	one part of which is capable of containing a rectangle measuring not less than five metres by eight metres."

64. On my analysis, having regard to the dimensions on the site plan (Exhibit A1) and to the calculations of Mr McBryde and including the outdoor areas contained under pergola, verandah or open porch, all of the criteria for each dwelling are met, though just so, for Dwelling 2.

65. On the basis of the extent of site coverage including driveway and parking areas, and the provision of private outdoor living space for each dwelling, Ms Bell was of the opinion that the proposal represents an "overdevelopment" and submissions were made by counsel for the respondent to the same effect. I find there to be no justifiable reason to come to that conclusion and such term or criteria, if it could be called that, is not found in the Development Plan. I find that not only are the numerical criteria met, but also the more subjective qualitative criteria (refer below) and including the Residential R550 Zone Objective (quoted above).

66. The only aspect in my view that was seriously challenged relates to streetscape impact of the proposal, more particularly by the appearance of the common driveway (with a view of the double garage of Dwelling 3, well setback at the rear), trees to be removed, retained and new planting, and front fencing (if any). Other aspects of impact to rear yard character and amenity of adjoining land, occupant amenity and promotion of energy efficiency, and overall and indirectly, the quality or standard of design, also remain to be assessed.

67. Hence, the fourth issue I turn to is the common driveway along the southern boundary and its visual impact. The driveway is to have a length of some 53.5 metres, a paved width of 6 metres by 6 metres at the entrance (meeting Council Wide Principle 20) and 3.5 metres for a central section (meeting Council Wide Principle 21(a)), and landscaped/planted area on either side of at least 0.8 metres in width (and wider adjacent Dwelling Nos. 2 and 3). The design has similarities to that provided for one rear dwelling at 13A Gordon Terrace (within the locality to the east), though it has double the width at the entrance to enable two vehicles to pass, and wider pavement width and very marginally less width for planting (0.8 metres compared to 0.85 metres as measured by Mr McBryde). The most relevant Development Plan provision for this issue is:

"COUNCIL WIDE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

13	No irregularly-shaped allotments having the main area of the allotment set-back from a road and connected to that road by a narrow strip of land should be created unless:

(a) the strip of land connecting the main area of the allotment is generally not less than five metres in width and should:

(i) where two or more dwellings may be developed on that allotment, be capable of providing suitable driveway access to the main area of the allotment in accordance with the relevant provisions of principle of development control numbered 19; and

(ii) provide landscaping opportunities to maintain the appearance of the strip of land in a manner which will maintain and enhance the character and amenity of the locality in which the land is situated; and

(iii) where circumstances justify portion of the strip of land being less than five metres in width, it should be not less than that width within six metres of the boundary of a public road for an allotment capable of containing one dwelling and where two or more dwellings may be developed on the land the width of that part of the strip of land shall be not less than seven metres; ....."

68. This provision applies to a land division development, that in all likelihood would follow approval to this proposal, but that is not certain nor whether it would be a Torrens Title or Community Title form. However, it is reasonable to consider, in the absence of any other relevant specific clauses in the Plan, noting that the proposal meets the numerical standards as referred to above and the guideline regarding landscaping refers to opportunities to maintain the appearance of the strip of land to maintain and enhance the character of the amenity of the locality. In addition, Zone Objective 1 seeks compatibility with existing development in terms of streetscape impact.

69. As pointed out by Mr McBryde, there are several instances of similar length driveways, some with less landscaping opportunities in the locality and with garaging visible at the end. 13A Gordon Terrace is an excellent example, conceded by Ms Bell, of what can be achieved with landscaping along a relatively narrow driveway. The extent of development adjoining to the south comprising several large, proximate outbuildings, is such that no negative visual impact will be caused to the amenity of those adjoining properties. Subject to appropriate planting/tree selection, I am satisfied with the design and likely appearance and degree of visual impact of the driveway and adjacent landscaping to the streetscape and to the broader locality.

70. The only tree selected, to be multiple planted, is a small to medium height (3 to 4 metres according to Mr McBryde or 6 metres according to Ms Bell), deciduous "Manchurian Pear". Three other shrubs were listed and they are satisfactory. However, I am uncertain as to the suitability of the tree selected, as was Ms Bell. I find that a slender, evergreen tree species with screening characteristics is required and this can be the subject of a condition of consent.

71. Completing consideration of streetscape impacts, the offer of further tree retention ("Prunus" and "Oleander") in the front garden is desirable and will assist with maintenance of the streetscape character and amenity. The same applies to retention of two rear, north side mature trees, for visual amenity reasons. These can be the subject of conditions of consent. The loss of the front, northern side "Lilly Pilly" tree is regrettable on amenity grounds, though I note that it was also sought to be removed by the adjoining resident (Exhibit R1 page 7), but I find that such removal is not fatal to the proposal.

72. As drawn to my attention by Ms Bell, I note that no front fence is proposed, though it could be the subject of a subsequent development application if sought by the proponent. Some boundary definition is desirable as preferred by Ms Bell (and this can be a condition of consent), though given the extreme variability of front fences, walls and hedges along Primrose Terrace (vide Exhibit A3), there is no justification to require one type or another.

73. I now turn to the issue of rear yard character and visual amenity impact to properties adjoining, raised by Ms Bell. Given the low profile, single storey building form, acceptable roof/wall colour and materials, rear buildings to be replaced by new buildings on the subject land, substantial screening by new retaining walls and fencing, benched-lowered floor levels for Dwelling 3 and the rear of Dwelling 1, and both retained mature trees to the rear north side boundary (in the rear yard of Dwelling 3), and boundary landscaping to the north and south, as well as the nature of buildings and gardens in the rear yards of adjoining development, I find that the proposal is acceptable and will maintain and enhance amenity and be compatible with the character of the locality as a whole. In addition, localised impacts will not be significant in the above circumstances.

74. Concerning the issue of the level of amenity to be afforded the occupants of the proposed dwellings, another issue raised by Ms Bell, the Development Plan guideline in this regard is contained in Council Wide Objective 11(c) which states:

"Objective 11: Residential development which:

.....

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

75. Ms Bell was somewhat critical of the design in terms of proximity of the common driveway and vehicle movement along it (with some noise and light impact) to bedrooms 1-3 of Dwelling 1, and bedrooms 1 and 2 of Dwelling 2. This issue is a question of degree of impact and I have carefully considered it. Separation distances (1-2 metres); level differences (Dwelling 1 set lower); and visual and acoustic shield fencing (1.8 metre Colorbond, which despite the views of the two town planning experts, both not qualified in the acoustic field, from my experience and as espoused generally by acoustic engineers, will be effective in reducing noise transmission), are proposed to mitigate movement impacts from the occupants of two dwellings (traffic movements generated by Dwelling Nos. 2 and 3) affecting Dwelling 1, and from one dwelling (traffic movements of Dwelling 3 affecting Dwelling 2).

76. During the hearing, I flagged the following possible minor amendments to both town planners, designed to reduce likely or perceived impacts. They are:

•	resiting the whole of Dwelling 1 and double garage, either to the boundary, 1.2 metres northward (or a lesser distance such as 0.6 metres), so that the garage is near to (or on) the common boundary with 16 Primrose Terrace as originally proposed; enabling a further 1.2 (or 0.6) metre separation from Dwelling 1 bedrooms to the driveway and allowing for further intervening screen planting; and
•	the protruding bay window of bedroom 1, Dwelling 2, being deleted and replaced with screen planting.

77. Such separation and features have not always been required by the Council (vide new redevelopment at 5 Ayr Street and 20-22 Park Avenue), and there is an element of buyer/occupier choice and acknowledgement of such impacts where common driveways are involved. I consider a 0.6 metre shift will be sufficient, as was originally proposed, and upon which basis informal neighbour consultation was undertaken. The amendments were supported by both town planning experts, though Ms Bell retained reservations regarding the former.

78. I therefore find that with the above amendments, the test in Objective 11(c), for occupants, is met and I find that it is not at issue with respect to neighbours.

79. Ms Bell was also somewhat critical of the visual outlook from three narrow windows to the meal/family room of Dwelling 3, to the east to a retaining wall and fence 1 metre distant. Given the primary orientation and window and door openings of that dwelling to the north, and the commonality of similar outlook from bedrooms or secondary rooms in many dwellings, I place no weight on this criticism and I find that Objective 11(c) is fully met.

80. Finally, I turn to another issue and criticism raised by Ms Bell, that of promotion of energy efficiency in design of dwellings. The relevant Development Plan guidelines are:

"COUNCIL WIDE

.....

Objective 11: Residential development which:

.....

(d) take advantage of solar energy. .....

PRINCIPLES OF DEVELOPMENT CONTROL

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112 Development should promote the efficient consumption of energy for lighting, heating, cooling and ventilation."

81. Ms Bell was keen to see the inclusion of eaves of some 600-700 mm in width, particularly to the north and west facing elevations of each dwelling. I have considered this view point, but am unable to find sufficient reason or Development Plan support for effectively mandating it. Principle 112 seeks to promote - without detailing - the efficiency consumption of energy. There are several ways this can be addressed and achieved and some are being mandated via the Building Rules Consent process and new building code requirements. The proposed design goes a reasonable way to achievement of Objective 11 and Principle 112 by:

•	north/south orientation of Dwelling Nos. 2 and 3, though Dwelling 1 faces Primrose Terrace (as the current dwelling also does);
•	generally north facing family/meals living areas with windows and openings to that direction;
•	verandahs (Dwelling Nos. 1 and 3) and porch/pergola (Dwelling 2) for shading purposes toward the north for each and for part of the eastern side for Dwelling 1;
•	retention of trees at the front to reduce low angle, late afternoon western sun in summer; and
•	minimal number or surface area of windows facing the west and east (Dwellings 2 and 3).

82. Hence, I find the view point and alleged deficiency in terms of Principle 112, to be insufficient to warrant either rejection of the proposal or a redesign and style change to add eaves (effectively to much, if not all of each dwelling).

83. Overall, I find that the proposal exhibits a sufficiently high standard of design in terms of its appearance (Council Wide Objective 28) and it is designed to achieve sufficient harmony with the conditions desired or indicated by the Objective and Principles of Development Control for the Residential R550 Zone as sought by Council Wide Principle 121. The development will be conducive to achievement of the Zone intent and desired character (City of Mitcham v Freckmann (1999) 74 SASR 234). It will also enhance the pleasantness of the residential zone and locality by replacing obsolete outbuildings and poorly maintained yards and it is well designed such that Metropolitan Objective 9 and paragraph thereunder, are also sufficiently met.

Conclusions

84. As with many, if not most building development proposals, there is some variance exhibited to the relevant individual Development Plan provisions, however integrating and weighing up all those considerations, and the ones where the town planning experts had differing views, and considering the Plan as a whole, as a fact and degree planning judgment, I find that the proposal sufficiently meets and accords.

85. Some further minor improvements and further amendments have arisen during the course of the Hearing, and they can be reasonably and appropriately incorporated.

86. I find that the issues and criticism raised by the Council, its counsel and Ms Bell, are mostly relatively minor, and do not carry sufficient weight to warrant rejection of this proposal. Some will result in amendment to the proposal and additional conditions of consent, and some resulted in amendment to the proposal plans now before the Court contained in Exhibit A1. On the submission of counsel for the appellant, I have also considered the approach and relevance of what the Court determined in Toyias & Ors v Alan Sheppard Homes Pty Ltd & Ors [1997] SASC 6160; (1997) 69 SASR 42. In this case, the facts and all of the circumstances speak clearly for themselves.

87. Accordingly, I conclude that conditional provisional development plan consent is warranted. With respect to conditions, and having regard to those recommended by Council's professional planning staff (Exhibit R1 page 14) and to the several matters or amendments arising out of the above assessment, I have prepared conditions that I consider are reasonable and relevant and should be attached to the consent.

Decision

88. The decision of the Court is that the appeal is upheld and the decision of the respondent Council reversed. Provisional development plan consent is to be granted subject to the following conditions:

1.	The proposal shall be developed in accordance with the details of the Development Application 180/00870/02/CA and the amended plans prepared by Aspex Building Designers Pty Ltd dated 13 December 2002, contained in Exhibit A1, except where varied by the following conditions.
2.	The bench levels shown on the approved plans Exhibit A1, are to be verified by a licensed surveyor, and prior to the pouring of concrete, a certified plan illustrating these levels is to be provided to Council (any variation to the approved levels must be approved in writing, by the Council prior to the pouring of concrete).
3.	A more detailed landscaping plan specifying all areas to be landscaped, species to be used, maturity at time of planting and mature height, shall be submitted to and approved by the Council prior to the issue of development approval.
4.	The establishment of all landscaping and planting of vegetation shown on the plans shall be completed prior to the occupation or use of the development herein approved, and shall be maintained in good health thereafter, or replaced if any plants become diseased or die.
5.	The two existing trees located at the front of the site, shown as being retained on the plans in Exhibit A1, as well as the "Prunus" and "Oleander" trees at the front northern side and the "Lilly Pilly" and "Sycamore" trees at the rear northern side, shall be retained and maintained in good condition at all times to the reasonable satisfaction of Council. Should they die or become diseased they shall be replaced to the reasonable satisfaction of the Council.
6.	An appropriate form of temporary fencing shall be erected around the base of the trees to be retained to protect them. The type of fencing and its distance from the base of the trees shall be determined by the Council's Tree Preservation Officer prior to any work being commenced on site and such fencing shall remain in place for the full period of the construction work.
7.	No equipment or debris or building rubble is to be discarded or stored within 2 metres of the base of the trees to be retained for the full period of construction work.
8.	Soil levels and land form surrounding the trees to be retained and within a distance of 2 metres, shall not be altered in any way and all reasonable attempts shall be made to avoid compaction of the soil within the root zone and drip line of the canopies of the trees, for the full period of construction work.
9.	For any work under or in close proximity to the canopy of the trees to be retained, all due care shall be taken to avoid damage to the canopy or to the branch structure for the full period of construction work.
10.	No underground services shall be located within 2 metres of the base of the trees to be retained, except with the express permission and written approval of the Council's Tree Preservation Officer.
11.	All driveway areas for vehicle movement shall be paved with materials, and shall have drainage and design specification to the reasonable satisfaction of the Council having regard to relevant Australian Standards, and be maintained in sound condition thereafter. (Separate approval of the Council to the detailed design - in the locations shown - of the new/modified access crossovers is required.)
12.	The bay window of bedroom 1, Dwelling 2, shall be deleted and replaced with a conventional window matching those for bedroom 1 of Dwelling Nos. 1 and 3.
13.	Dwelling 1 and garaging shall be relocated 0.6 metres to the north, with the garaging located 0.6 metres from the side boundary, and the additional width obtained on the southern side of Dwelling 1 shall be devoted to landscaping on the site of Dwelling 1, either wholly or partly on the southern or northern side of a proposed 1.8 metre high, internal privacy fence.
14.	Where not indicated on the plan in Exhibit A1, fencing to both side boundaries and internal site divisions shall be of 1.8 metre high Colorbond (colour to both sides), and delineation of the front boundary (excluding driveway crossovers), shall comprise a defining boundary element of at least 150 mm in height, except that if it is of solid materials and over 1 metre in height, or any fence over 2 metres in height, it shall require additional development approval of the Council. The erection of all fencing is to be the responsibility of the person(s) or company making use of this consent.
15.	Temporary fencing, adequate to retain pets, shall be installed by the developer to all boundaries where existing fencing is removed and prior to new boundary walls/fences being erected.

89. There will be an order accordingly.