Heaney v City of Burnside No ERD-02-639 [2003] SAERDC 29 (23 April 2003)

Last Updated: 27 April 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

13/02/2003 to 14/02/2003, 28/03/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - applicant appeal - refusal by the Council - erection of two detached dwellings, one part two-storey - Residential R625 Zone - issue of dwelling density/site area per dwelling considered in relation to zone provisions and Council Wide Principles 27 and 28, and location and locality features - found to be low density and acceptable - impact on character and amenity of locality, streetscape impact, privacy loss, design issues such as access and manoeuvring, conservation and protective measures for a "significant tree", change to land form and stormwater all considered and found to be potentially acceptable - amended proposal submitted to address certain deficiencies - proposal sufficiently accords with Development Plan - appeal upheld and decision of the Council reversed based on amended proposal - conditional provisional development plan consent to issue.

• Development Act 1993 , referred to.
• Toyias & Ors v Alan Sheppard Homes Pty Ltd & Ors [1997] SASC 6160; (1997) 69 SASR 42;
• Bolto v City of Charles Sturt [2003] SAERDC 18, considered.

Representation

Appellant: NA HEANEY & JF HEANEY
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

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

ERD-02-639

Judgment No. [2003] SAERDC 29

23 April 2003

NA HEANEY & JF HEANEY

v

CITY OF BURNSIDE

ERDC 639 of 2002

[2003] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an applicant appeal against the decision of the City of Burnside ("the Council"), to refuse Development Application No. 180/00133/02/CA, for the demolition of a detached dwelling and erection of two detached dwellings at Stonyfell. The Council gave as its reasons for refusal:

"1. Dwelling 2 has insufficient site area, street set-back and side set-back.

2.	Dwelling 1 has insufficient rear set-back.
3.	The proposal results in significant tree damaging activity where it could be avoided through a more appropriate design.
4.	Safe and convenient access to the proposed dwellings is not provided."

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

Date of application: 14 February 2002 (registered)

Subject land address: 14 Allendale Grove, Stonyfell

Existing use: Detached dwelling with associated garaging/ outbuilding

Proposal: Two detached dwellings with ancillary garaging, landscaping and fencing

Relevant authority: City of Burnside

Appropriate

Development Plan: Burnside (City) consolidated version 20 September 2001

Relevant area/zone: Residential R625 Zone (MAP Bur/5)

Date of decision: 6 August 2002

Appeal lodged: 8 October 2002

3. Sworn evidence was given by four experts, Mr J Smith and Ms J Lewis MPIA, both qualified and experienced town planners, by Mr F Siow, a qualified and experienced traffic engineer and by Mr J Whitehill, an experienced arboricultural and horticultural adviser.

4. The Court viewed the subject land and the locality on 13 February 2003, in the presence of the parties and it received and considered a range of exhibits.

The Subject Land

5. The subject land is contained within Certificate of Title Volume 5219 Folio 980, it is an irregular rectangular shaped allotment with frontage of approximately 14.43 metres to Allendale Grove, a depth of approximately 68.58 metres along the south-eastern boundary, a rear (south-west) boundary of 19.8 metres and frontage of approximately 69.9 metres to an unnamed public road along the north-western boundary. The site has an area according to Mr Smith of approximately 1,138 square metres. The land is affected by an easement in favour of the Minister for Infrastructure, of 3 metres in width and located across the middle of the allotment at approximately 40.2 - 43.9 metres from the Allendale Grove frontage.

6. Relying on the site plan (Exhibit A1), the land has a cross-fall from the east side Allendale Grove frontage to the west side corner with the unnamed public road, of approximately 5.5 metres providing an overall slope in the order of 1:12.

7. The subject land contains a two-storey detached dwelling and associated garaging/outbuildings of average condition and of a relatively unattractive appearance. Vehicle access is obtained from Allendale Grove on the western side of the allotment and from a second undefined access from the unnamed public road. This road reserve is approximately 3.45 metres in width and also provides sole vehicular access to 12 Allendale Grove to the north-west and additional rear access to 10 Allendale Grove to the west.

8. There are several mature trees on the allotment, including one "significant tree" (Eucalyptus leucoxylon - SA Blue Gum) in the rear yard. It also has a row of four slender "Cyprus" pines.

The Proposal

9. The proposal depicted on Exhibit A1 is to replace the existing buildings with two, detached dwellings, one entirely of single storey (Dwelling 1 to the north) and the other, part single and part two-storey (Dwelling 2 to the south), both incorporating double garaging directly accessible from the unnamed public road. An on-site visitor car space is proposed for each dwelling immediately to the north of the double garages, with a paved depth of 8 metres and 8.5 metres respectively, together with reversing width on the road reserve of some 3.45 metres.

10. Each dwelling is orientated to the unmade public road and not Allendale Grove, with the side view of the garage for Dwelling 1 facing Allendale Grove, and each is to have an exclusive site. Dwelling 1 is to be setback 9.6 metres to Allendale Grove and 3 metres to the unnamed side road and setback some 2.5 and approximately 4 metres to the other side boundaries. Dwelling 2 is proposed to be setback 3 metres to the unnamed side road and 1.5 metres to the southern boundary (to the two-storey building element), but when adjusted for correct easement location, this setback reduces to 1.05 metres. It is also to be setback some 2.7 and 4.1 metres (to become 4.5 metres) from the other side boundaries.

11. Proposed Dwelling 1 has a frontage of 14.4 metres to Allendale Grove and 42 metres to the unmade public road and a site area of 628 square metres. Proposed Dwelling 2 has a frontage of some 27 metres to the unmade public road and a site area of some 510 square metres (according to Mr Smith). In regard to respective ground floor areas, Dwelling 1 is provided with 198.18 square metres and Dwelling 2 with 177 square metres providing a site coverage of roofed areas of 31.5% (Dwelling 1) and 34.7% (Dwelling 2). When buildings and driveways are included they provide coverage respectively of 39 and 46.6%, and the plot ratio for Dwelling 2 (including the two-storey floor level) is 0.468.

12. Private outdoor living space satisfying the preferred criteria/dimension are 105 square metres and 192.5 square metres respectively, both exceeding 50% of the respective dwelling floor areas.

13. Retaining walls are proposed along the south-eastern boundary of both dwelling sites and along the common boundary between Dwellings 1 and 2. A 1.5 metre retaining wall is proposed on the south-western boundary of Dwelling 2 and a 1.8 metre high Colorbond fence is proposed on top of this and other walls. This results in a fence height on the south-west boundary of Dwelling 2 of approximately 3 metres above the ground level of the adjoining property. The wall/fence height between Dwellings 1 and 2 will be between approximately 2 and 4 metres as measured from the assumed ground level of Dwelling 2 and it tapers toward the unnamed public road.

14. The finished floor level of Dwelling 1 is proposed for 97.8 (and 97.45 for the garage), about 1.5 metres below the Allendale Grove kerb level and the finished floor level of Dwelling 2 is proposed at 95.5 (and 95.05 for the garage), about 0.5 metres - 2 metres above adjoining levels on the unnamed road reserve. Relative to each other they are stepped down the slope with a moderate degree of cut and fill in each case.

15. Front garden landscaping to Allendale Grove (together with retained trees) and to the unmade public road frontage, is to comprise a selection of low-medium size shrubs and ground covers as specified.

16. The rear of Dwelling 2 is to be located in the vicinity of a "significant tree" as referred to above. It will come within 4.5-5.5 metres of it and with a deck proposed adjacent. The tree has a canopy of some 10-11 metres in radius but at a considerable height above ground level.

17. The floor level of Dwelling 2 has been determined based on the need to minimise disturbance of the natural surface beneath the tree canopy. It is proposed to install piered footings adjacent the tree root zone, from which a floor slab will be suspended above a portion of the tree root zone. This is detailed in a sketch marked Exhibit A4. Major disturbance to the natural surface will occur at a distance of 5 metres in a corner of the double garage of Dwelling 2 - perhaps an area of 6 square metres within an 8 metre distance from the trunk.

18. The appellant proposes to seek Council approval to pave the unnamed public road from the southern extent of the bitumen for a distance of perhaps 35-40 metres to coincide with the front of Dwelling 2, and to allow vehicle reversing from garaging of that dwelling.

The Locality

19. In determining the extent of the locality, in this case to be based on visual and perception of character basis, I have had regard to those defined by both planners, and conclude that it should be more than the 50 metres distance espoused by Mr Smith and somewhat less than that of Ms Lewis, particularly to the west and south-east. I define the locality to comprise the front portions of Nos. 17-29 Allendale Grove and of Nos. 9-11 Myrtlebank Terrace, the east side and rear of Nos. 8-8B, all of Nos. 10-14 and the front of Nos. 18-28 Allendale Grove, and the rear of No. 7, all of Nos. 9-13 and the rear side of 15 Fernbank Terrace.

20. Land use is entirely residential, mostly of detached dwellings and with one cluster of five group dwellings (with dwellings facing inward and not toward the street) and two semi-detached dwellings, mostly of two-storey or part two-storey/split level, and of a range of semi-modern (or replica) architectural styles. Site areas per dwelling range from over 3,000 square metres in one instance (a combined site at 22 Allendale Grove), many are in the 1,000-1,600 square metre range, many are in the 600-800 square metre range and the following are of less than 600 square metres - 8 and 8A Allendale Grove (464 square metres); 17 Allendale Grove (approximately 560 square metres); 19 Allendale Grove (approximately 595 square metres) and the group dwellings at 18 Allendale Grove (average site area of approximately 544 square metres). Site frontages also vary considerably from 9 metres for each of the semi-detached dwellings on the perimeter of the locality at 8 and 8A Allendale Grove, to several in the 14-20 metre range and a few (excluding corner sites) greater than that width, particularly where dwellings straddle two allotments.

21. Land in the locality is generally sloping, in some places at 1:8 and scattered throughout are numerous remnant (mostly) Eucalypt trees, with many large attractive "exotic" garden settings to substantial dwellings. Front fencing is either low or minimal, with a few exceptions, but there are several large 1.8-2.4 metre high side fences/walls.

22. The majority of public roads, in and adjacent the locality, are of conventional (for residential streets) width and standard, and are sealed/kerbed/drained together with various public utilities and trees alongside. However, significant to this matter, there is an unnamed public road of approximately 3.45 metres in width only (Exhibit R1 page 3 and Exhibit A2), adjoining the whole of the north-western boundary of the subject land connecting between Allendale Grove and Fernbank Terrace to the south. It is sealed to its full width from Allendale Grove for about 25 metres to the south and provides sole access to 12 Allendale Grove with garaging and manoeuvring areas for some four vehicles, and this appears to have been the case for many years. Thereafter for about 15-20 metres, it has a gravelled surface for its full width and provides additional/alternative access to the rear of the subject land and the rear of 10 Allendale Grove and thereafter it diminishes to being a very narrow, and on the evidence, infrequently used pedestrian path amongst remnant and exotic trees, crossing a small drainage channel south of the subject land and connecting through to Fernbank Terrace. The pathway and road reserve passes very close to the dwelling at 9 Fernbank Terrace. It appears that it was originally a right-of-way, but that is now of historical note only.

23. The character of the locality is one of a relatively "low density" residential area on sloping terrain and in a very well vegetated setting.

24. The all sensory amenity levels are very high, with few negative characteristics, excepting the style, condition and appearance of the dwelling and outbuildings on the subject land.

Relevant Development Plan Provisions

25. 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 Burnside (City) Development Plan, consolidated version 20 September 2001.

METROPOLITAN ADELAIDE

Objectives: 1, 6, 8, 9, 23, 24, 30 and 42; and

Principles of development control: 3, 4, 8, 9, 10, 11, 13, 14, 15 and 16.

COUNCIL WIDE

Objectives: 2, 3, 5, 11, 16, 17, 23, 28 and 32; and

Principles of development control: 1, 2, 3, 8, 9, 15, 19, 20, 21, 23, 24, 26, 27, 28, 29, 30, 31, 56, 57, 59, 61, 64, 66, 68, 72, 73, 74, 102, 103, 106, 112, 114, 115, 116, 117, 121, 124, 138, 139, 140, 141 and 142.

RESIDENTIAL R625 ZONE

Objective: 1; and

Principles of development control: 1, 2, 3, 6, 7, 8, and 9.

The Evidence

26. Mr Siow was not supportive of access/manoeuvring aspects of the proposal, however he retained fewer reservations in oral evidence on learning that amendments in the form of Exhibit A5 with regard to garaging levels and that the proponent proposed to pave the necessary areas of the unnamed public road and on the basis that the driveway entries to each garage/visitor car space could be splayed on the sides. He maintained reservations with regard to the possibility of multi-point turning of visitor cars should visitor spaces be taken or the possibility of vehicles reversing out of the driveway across the road verge onto Allendale Grove, and the safety risks that may arise.

27. Mr Whitehill was initially not supportive of the proximity of proposed Dwelling 2 to the "significant tree" and the potential for "tree damaging activity" comprising root cutting, but in oral evidence, based on the detail in Exhibit A4, felt that the proposal and amended levels were acceptable and the best alternate design solution to conserve the tree and that minor trimming required to branches of the tree to facilitate Dwelling 2 would be acceptable.

28. Ms Lewis was not supportive of the proposal, particularly concerning dwelling density (site area of Dwelling 2 at 510 square metres), impacts on character and amenity of the locality and on potential impacts to the "significant tree", and concerns about the safety and convenience of access provisions and with the setbacks of both proposed dwellings from the unnamed public road and of Dwelling 2 from the southern boundary.

29. Mr Smith on the other hand was supportive of the proposal, though qualified with regard to overlooking and landscaping about the proposed Dwelling 2 site and he found a high level of consistency with the Development Plan, appropriate measures to protect and conserve the "significant tree" and acceptability with regard to access and manoeuvring arrangements.

Planning Assessment

30. 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.

31. Firstly, with regard in-principle, to the use and development of two detached dwellings, one part two-storey, and of the dwelling density proposed. The residential use, detached dwelling type and number of storeys (both single and part two-storey), are entirely appropriate to the Residential R625 Zone and to the locality. Nor is there any concern or issue about the suitability of the land including its slope, for the proposed use and development.

32. The key provisions providing guidance with respect to dwelling density are as follows:

"RESIDENTIAL R625 ZONE

.....

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

PRINCIPLES OF DEVELOPMENT CONTROL

1	Any site for the accommodation of a detached dwelling should have an area of no less than 625 square metres and a frontage of no less than 15 metres.
2	Any site for the accommodation of a semi-detached dwelling should have an area of no less than 425 square metres and a frontage of no less than nine metres.
3	Any allotment for the development of a residential flat building or group dwellings should have:
(a)	a site area of no less than 500 square metres for each dwelling; and
(b)	a frontage of no less than 20 metres.

.....

COUNCIL WIDE

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

18	Dwellings containing two storeys at medium densities should be:
(a)	located:
(i)	along major roads and public transport routes;

(ii) adjacent centres and commercial areas;

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

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

(b)	design in a manner which:
(i)	contributes positively to the streetscape and the locality in which the land is situated; and

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

.....

27 Where a development comprising two or more detached dwellings would, but for the circumstances of the site of the development (such as corner allotments or allotments with extensive road frontages), ordinarily be defined as a group dwelling, the site area provided for each dwelling may be that prescribed for a group dwelling.

28 The development of detached dwellings on corner allotments may be undertaken on sites of an area prescribed for a semi-detached dwelling in the zone in which the land is situated where:

(a)	the resulting development would contribute positively to the streetscape; and
(b)	the development complies in all other respects with the relevant principles of development control applicable to detached dwellings."

33. Objective 1 does not provide direct guidance to dwelling density (i.e. site area per dwelling or number of dwellings per hectare), and that is the only objective for the Zone. The proposal meets Zone Principle 1, in terms of frontage, but not in terms of site area and the Zone name would suggest that only a dwelling density of 625 square metres per dwelling is envisaged. However, Principles 27 and 28 are highly relevant in conjunction with Zone Principles 2 and 3, though the latter are mainly used for differing dwelling types. Gleaning the desired character sought for development in the Residential R625 Zone, a range of dwelling types and respective dwelling densities are clearly envisaged by the Principles with allowance made for the development of corner allotments (e.g. the subject land), by detached dwellings at the lesser densities usually applicable to semi-detached or group dwelling types. Namely site areas of, in this case, 425 or 500 square metres rather than 625 square metres. No dwelling type or dwelling density is listed as non-complying in Zone Principle 9, and nor are there any "baseline" guidelines applicable to "complying" development as there is no such development listed in this Zone. Hence, at face value, the dwelling density proposed (site area of approximately 628 and 510 square metres respectively for Dwellings 1 and 2, or an average of 569 square metres), might be acceptable subject to other further considerations, including contribution to streetscape and character and impact on amenity.

34. Notwithstanding the above, I have had regard to Toyias & Ors v Alan Sheppard Homes Pty Ltd & Ors [1997] SASC 6160; (1997) 69 SASR 42, whereby it was also found necessary to consider the suitability of the locality in terms of adverse impact on character and amenity of the locality in determining the acceptability of dwelling type or density proposed. I consider that the various residential zones in the Burnside Development Plan, with significantly differing dwelling density guidelines (with the range set out in the Zones running from Residential R350 through to Residential R750 Zone) and their geographic locations, to generally set out the locations where increased density might be appropriate in terms of Council Objective 11(b), but I acknowledge that in implementing Metropolitan Adelaide Objective 6, regard is to be given to Council Wide Objective 5. These provisions are as follows:

"METROPOLITAN ADELAIDE

.....

OBJECTIVES

.....

Objective 6: A compact metropolitan area.

This objective may be achieved through selective development of infill housing, redevelopment and refurbishment of existing housing, and use of vacant and underutilized land, with the aim of reducing the social, environmental and economic costs of urban development, and maximizing use of the community investment in facilities and services in existing housing areas. 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.

......

COUNCIL WIDE

.....

OBJECTIVES

.....

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

.....

Objective 11: Residential development which:

(a)	promotes the efficient use of urban infrastructure and services;
(b)	increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council area;
(c)	provides dwellings of a high standard of design and siting to ensure a high level of amenity, privacy and security for their occupants and neighbours;
(d)	take advantage of solar energy; and
(e)	promotes and retains community identity."

35. The subject land is unique. It is long and narrow, of relatively large area for a single dwelling, is a corner site to a public road (enabling design efficiencies), has existing buildings detracting from visual amenity and which should preferably be redeveloped, and has to date, significant rear underutilized land.

36. Having regard to the mixed dwelling density in the locality, the unique nature of the site and the general character of the locality, as well as Zone Principles 1-3 and Council Wide Principles 27 and 28, my assessment is that the dwelling density proposed is acceptable.

37. I also determine that it is at a relatively low density and not medium density, having regard to the range of criteria outlined in Bolto v City of Charles Sturt [2003] SAERDC 18, and that found across the Burnside and Metropolitan Adelaide areas, and therefore that Council Wide Principle 18 is not especially relevant.

38. Design considerations and impacts on amenity (as directed to be considered by Objective 11(c)), are discussed hereafter, but the mere fact of an additional detached dwelling on the subject allotment of the same type, general form and scale as others predominating in the locality, will not detrimentally affect amenity in any significant way. Subject to design, it could have much less impact than one, exceedingly large dwelling, as is developed in this Council area on a frequent basis and as exists on some other allotments in the locality.

39. Secondly, turning to an assessment of visual amenity and visual privacy (avoidance or minimising of overlooking), the key guidelines are as follow:

"METROPOLITAN ADELAIDE

....

Objective 9: Safe, pleasant, convenient and efficient residential zones.

Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight.

.....

Objective 42: The amenity of localities not impaired by the appearance of land, buildings and objects.

.....

The design of individual buildings should be of high standard and related to adjacent buildings.

.....

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.

10	Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:
(a)	for adjacent properties; and
(b)	for each dwelling and private open space.

11	Landscaping of development in residential zones should:
(a)	enhance residential amenity;

.....

COUNCIL WIDE

.....

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

.....

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;

.....

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

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

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

.....

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

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

.....

(d) where no predominant building set-back distance is established in the locality in which the building is situated:

(i) be compatible with the land form and the nature of the locality generally; and

(ii) be increased beyond the minimum distance prescribed in this principle of development control in accordance with the height, width or bulk of buildings on the site and their impact on the streetscape, should this be necessary; and

(iii) minimize any adverse impact on the streetscape, particularly where the building is situated on the high side of a road; and

(e) not in general be less than:

(i) three metres in the Residential R350 Zone;

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

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

.....

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

(a)	large blank walls facing a street;

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

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

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

.....

116 Development should take place in a manner which is not liable to cause a nuisance, including nuisance to the community by:

.....

(c) loss of residential privacy.

.....

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

(a) height;

(b) size;

(c) scale;

(d) colour;

(e) form;

(f) siting;

(g) architectural style; and

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

.....

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

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

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

(c) not well screened from view by vegetation, land form or other buildings,

should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as to minimize the visual prominence of the building when developed.

.....

RESIDENTIAL R625 ZONE

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

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:

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

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

(c) in no circumstances:

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

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

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

......

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

(a) overshadowing;

(b) overlooking;

(c) loss of privacy; and

(d) undue enclosure of private open space,

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

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

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

40. The key aspects worthy of closer assessment are setbacks to boundaries and the opportunities or extent of overlooking of private rear yards of adjoining dwellings to the south and of adjacent dwellings to the south-west and west (i.e. rear of Nos. 9 and 13 Fernbank Terrace and rear of 10 Allendale Grove), from both the ground and upper floor levels of Dwelling 2. All of the other criteria listed above are either clearly or sufficiently met.

41. In terms of the former, proposed Dwelling 1 and its garaging are single storey, sited well below road level, and setback over 9.5 metres from the primary road frontage (Allendale Grove). This meets the guidelines, retains existing trees and enables further garden landscaping and is acceptable. Despite its "side-on" orientation and integrated garaging "presenting" to Allendale Grove, I assess this to be acceptable given the above factors and the windows provided to the side garage wall and its likely unobtrusiveness. Dwelling 1 is also to be sited at its closest, 3 metres to the side unnamed public road and 4.5 metres to the garage. This area, excluding driveways to the visitor car space and garaging (presumed to be paved), is to be landscaped with mounding and on the oral evidence, rocks, ground cover and shrubs to perhaps 1.5 metres in height. On the secondary frontage, with minimal public use of that road, and together with spacing from the east side and internal south side boundaries, I conclude that this is acceptable from a visual and streetscape perspective. The latter will be enhanced from what exists at present.

42. The siting and setback of Dwelling 2 (with substantial 9 metre by 7.5 metre part two-storey element) is 3 metres to the unnamed public road and 1.5 metres (but necessarily reduced to 1.05 metres, due to the erroneous positioning of the easement on Exhibit A1), on the southern boundary for the two-storey (6-8 metre high element), and 3-4.5 metres to the eastern side and internal side boundary. The deficiency in setback particularly of the two-storey element, against the numeric guidelines of 8 metres to the road boundary and 4 metres to the side boundary (as the floor level is greater than 1.5 metres above ground level, referring to Zone Principle 7(ii)), means there is minimal space for landscaping and tree screening. The latter is required to assist in reducing and softening the elevated and somewhat dominating appearance of the two-storey element from the rear yards of surrounding dwellings (Nos. 9-13 Fernbank Terrace and Nos. 10-12 Allendale Grove) and to assist in reducing and minimising overlooking from both the ground level Verandah and Living Room (toward the rear of 10 Allendale Grove and 9 Fernbank Terrace) and from upper level Bedroom 2 and Bedroom 3 windows in the same direction. Either several slender, tall, dense, evergreen or fewer bushier trees to a height of at least 8 metres are considered to be required. The setback guideline could and should be achieved in the north-south direction generally, by reducing garaging from double to single garage or shortening the length of the dwelling. The setback guideline to the road is unachievable and in any event, given the nature and lack of prominence of the particular unmade and unnamed public road, this is not found to be fatal if visual and privacy impacts are adequately addressed.

43. With regard to minimising overlooking from upper levels and Bedroom 2, high sills 1.6 metres from floor level could be introduced, or alternatively and more desirable, those windows on the western wall could be deleted and relocated to the northern and southern walls of that room. Bedroom 3 would also require a high sill to 1.6 metres. High sills are considered more appropriate in these circumstances than opaque glazing as that solution is more liable to abuse/change over time. A higher sill is appropriately proposed to the Study and opaque glazing to the stairwell and similar opaque glazing is likely to be provided to the Bathroom.

44. The overall height and bulk of Dwelling 2 could be further appropriately reduced by reducing the upper level floor to ceiling height from 2.55 to 2.4 metres, and by lowering all of the ground finished floor level by 0.4 metres to 95.05 level (not just for the garage as per Exhibit A5). This would also reduce the height of the required southern retaining wall to a little over 1 metre with a 1.8 metre fence on top. However, it may also mean a small section of the deck near to the trunk and ground level around the "significant tree", needs to be reduced. In my view, this would not affect the adequacy or functionality of private outdoor living space.

45. If all of these minor amendments were to be made, with the significant tree being conserved and protected (refer below), I am satisfied that amenity, built form character and privacy will be preserved to an acceptable level in this locality with sloping land, mostly low (1.5 metres) or negligible side/rear fencing and a degree of overlooking occurring, despite scattered tree cover.

46. There are three other important considerations. Firstly, adequacy of access, visitor parking and manoeuvring from car spaces. The proponent offered to pave the balance of the unnamed public road in a southerly direction for about 35-40 metres, to the end of the area required for vehicle reversing from the garage of Dwelling 2. If provisional development plan consent is granted this would need to be designed and implemented to the Council's satisfaction and a carefully worded condition attached thereto. An amendment was also made to reduce the garage and adjoining visitor car space levels for Dwelling 1 by 0.35 metres to 97.45 FFL (and 97.4 outside) and for Dwelling 2 by 0.4 metres to 95.05 FFL (and 95.00 outside adjacent). On this basis, Mr Siow was satisfied with levels for turning in and out of the garaging and visitor spaces, and he agreed that splaying the nearest (northern) entry corner and the furthest (southern) corner would assist manoeuvring. His remaining reservation related to the prospect of the situation for Dwelling 2 with garage doors closed and the visitor parking space full, whereby a further visitor vehicle driving down the narrow road, would either have difficulty turning around (utilising a multi-point turn), in the remaining paved areas (4.5 metres in length in front of the garage and 3.45 metres in the roadway giving a total of 7.95 metres), or create a risk to pedestrians who may be on the Allendale Grove verge area, from the "blind" reversing of such vehicle out onto Allendale Grove. I note his concerns and agree that they may occasionally occur, but I am of the opinion that the risk to safety is relatively low and very similar to conventional reversing out of the majority of driveways to detached dwellings in metropolitan and hills residential areas, though I acknowledge some nuisance to vehicle access for the occupants of 12 Allendale Grove. Clearly, some visitors will also park on Allendale Grove, south-east of the solid centre line, and walk to the entrance of either dwelling. I conclude that the relevant Development Plan provisions in this regard are sufficiently met, with the amendment to levels, paving of the road and splaying of corner to driveways.

47. Secondly, with regard to protection to the "significant tree" - Eucalyptus leucoxylon - an SA Blue Gum, the amended proposal plan Exhibit A1 represents an alternative design solution (from a single storey dwelling with large coverage and near proximity to the tree, considered by the Council, to a part two-storey, lower coverage and greater setbacks to the tree), having regard to the criteria in Council Wide Principle 141(b)(vi). Detail in Exhibit A4 clarifies the proposed footings, decking and groundwater soakage concept around the root zone to minimise impact on it. Only about 6 square metres in the area of the garage for Dwelling 2, to a depth of about 0.5 metres, would cut into the outer perimeter of the root zone. Whilst the canopy of the tree will overhang (perhaps 50% or more of the Dwelling 2 and garage, not entirely meeting Council Wide Principle 24), Mr Whitehill found the design solution to be acceptable and the best in the circumstances, and that in addition to some minor trimming to lower branches, concluded that the "significant tree" would be sufficiently conserved and protected. On the basis of this technical evidence, and my observation and assessment, I find that the relevant Development Plan provisions on this issue are sufficiently met.

48. Thirdly, the proposed dwellings result in some cut and fill to the landform by the siting of each dwelling and they also require additional stormwater drainage collection and disposal solutions. For Dwelling 1 and adjacent levelled spaces, the cut will be about 1 metre in the eastern corner and with filling to about 2 metres in the south-west corner is required. Drainage is collected within that site and is proposed to be discharged to the unnamed public road. Similarly, for Dwelling 2 land form cut to about 1 metre in the eastern corner of the garage and filling to perhaps 1.2 metres (if the ground finished floor level is lowered to 95.05 as referred to above) on the south-western corner would arise, and again drainage is shown to be collected internally then piped to the unnamed and in this part, unmade road reserve. These aspects of the proposal change landform, but not to an unacceptable or significant extent, and stormwater drainage disposal to the Council's satisfaction would be an appropriate condition of consent, given its ownership of the land and the fall of the land to the south to the minor drainage channel.

49. I intimated to the parties by way of memorandum dated 23 February 2003, that subject to the appellant making further amendments along certain lines, the Court was inclined to uphold the appeal and grant provisional development plan consent subject to relevant conditions. At the resumed Hearing on 28 March 2003, further amended plans were received, marked Exhibit A6 and submissions made regarding conditions of consent, being largely agreed between the parties.

50. The amendments generally comprised:

•	dwelling 2 redesigned:
-	to achieve a setback of 1.5 metres at ground floor level and 4.2 metres at upper floor level from the southern boundary;
-	to have reduced finished floor levels and a lowering of the rear (southern) retaining wall;
-	so that its upper floor to ceiling height is reduced to 2.4 metres; and
-	so that upper level windows have window sills 1.6 metres above finished floor level;
•	greater landscaping detail, including medium to tall trees with spacing and characteristics to achieve greater screening and visual privacy;
•	internal driveways being splayed on both entry and exit sides to improve manoeuvring; and
•	variations to detail and levels for the retaining wall between the sites of dwellings 1 and 2.

Conclusions

51. On consideration of the further amendments contained in plans marked Exhibit A6, which do not change the essential nature of the proposal, and with the attachment of conditions of consent, I conclude that the proposal (including its dwelling density, general siting, bulk and appearance, parking and manoeuvring arrangements, and retention and protection of a significant tree) is, on balance, acceptable and sufficiently complying with the Development Plan as a whole and in the locality context. Overall design and likely impacts to amenity and character will be sufficiently consistent with the locality and the development conducive to achievement of the overall desired character for the Residential R625 Zone, as I can best glean from all of its provisions.

Decision

52. The decision of the Court is that conditional provisional development plan consent is granted to the amended proposal (Exhibit A6) subject to the following conditions:

1.

The proposal shall be developed in accordance with the details of Development Application No. 180/00133/02/CA and the approved plans, drawing numbers 3055.03.1A and 3055.01.2 prepared by MC Noble Building Designers dated January 2003 and April 2002 respectively and marked Exhibit A6 and the plans marked Exhibit A7 except where varied by the following conditions.

2.

All bench levels shall be shown on a plan certified by a licensed surveyor, which must be approved by Council in writing prior to the issue of Provisional Building Rules Consent and Development Approval. Any variation to the approved levels must be approved in writing by Council prior to the pouring of concrete.

3.	The "existing common access road" shall be hard surfaced and drained to an engineering standard which meets the reasonable satisfaction of Council for a distance of 40 metres from the boundary of Allendale Grove prior to occupation of either of the dwellings approved herein.

4.	Site drainage details are to be submitted to the satisfaction of Council prior to Development Approval being granted.

5.

The establishment of all landscaping shown on the approved plans shall be completed prior to the occupation or use of the development herein approved. Such vegetation shall be maintained in good health and condition at all times to the reasonable satisfaction of Council. Any dead or diseased plants or trees shall be replaced to the reasonable satisfaction of Council.

6.

The existing trees on site indicated as being retained on the approved plans, including the "Cyprus" Pencil Pine adjacent Dwelling 1 garaging and the SA Blue Gum as depicted on the plan marked Exhibit A6, shall be retained and maintained in good condition at all times to the reasonable satisfaction of Council. Any dead or diseased plants or trees shall be replaced to the reasonable satisfaction of the Council.

7.

An appropriate form of temporary fencing shall be erected around the base of the trees identified for retention on the approved plans. The type of fencing and its distance from the base of the tree(s), shall be determined by 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 construction work.

8.	No equipment, debris, building rubble or material shall be discarded or stored within 4 metres of the base of the trees identified for retention on the approved plans for the full period of construction work or within any area of the temporary fencing.

9.

Existing soil levels within the drip line of the canopy of the trees identified for the retention on the approved plans shall not be altered in any way, and all reasonable attempts shall be made to avoid compaction of the soil within the drip line of the identified trees canopy for the full period of construction work.

10.	For any work being undertaken within the drip line of the canopy of the tree(s) identified for retention on the approved plans, all due care shall be taken to avoid damage to the canopy or to the branch structure for the full period of construction work.

11.	No underground services including stormwater pipes shall be located within 4 metres of the base of the trees identified for retention on the approved plans.

12.	Sills to a height of 1.6 metres above finished floor level shall be provided to the windows of Bedroom 2 and Bedroom 3 on the first floor of Dwelling 2.
13.	Obscure glazing to a height of 1.6 metres above finished floor level shall be permanently installed in the bathroom window on the first floor of Dwelling 2 and shall be installed to an equivalent height in the stairwell window of Dwelling 2.

53. There will be an order accordingly.