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Gatea v City of Burnside [2005] SAERDC 1 (5 January 2005)

Last Updated: 7 January 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

GATEA v CITY OF BURNSIDE

Judgment of Commissioner Mosel

5 January 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development application – land division (community title) – consent refused by the Council – Residential Zone, Residential Policy Area 20 – whether the intended future use of the subject land for group dwellings satisfies the intent and purpose of the Zone a central consideration – other issues involve the assessment of the proposal against provisions that speak to the maintenance of amenity, minimisation of excavation, the provision of adequate open space and the protection of significant trees and other vegetation – use of land for group housing broadly consistent with purpose and intent of the Zone – land division will not foreclose the construction of dwellings of a design compatible with its neighbours – arborists advise to the effect that the significant trees can be afforded adequate protection remained unchallenged – decision of Council set aside – Provisional Development Plan Consent granted subject to conditions.

Development Act 1993, referred to.

Mitcham v Pearce [1999] SASC 578; RJ Stock Nominees Pty Ltd & Ors v The Barossa Council [1998] EDLR 137; Kokkotos v City of Mitcham [2000] SAERDC 13; Longridge Residential Pty Ltd v City of Burnside & Ors [1996] EDLR 415, considered.

GATEA v CITY OF BURNSIDE
[2005] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against the decision of the City of Burnside (‘the Council’) to refuse provisional development plan consent to an application made by Mr J Gatea for (community title) land division (Development Application No. 180/01086/03/CT). The subject land is situated at 23 Stonyfell Road, Wattle Park.

The Subject Land

2 The subject land is an irregularly shaped allotment, having a frontage to Stonyfell Road of 33.30 metres and an area of 2,265 square metres. Its rear boundary is common with part of the fence line that encloses a reservoir immediately to the east.
3 The front part of the subject land is occupied by a dwelling and garage. The proposed land division intends that the dwelling remain but the garage be removed to make way for a driveway. It appears that the rear yard of the dwelling was used in the past as a large private garden which had within it large trees, a water feature, a shade house and areas for sitting.
4 There are three significant trees on the subject land (Regulation 6A, Development Regulations 1993). An arborist’s report on particular aspects of each of these trees and with recommendations for the establishment of a tree protection zone for each is contained in Exhibit R1. The report was commissioned by the appellant and submitted to the Council prior to the making of its decision. The information and recommendations contained in the report were not the subject of challenge by the Council during the proceedings.
5 The subject land is located on a south-facing slope of a gully which incorporates Ferguson Park immediately opposite. It has a fall of about 1:10, which slope is not unlike most other properties in the near vicinity.
6 The subject land is abutted by detached dwellings, two semi-detached dwellings and two group dwellings.

The Proposal

7 Exhibit A1 is the proposed division of the subject land (attached). It differs slightly from the version submitted to the Council. Nothing flows from the differences.

8 The size of each allotment is shown on Exhibit A1. Mr Fantasia, a planner who appeared in support of the appellants case, recalculated the areas and according to him, the following applies:

• Lot 231: 708 m²
• Lot 232: 658 m²
• Lot 233: 612 m²
• Common Property: 287 m²

9 Mr Brunning, a planner who appeared in support of the Council’s case, arrived at areas somewhat different again but conceded that nothing turns on those differences.
10 That the intention of the proposed division is to accommodate, at some future date, ‘group dwellings’ is not in dispute. Indicative site layout plans for a dwelling on each allotment are included in Exhibit A1. Other than as an aid to the assessment of the proposal, the dwelling layouts have no force or effect.

The Relevant Provisions of the Development Plan and Assessment

11 In these proceedings the relevant version of the Development Plan for the area of the Council is dated 26 June 2003.
12 The subject land and its locality is depicted on Maps Bur/5 and 13. All land in the locality is within the Residential Zone (‘the Zone’) and Residential Policy Area 20 – Ferguson (‘the Policy Area’).
13 Within the Council wide section of the Development Plan there are provisions specific to land division. Those that are of most relevance are as follows:

Objective 10: Land in appropriate locations divided into allotments in an orderly and economic manner.

Principles of Development Control

3 Development should be undertaken in a manner that is consistent with the intended use and character of the relevant zone and policy area, and that would not interfere with the use of any other land.

....

6 The division of land should not unreasonably preclude or prejudice the continuance of existing use or future development of other land consistent with the relevant provisions of the Development Plan.

....

9 The size, shape, orientation, layout and location of the boundaries of allotments should:

....

(d) minimise the need for cut and fill associated with site preparation and associated earthworks (and therefore allotments in steeper terrain generally should have their longer axis perpendicular to site contours);

(e) provide appropriate areas and dimensions for the siting and construction of buildings, safe and convenient access and parking, and landscaping/private open space consistent with the objectives and principles of development control for the relevant zone and policy area;

(f) provide for the conservation of trees and other special site features consistent with a functional layout of future buildings, access, services and open space; and

(g) not be likely to result in tree-damaging activity occurring to a significant tree.

14 Principles 3 and 9(e), in particular, take further the well established entitlement of a planning authority, and this Court, to take into account the intended future use of the land when assessing the merits of land division (City of Mitcham v Pearce [1999] SASC 578, RJ Stock Nominees Pty Ltd & Ors v The Barossa Council [1998] EDLR 137). The extent to which the intended future use of the land determines the suitability of the subject land for the division into allotments was dealt with in Kokkotos v City of Mitcham [2000] SAERDC 13. In his decision in that matter, Commissioner Hodgson, inter alia, remarked as follows:

... evidence concerning the likely form and siting of future dwellings is relevant to these proceedings only if it serves to demonstrate that either of the allotments proposed is incapable of accommodating future residential development in a manner which is in general conformity with the relevant provisions of the Development Plan.
He concluded thus:

In determining the suitability of the subject land for division into allotments of the area and configuration proposed, it is not necessary, in my view, to do more than establish whether they are suitable for the purpose for which they are being created. The floor area, design, siting and means of construction of future dwellings, together with associated landscaping and access arrangements, are all variables which can result in a variety of approaches to the future development of the proposed allotments, some of which approaches may satisfy the requirements of the Development Plan, some of which may not. That is a matter for the Council, as the relevant planning authority, to decide at such time as it receives a specific proposal for the erection of a dwelling on either allotment.

15 Insofar as the consistency between the intended use of each allotment (for group dwellings) and the intended character of the Zone and Policy Area is for consideration, the following provisions for the zone are most relevant:

Objective 1: A zone primarily for residential use with a range of dwelling types in appropriate policy areas to accommodate varied socio-economic needs.
Objective 2: Protection and enhancement of the amenity of residential areas, with particular reference to the objectives for the relevant policy area.
Objective 3: Residential densities varied having regard to topography, the objectives for the relevant policy area, and proximity to centres and major transport routes.

16 These objectives are supported by explanatory text and principles of development control. The text identifies the character of the zone by reference to its high level of amenity and, within it, the predominance of detached houses and the range, density, and (uneven) distribution of other dwelling forms. Principle 1 identifies dwellings, inter alia, as an appropriate form of development.
17 There are particular provisions for the Policy Area that are also relevant. They are expressed thus:

Objective 1: Maintenance and enhancement of a low density, well-vegetated residential character that is derived particularly from:

(a) detached, post-war dwellings, in a variety of architectural styles; the topographic and other natural features of the foothills location, including stands of indigenous and other taller trees covering a large part of the Policy Area;

....

(d) in some localities, predominantly split-level or two-storeyed dwellings which, by retaining open space of sufficient size and location, promote the conservation of trees (as well as being visually compatible with their height).

Objective 2: Protection and enhancement of trees, and the natural features and open character of creeks, Ferguson Conservation Park, and local reserves.

18 These objectives are supported by or find further expression in several of the principles of development control. Of some importance is the (minimum) site area for each dwelling in Principle 5(a) (625 m²), the (minimum) site area for a for a battle-axe shaped allotment in Principle 6(a) (625 m²) and the (minimum) frontage for group dwellings in Principle 7 (18 m). The parties agree that the proposal is consistent, or may be made consistent, with these provisions. There are several other provisions that apply to land division (particularly Council Wide Principle 10) that are not at issue in these proceedings.
19 The provisions in respect of vegetation and significant trees embodied in Objective 20 and the principles thereunder and the residential design provisions established by Objective 50 and the several principles thereunder are also relevant and have been taken into account
20 Having regard to all that was put to me, I am of the view that the principal issues in these proceedings may be summarised thus:

(a) Whether the intended future use of the land for ‘group housing’ arranged in a manner determined by the proposed division would, by virtue of Council Wide Principle 3, satisfy the intent and purpose of the Zone and the Policy Area.

(b) Whether the proposed configuration of allotments when set in its immediate context would give rise to future development that adequately satisfies the provisions of the Development Plan that seek to protect and enhance amenity by minimising excavation, providing adequate open space and proper vehicle access and avoiding unreasonable loss of privacy.

(c) Whether the siteworks necessary to establish group dwellings on the subject land would threaten the health of the three significant trees and result in the removal of other vegetation.

(a) Intent and Purpose of the Zone and Policy Area

21 Both experts concluded that the size of the allotments constituted a development of ‘low density’ (Policy Area, Objective 1) but differed on the question of the suitability of the land for its intended purpose. Mr Fantasia concluded that, although the size, shape and dimensions of each allotment were irregular, they were nonetheless consistent with the form of development at the eastern end of Stonyfell Road. He also took into account the presence of two semi-detached dwellings and two group dwellings adjoining the subject land. Also, by reference to the indicative building layout plans in Exhibit A1, Mr Fantasia identified several features of the proposed development in support of his conclusion. Open space and space between buildings, the protection afforded to the significant trees and the retention of the existing house were among the factors he took into account.
22 Mr Brunning took a different view. He opined that the proposal ‘is more akin to infill development where under-utilised land to the rear of existing dwellings is sought to be realised for new living opportunities’. This arrangement, he said, is atypical in the locality and carries with it a risk of future development having adverse impacts on the amenity of the immediate neighbours.
23 The proposed land division establishes a development framework for ‘group housing’ to be constructed on the subject land. In my view, the intended future use is broadly consistent with the purpose and intent of the Zone and Policy Area when their relevant provisions are read together and properly applied in all the circumstances. Objective 1 and Principle 1 for the Zone and Principles 5 and 6 for the Policy Area all lend weight to a proposition that the Policy Area contemplates the general form and density of development intended. Granted, the particular configuration of future houses on the subject land is unlike that which exists in the locality. Of itself, that is not a sound basis for rejecting the proposal (Longridge Residential Pty Ltd v City of Burnside & Ors [1996] EDLR 415) particularly where, as in this case, immediately adjacent the subject land and in the near vicinity there are forms of housing other than detached dwellings on individual allotments.

(b) Amenity

24 The topography of the subject land and the shape and dimensions of the allotments are the principal sources of Mr Brunning’s concern. He opined that the benching that will be necessary to establish dwellings may lead to excessive cut and fill and the use of excessively high retaining walls or batters. Further, the shape of the subject land and the necessary benching may result in dwellings designed such that they will intrude upon the privacy of adjoining land and otherwise create a range of design difficulties in respect of open space, landscaping and vehicle reversing distances.
25 Mr Brunning would acknowledge, I think, that his evidence is couched in terms that foreshadow a risk of an uncertain or unsatisfactory built-form outcome eventuating as a consequence of the land division; which risk, he says, emanates from a paucity of design details such as bench levels, house design and construction details and excavation. In so saying, he acknowledged that ‘a change in character may be an inevitable consequence of infill development’ and that some overlooking is inevitable in localities with such topographic features.

26 The topography of the subject land is not severe and appears to be typical of the terrain upon which adjoining and nearby housing has been established. It has a slope of about 1:9 to 1:10. It is not difficult to envisage the establishment of dwellings on Lots 232 and 233 that utilise different bench levels and split level construction forms to accommodate changes in ground levels (which building style would not be out of kilter with the established character of the locality).
27 From that which I observed from the view, the particular detail provided on Exhibits A1 and A3 and the evidence of both experts, I have reached the conclusion that the proposed land division would not foreclose the establishment of dwellings of a design that ensures an appropriate level of compatibility with adjoining development, nor the provision of adequate landscaping and private open space on each allotment.
28 On the question of access, there appears to me to be ample flexibility for driveway design and the siting of all carports/garages to ensure that all vehicles proceed from the subject land to Stonyfell Road in a forward direction.

(c) Siteworks and Vegetation

29 Exhibit A1, inter alia, establishes tree protection zones (TPZ) for each of the three significant trees on the subject land. The TPZ’s are in accordance with the recommendations contained in a report commissioned by the appellant and prepared by Arborman Tree Solutions, which report forms part of Exhibit R1. I note from that report that the trees have construction tolerances rating from ‘moderate’ to ‘good’. The information and recommendations contained in that report were not contested by the Council.
30 There was nothing put before me to challenge the proposition that dwellings can be constructed on Lots 232 and 233 and a carport on Lot 231 without compromising the health of the three significant trees (Council Wide Objective 20 and Principles 41, 46 and 47). This conclusion has been reached without having addressed other provisions such as those in Principle 42. It is not necessary for me to do so.
31 A proposal for ‘group dwellings’ will, by necessity, be the subject of particular assessment by the Council. It is at that stage in the process, that the question of the retention of other existing vegetation can be addressed. Other than the aforementioned significant trees, the remaining vegetation is not the subject of assessment under the provisions of the Development Act 1993 were it intended the vegetation be removed in advance of development. Although some of the remaining vegetation might contribute to the amenity of the scheme once established in its entirety, there is no evidence before the Court that would justify a condition seeking to retain particular trees at the land division stage.

Conclusion

32 Council Wide Principle 3 and Principles 9(d)(e)(f) and (g), which principles are derived in part by Council Wide Objective 10, requires a planning authority and this Court to determine the suitability of a land division after having regard to, inter alia, the intended future use of each allotment. However, it is necessary only to establish that the area, dimensions and configuration of each allotment are suitable for the purpose for which they are created (Kokkotos).
33 In these proceedings, the case against the proposed land division was almost solely based on the risk of an adverse outcome from future development. In essence, the Council argued that the risks can only be resolved by obtaining consent for the final building form ahead of land division. As comforting to the Council that sequence of events might be, there are no provisions within the Development Act 1993 and enabling Regulations or the Development Plan that have procedural requirements of that nature.
34 The subject land is not without development limitations. Nor is the subject land free of particular constraints to development that commonly arise as a consequence of the development arrangement on adjoining land. However, the height, floor area, siting and orientation, architecture and landscaping are all variables that a skilled designer has to work with. The end result may or may not satisfy the Council once it receives and assesses a development application for each allotment.
35 In his examination of Mr Fantasia, Mr Hilditch alerted the Court to the Council’s concern that ‘it would be inappropriate for this Court to approve a division of land for an intended purpose which just couldn’t be achieved’. He went on to say:

...if this court were to approve the division of the land and in good faith, the newly created allotments were purchased, it would be most unfair for the purchasers to then seek to develop the land for its intended purpose, the residential purpose, only to find that there’s no design solution for the site. (Transcript pp 22 & 23)

36 His concerns might be warranted in different circumstances. However, having considered all that has been put before me and from what I saw on the view, I am satisfied that the size and configuration of the proposed allotments and access arrangements are capable of accommodating development in accordance with the relevant provisions when properly and sensibly applied. Whether future development of each allotment that satisfies the provisions of the Development Plan meets the tastes, preferences and expectations of future owners who seek to build on them is not the proper concern of this Court.
37 By memorandum dated 24 November 2004, I advised the parties of my conclusions and that, subject to the imposition of appropriate conditions there would be an order granting consent.
38 Upon resumption of the hearing, the parties produced a list of conditions the content of which were substantially agreed. They are appropriate to the circumstances and have been incorporated in the Provisional Development Plan Consent that follows.
39 Included in the list are several notes that are often appear in communications between the Council and applicants for development. I acknowledge that the notes contain valuable information. However, they formed no part of the proceedings and are not enforceable as would be an appropriate condition of consent. It is not appropriate for the Court to append the notes to its decision.

Decision

40 The decision of the Council to refuse consent is set aside.
41 Provisional Development Plan Consent is granted to Development Application No. 180/01086/03/CT for the division of land (Community Title) creating two additional allotments at 23 Stonyfell Road, Wattle Park subject to the following conditions:

1. The Development must be undertaken in accordance with the plans, drawings, specifications and other documents submitted to Council that are relevant to the approval of Development Application No. 180/01086/03/CT including the approved revised plans prepared by Aspex Building Designers dated September 2004 (attached hereto and marked ‘Exhibit A1’) except where varied by the following conditions.

2. The three (3) significant trees located on the subject land indicated as being retained on Exhibit A1 and marked A, B and C (‘the trees’), must be retained and maintained in good condition at all times to the reasonable satisfaction of Council. Any dead or diseased plants or trees must be replaced forthwith to the reasonable satisfaction of Council. The trees located on the subject land are:

• Two (2) River Red Gums;
• One (1) Sugar Gum.

All reasonable steps must be taken during the works the subject of the development, to protect the trees on the subject land, namely:

2.1 A temporary fence must be erected around the trees to create a Tree Protection Zone. The fence must enclose the area from the trunk of the tree to the canopy edge of the tree. The fence must be erected prior to any work commencing on the subject land and must be maintained in place until the development has been completed. This fencing must be constructed using the typical portable concrete block and mesh fencing. Signage must be installed on the fence indicating ‘Tree Protection Zone - Keep Out’;

2.2 All construction vehicles and workers must be kept off the tree Protection Zone;

2.3 No equipment/debris/building rubble or material shall be discarded/stored within the Tree Protection Zone;

2.4 Soil levels/topography surrounding the trees must not be altered in any way, and all reasonable attempts must be made to avoid compaction of the soil within the root zone/drip line of the trees' canopy, for the full period of construction work;

2.5 For any work under/in close proximity to the canopy of the trees, all due care must be taken to avoid damage to the canopy or to the branches of the trees;

2.6 No excavation including excavation for underground services and stormwater pipes must be located within the Tree Protection Zone.

3. The proposed access road and driveways shown on the approved plan must not be sealed within the Tree Protection Zones without the prior written approval of Council.

4. The proposed access road and driveways shown on the approved plan must be designed and constructed to satisfactory engineering standards and approved by Council in writing prior to the issue of the Section 51 Certificate.

Development Assessment Commission

1. The financial, easement, and internal drain requirements for water and sewerage services of the SA Water Corporation, if any, being met.

2. Payment of $4,430 into the Planning and Development Fund (2 Allotments @ $2,215/allotment). Cheques to be made payable and marked ‘Not Negotiable’ to Development Assessment Commission and payment made at Level 5, 136 North Terrace, Adelaide, or sent to GPO Box 1815, Adelaide, 5001, or via the internet at www.planning.sa.gov.au.

3. Two copies of a certified survey plan must be lodged with the Development Assessment Commission for Certificate purposes.

42 There will be an order accordingly.

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2	The subject land is an irregularly shaped allotment, having a frontage to Stonyfell Road of 33.30 metres and an area of 2,265 square metres. Its rear boundary is common with part of the fence line that encloses a reservoir immediately to the east.
3	The front part of the subject land is occupied by a dwelling and garage. The proposed land division intends that the dwelling remain but the garage be removed to make way for a driveway. It appears that the rear yard of the dwelling was used in the past as a large private garden which had within it large trees, a water feature, a shade house and areas for sitting.
4	There are three significant trees on the subject land (Regulation 6A, Development Regulations 1993). An arborist’s report on particular aspects of each of these trees and with recommendations for the establishment of a tree protection zone for each is contained in Exhibit R1. The report was commissioned by the appellant and submitted to the Council prior to the making of its decision. The information and recommendations contained in the report were not the subject of challenge by the Council during the proceedings.
5	The subject land is located on a south-facing slope of a gully which incorporates Ferguson Park immediately opposite. It has a fall of about 1:10, which slope is not unlike most other properties in the near vicinity.
6	The subject land is abutted by detached dwellings, two semi-detached dwellings and two group dwellings.

9	Mr Brunning, a planner who appeared in support of the Council’s case, arrived at areas somewhat different again but conceded that nothing turns on those differences.
10	That the intention of the proposed division is to accommodate, at some future date, ‘group dwellings’ is not in dispute. Indicative site layout plans for a dwelling on each allotment are included in Exhibit A1. Other than as an aid to the assessment of the proposal, the dwelling layouts have no force or effect.

11	In these proceedings the relevant version of the Development Plan for the area of the Council is dated 26 June 2003.
12	The subject land and its locality is depicted on Maps Bur/5 and 13. All land in the locality is within the Residential Zone (‘the Zone’) and Residential Policy Area 20 – Ferguson (‘the Policy Area’).
13	Within the Council wide section of the Development Plan there are provisions specific to land division. Those that are of most relevance are as follows:

16	These objectives are supported by explanatory text and principles of development control. The text identifies the character of the zone by reference to its high level of amenity and, within it, the predominance of detached houses and the range, density, and (uneven) distribution of other dwelling forms. Principle 1 identifies dwellings, inter alia, as an appropriate form of development.
17	There are particular provisions for the Policy Area that are also relevant. They are expressed thus:

18	These objectives are supported by or find further expression in several of the principles of development control. Of some importance is the (minimum) site area for each dwelling in Principle 5(a) (625 m²), the (minimum) site area for a for a battle-axe shaped allotment in Principle 6(a) (625 m²) and the (minimum) frontage for group dwellings in Principle 7 (18 m). The parties agree that the proposal is consistent, or may be made consistent, with these provisions. There are several other provisions that apply to land division (particularly Council Wide Principle 10) that are not at issue in these proceedings.
19	The provisions in respect of vegetation and significant trees embodied in Objective 20 and the principles thereunder and the residential design provisions established by Objective 50 and the several principles thereunder are also relevant and have been taken into account
20	Having regard to all that was put to me, I am of the view that the principal issues in these proceedings may be summarised thus:

21	Both experts concluded that the size of the allotments constituted a development of ‘low density’ (Policy Area, Objective 1) but differed on the question of the suitability of the land for its intended purpose. Mr Fantasia concluded that, although the size, shape and dimensions of each allotment were irregular, they were nonetheless consistent with the form of development at the eastern end of Stonyfell Road. He also took into account the presence of two semi-detached dwellings and two group dwellings adjoining the subject land. Also, by reference to the indicative building layout plans in Exhibit A1, Mr Fantasia identified several features of the proposed development in support of his conclusion. Open space and space between buildings, the protection afforded to the significant trees and the retention of the existing house were among the factors he took into account.
22	Mr Brunning took a different view. He opined that the proposal ‘is more akin to infill development where under-utilised land to the rear of existing dwellings is sought to be realised for new living opportunities’. This arrangement, he said, is atypical in the locality and carries with it a risk of future development having adverse impacts on the amenity of the immediate neighbours.
23	The proposed land division establishes a development framework for ‘group housing’ to be constructed on the subject land. In my view, the intended future use is broadly consistent with the purpose and intent of the Zone and Policy Area when their relevant provisions are read together and properly applied in all the circumstances. Objective 1 and Principle 1 for the Zone and Principles 5 and 6 for the Policy Area all lend weight to a proposition that the Policy Area contemplates the general form and density of development intended. Granted, the particular configuration of future houses on the subject land is unlike that which exists in the locality. Of itself, that is not a sound basis for rejecting the proposal (Longridge Residential Pty Ltd v City of Burnside & Ors [1996] EDLR 415) particularly where, as in this case, immediately adjacent the subject land and in the near vicinity there are forms of housing other than detached dwellings on individual allotments.

26	The topography of the subject land is not severe and appears to be typical of the terrain upon which adjoining and nearby housing has been established. It has a slope of about 1:9 to 1:10. It is not difficult to envisage the establishment of dwellings on Lots 232 and 233 that utilise different bench levels and split level construction forms to accommodate changes in ground levels (which building style would not be out of kilter with the established character of the locality).
27	From that which I observed from the view, the particular detail provided on Exhibits A1 and A3 and the evidence of both experts, I have reached the conclusion that the proposed land division would not foreclose the establishment of dwellings of a design that ensures an appropriate level of compatibility with adjoining development, nor the provision of adequate landscaping and private open space on each allotment.
28	On the question of access, there appears to me to be ample flexibility for driveway design and the siting of all carports/garages to ensure that all vehicles proceed from the subject land to Stonyfell Road in a forward direction.

29	Exhibit A1, inter alia, establishes tree protection zones (TPZ) for each of the three significant trees on the subject land. The TPZ’s are in accordance with the recommendations contained in a report commissioned by the appellant and prepared by Arborman Tree Solutions, which report forms part of Exhibit R1. I note from that report that the trees have construction tolerances rating from ‘moderate’ to ‘good’. The information and recommendations contained in that report were not contested by the Council.
30	There was nothing put before me to challenge the proposition that dwellings can be constructed on Lots 232 and 233 and a carport on Lot 231 without compromising the health of the three significant trees (Council Wide Objective 20 and Principles 41, 46 and 47). This conclusion has been reached without having addressed other provisions such as those in Principle 42. It is not necessary for me to do so.
31	A proposal for ‘group dwellings’ will, by necessity, be the subject of particular assessment by the Council. It is at that stage in the process, that the question of the retention of other existing vegetation can be addressed. Other than the aforementioned significant trees, the remaining vegetation is not the subject of assessment under the provisions of the Development Act 1993 were it intended the vegetation be removed in advance of development. Although some of the remaining vegetation might contribute to the amenity of the scheme once established in its entirety, there is no evidence before the Court that would justify a condition seeking to retain particular trees at the land division stage.

32	Council Wide Principle 3 and Principles 9(d)(e)(f) and (g), which principles are derived in part by Council Wide Objective 10, requires a planning authority and this Court to determine the suitability of a land division after having regard to, inter alia, the intended future use of each allotment. However, it is necessary only to establish that the area, dimensions and configuration of each allotment are suitable for the purpose for which they are created (Kokkotos).
33	In these proceedings, the case against the proposed land division was almost solely based on the risk of an adverse outcome from future development. In essence, the Council argued that the risks can only be resolved by obtaining consent for the final building form ahead of land division. As comforting to the Council that sequence of events might be, there are no provisions within the Development Act 1993 and enabling Regulations or the Development Plan that have procedural requirements of that nature.
34	The subject land is not without development limitations. Nor is the subject land free of particular constraints to development that commonly arise as a consequence of the development arrangement on adjoining land. However, the height, floor area, siting and orientation, architecture and landscaping are all variables that a skilled designer has to work with. The end result may or may not satisfy the Council once it receives and assesses a development application for each allotment.
35	In his examination of Mr Fantasia, Mr Hilditch alerted the Court to the Council’s concern that ‘it would be inappropriate for this Court to approve a division of land for an intended purpose which just couldn’t be achieved’. He went on to say:

36	His concerns might be warranted in different circumstances. However, having considered all that has been put before me and from what I saw on the view, I am satisfied that the size and configuration of the proposed allotments and access arrangements are capable of accommodating development in accordance with the relevant provisions when properly and sensibly applied. Whether future development of each allotment that satisfies the provisions of the Development Plan meets the tastes, preferences and expectations of future owners who seek to build on them is not the proper concern of this Court.
37	By memorandum dated 24 November 2004, I advised the parties of my conclusions and that, subject to the imposition of appropriate conditions there would be an order granting consent.
38	Upon resumption of the hearing, the parties produced a list of conditions the content of which were substantially agreed. They are appropriate to the circumstances and have been incorporated in the Provisional Development Plan Consent that follows.
39	Included in the list are several notes that are often appear in communications between the Council and applicants for development. I acknowledge that the notes contain valuable information. However, they formed no part of the proceedings and are not enforceable as would be an appropriate condition of consent. It is not appropriate for the Court to append the notes to its decision.

40	The decision of the Council to refuse consent is set aside.
41	Provisional Development Plan Consent is granted to Development Application No. 180/01086/03/CT for the division of land (Community Title) creating two additional allotments at 23 Stonyfell Road, Wattle Park subject to the following conditions: