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Howe v City of Mitcham [2005] SAERDC 2 (12 January 2005)

Last Updated: 14 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.

HOWE v CITY OF MITCHAM

Judgment of Commissioner Green

12 January 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development Act - applicant appeals - refusal by the Council in each case to a detached dwelling and land division creating an additional allotment - Residential (Central Plains) Zone and Residential Policy Area 8 - low density development and character sought - proposal of medium density - other issues of site coverage, rear setbacks and adequacy of private open space considered - proposals not sufficiently in accord with Development Plan as a whole to warrant consent - appeals dismissed - refusals of the Council upheld.

Development Act 1993; Development Regulations 1993, referred to.

M & L Development Pty Ltd v City of Holdfast Bay [2002] SAERDC 45; Bolto v City of Charles Sturt [2003] SAERDC 18; Nadebaum v City of Mitcham [1995] EDLR 587, considered.

HOWE v CITY OF MITCHAM
[2005] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENTS:

1 These are applicant appeals (2) against the decisions of the City of Mitcham (the Council) under the Development Act 1993 to refuse (A) Development Application No. 080/381/2004 seeking Provisional Development Plan Consent for a detached dwelling/verandah, and (B) Development Application No. 080/430/2004 for land division, both at Daw Park. The reasons for the Council refusals (Exhibit R1, p34) are as follows:

(A) 1. The proposal is at variance with provisions of Council’s Development Plan in that it seeks to create two undersize allotments, does not meet the setback and site coverage provisions and does not provide sufficient private open space for the proposed new dwelling. In addition, it is inconsistent with the pattern of development in the locality.

(B) 1. The proposal is at variance with provisions of Council’s Development Plan in that it seeks to create two undersize allotments one of which cannot contain an area 10 by 15 metres suitable for the construction of a dwelling without contravening the setback provisions of Council’s Development Plan. In addition, it is inconsistent with the pattern of development within the locality.

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

Date of Applications (A/B): 11 March 2004/19 March 2004

Subject Land Address: 51 Morgan Avenue (corner Rockville Avenue), Daw Park

Existing Use: Detached dwelling and outbuildings

Proposals: (A) detached dwelling, verandah, fencing and landscaping; (B) land division (1 additional allotment)

Relevant Authority: City of Mitcham

Appropriate Development Plan: Mitcham (City) consolidated version 12 February 2004 in each case

Relevant Zone/Area: Residential (Central Plains) Zone/ Policy Area 8

Date of Decisions: 7 September 2004

Appeals Lodged: (A) 25 October 2004; and

(B) 19 October 2004

Conference Date: Concluding 17 November 2004

3 The Court viewed the subject land and the locality on the morning of Wednesday, 22 December 2004 in the presence of the parties. Witnesses providing evidence to assist the Court comprised for the appellant, Ms J Smith, daughter of the appellant, giving her views as a layperson and ex-Councillor of Mitcham of the proposal and its compliance with the Development Plan policies; and the appellant in person with respect to her needs. The respondent Council called Mr R Ressom, a qualified town planner, employed as a development officer with the Council and who had made a recommendation refusing the applications as contained in reports to the Council in the copy documents Exhibit R1.

The Subject Land

4 The subject land comprises Allotment 27, FP 11730 contained in Certificate of Title Volume 5737 Folio 715. It is a corner allotment and has a frontage to Morgan Avenue of 16.76 metres and to Rockville Avenue of 42.98 metres (with no formal corner cut-off depicted on the copies of the Title presented to the Court) and with a site area of some 720.3 square metres (not 711 square metres as shown in Exhibit R4).
5 The land is relatively flat and contains a single storey detached dwelling, carport, driveway and front garden facing north and orientated to Morgan Avenue, and with a transportable outbuilding and double garage to the rear and close to, or on the western side, Rockville Avenue boundary which has a 1.8 metre Colorbond fence and a double crossover to the garage.
6 The rear yard area is in poor condition and it contains two medium size trees very near to the southern boundary and four medium to large sized Eucalyptus trees very near to the eastern boundary, but none are defined as ‘significant trees’ under the Development Regulations 1993. The dwelling has extensive pergolas and a portico to the front and two extensive verandahs to the eastern side and southern rear side. The dwelling is setback some 1.0 metre from the western side of the Rockville Avenue boundary and some 6 to 8 metres from Morgan Avenue. Two substantial street trees exist along the Rockville Avenue frontage.

The Proposal

7 The two development applications are interrelated as the proposed Torrens Title land division application is to formalise the new site for an additional detached dwelling proposed in the rear yard. A summary of relevant details is as follows:

(A) Detached Dwelling

• Single storey, two bedrooms and study. A small dwelling of approximately 115 square metres floor area (including verandah);
• Site (and proposed allotment) with an 18 metre frontage/width by 16.76 metres depth providing a total of some 302 square metres site area;
• Site coverage (including verandahs) 38 per cent (Mr Ressom);
• Setbacks – 4.0 metres from the front, Rockville Avenue boundary;
- 1.0 metre from the southern side boundary;
- 1.5 metres from the eastern rear boundary; and
- some 6.0 metres from the northern side boundary;
• External walls of cream/sandstone brick; pitched roof at 25 degrees with grey roof tiles;
• New internal dividing fence of 1.8 metres and to Rockville Avenue, retention of a 1.8 metre green Colorbond fence for a section north of the proposed driveway and a new 1.2 metre high open, metal ‘Heritage Green’ fence to the balance of the frontage;
• Removal of two trees near the southern boundary and removal of two trees near the eastern boundary with retention of the other two Eucalyptus trees near the eastern boundary (submission of Ms Smith), though plans showed retention of one tree only. The nearest part of the trunk of the retained trees would be some 1.2-1.5 metres from the proposed dwelling walls and foundations;
• Paved perimeters to the dwelling, 3 metre wide driveway and hardstand area (uncovered) for a motor vehicle, located on the northern side of the dwelling; and
• Open space provided to the northern side, excluding the car space and driveway of some 54 square metres and to the front, western side excluding the verandah of some 48 square metres providing a total of some 102 square metres.

(B) Land Division

• New allotment of 18.0 metres to Rockville Avenue and 16.76 metres depth providing a site area of 301.68 square metres, located to the rear and south of the existing dwelling;
• New allotment containing the existing dwelling, carport, driveway to Morgan Avenue with a 16.76 metre frontage and a site area of some 418.6 square metres;
• Rear open verandah of existing dwelling, would then be setback approximately 1 metre from the new boundary and proposed fence line and the rear of the dwelling wall/windows setback approximately 4 metres from the rear boundary; and
• Existing dwelling roofed area (including carport, rear/side verandahs but excluding pergolas to the front) of approximately 53 per cent of the site area (calculations of Mr Ressom) of which some 32 per cent is the dwelling building and 20 to 21 per cent is open sided verandah/carport structures.

The Locality

8 Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal is likely to impact upon, to a notable degree, the locality and its definition in this matter is to be based primarily on visual and character perception factors. That is the traditional, and in my view correct approach, as utilised by Mr Ressom and it is to be significantly contrasted with the suggestions of Ms Smith, that either the whole or the southern part of the Daw Park suburb or the area from Winston Avenue in the west to Goodwood Road in the east and from Daws Road in the south to Ayres Avenue to the north, should comprise the locality.
9 I generally agree with that defined and described by Mr Ressom but find that it should extend a little further to the east and west along Morgan Avenue, up to the respective side-street corners with Elder Street and Milne Street, to engross similar, relatively near, corner allotment sites. Hence, it includes Nos. 22-56 Morgan Avenue on the north side; Nos. 25-65 Morgan Avenue on the south side; and Nos. 36-50 on the north side, and Nos. 41-65 on the south and western sides of Rockville Avenue.
10 The locality is made up entirely by residential use, of single storey buildings, with some 35 detached dwellings and one pair of semi-detached dwellings (No. 40) along Morgan Avenue and 11 pairs of (current or former SA Housing Trust) semi-detached dwellings in Rockville Avenue.
11 Detached dwellings are on sites typically in the 640-720 square metres range, with depths of approximately 43 metres and frontages of approximately 15-17 metres. Semi-detached dwellings appear to be on sites (as opposed to ‘allotments’), in the order of 360 square metres (40 Morgan Avenue), or 444 square metres (40-42 Rockville Avenue), and up to 922-926 square metres (55-57 Rockville Avenue), as set out in Exhibit R4, though it was acknowledged that there is a small percentage error (perhaps 1 to 2 percent) in the area calculations set out on the GIS produced plan of the Council (Exhibit R4). Dwelling density is low, with only one or two exceptions.
12 Front dwelling setbacks are varied but are mostly generous, in the order of 6-10 metres; side setbacks are typically 1-2 metres on one side and 3-5 metres on the other, driveway/garaging side; and with generous rear setbacks in the order of 10-20 metres. Dwellings are simple in architectural form and style, including typical bungalow style as occurs in much of Daw Park but with a greater mix of single, traditional SA Housing Trust semi-detached dwellings and ‘modern’ 50s-60s brick dwellings.
13 There is a range of garden and vegetation quality, some minimal and very poor quality, others well kept and substantial. There are a number of larger trees generally in rear yards and street trees that all add to appeal.
14 Overall, the visual amenity level is assessed as medium, enhanced by vegetation but marred by the style and condition of many buildings and the appearance of garages and fencing.
15 A new SA Housing Trust development on a large site of over 2,250 square metres is located some 200 metres to the east on Rockville Avenue, and comprising a series of 7 small, one storey detached dwellings on sites ranging in area from 318-365 square metres and with two larger vacant sites. Its characteristics are noted, though it is located outside the defined locality.

Relevant Development Plan Provisions

16 I have considered the various provisions referred to by Mr Ressom and Ms Smith and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter.

METROPOLITAN ADELAIDE
Objectives: 5, 6, 7, 8, 9 and 43; and
Principles of development control: 3, 4, 8, 9, 10, 11, 13, 14 and 15.

COUNCIL WIDE
Objectives: 4, 5, 8, 14, 15, 16, 17 and 18; and

Principles of development control: 3, 16, 17, 18, 19, 21, 22, 26, 28, 44, 45, 46, 49, 51, 52, 144, 145, 148, 149, 150, 153 and 176.

RESIDENTIAL (CENTRAL PLAINS) ZONE

Objectives: 1 and 2; and

Desired Character - Residential (Central Plains) Policy Area 8; and

Principles of development control: 1, 2, 3, 4 and 5.

Residential (Central Plains) Policy Area 8

Principles of development control: 1 and 2.

MAPS Mit/8 and 30;

Table Mit/1.

Processing

17 Proposal (A) was assigned by Principle 5 in the Zone as a Category 1 development as is proposal (B) by the regulations, and the documents show that no submissions were received by the Council. In addition, no referrals to any government agencies appear to have been required pursuant to Schedule 8 of the regulations.

Planning Assessment

18 S33(1)(a) of the Act requires the relevant authority (the Council and this Court) to assess a development application against the provisions of the appropriate Development Plan and s35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the relevant Development Plan is to be assessed, and it is the relevant guidelines in the Development Plan (listed above), that provide the firm basis for decision-making. It is not to be based on personal taste as to style and appearance, nor is it a theoretical urban design exercise, nor merely whether the proposal represents an improvement in comparison to existing older or more recent dwellings or outbuildings.

19 In terms of s35 and the provisions of the relevant Development Plan, particularly the Residential (Central Plains) Zone and Policy Area 8 policies, both proposed developments are neither a complying nor a non-complying development. They are for consideration on their merits against the Development Plan guidelines, weighing up the pros and cons and whether, in each case, they are conducive to the desired character and amenity of the Zone (as well as Policy Area 8). Ultimately, a planning judgment is to be made on whether the developments sufficiently meet the Development Plan and having regard to all relevant factors, warrant consent.
20 The proposed detached dwelling (A) and allotment (B) formalising the new site, are clearly acceptable with regard to land use, dwelling type and tenure in the light of Residential (Central Plains) Zone, Objective 1 and Principle 1.
21 The issues of dwelling site (and allotment) area and dwelling density are central to the assessment and decision making in this matter. The key Development Plan guidelines with respect to those aspects are as follows:

RESIDENTIAL (CENTRAL PLAINS) ZONE
.....

Objective 1: Development comprising primarily detached dwellings within Residential (Central Plains) Policy Areas 8, 9, 10 and 12 undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality.

Objective 2: Development that accords with the desired character of the relevant policy area and allows for the retention of existing affordable housing wherever appropriate.

Desired Character
Residential (Central Plains) Policy Area 8
.....

In a number of instances there are relatively isolated and homogeneous pockets of more modern building styles constructed through the 1970’s and 1980’s. These areas represent more recent development of large parcels of land that were re-subdivided following the initial subdivision and development of the area. Whilst these pockets of infill housing are distinctive in their appearance, they do not represent the predominant architectural character of the area.

Throughout the policy area, a number of more modern medium density housing developments have occurred. These include residential flat buildings, single-storey home units and semi-detached dwellings. Generally their form and appearance varies significantly from the prevailing detached dwelling character of the area. However they also provide a stock of alternative accommodation to the predominant three and four bedroom dwellings.

Specific features of the policy area that contribute to its character include a predominance of single-storey detached dwellings on generally spacious allotments with relatively uniform set-backs from road frontages. This results in the area’s distinctive low-density character with generous proportions of open space, both in front of and behind dwellings, and wide and spacious streetscapes dominated by a combination of street trees and landscaped front gardens.

The provision of public open space and recreation throughout the area is generally poor, particularly in that part of the policy area north of Daws Road/Springbank Road. This constrains the appropriateness of the policy area to accommodate higher density development.

Future development within the policy area should complement the existing mixed character of development constructed between 1920 to 1970, by respecting and preserving the private open space and low density qualities of the area. The redevelopment of individual sites with replacement dwellings at higher densities has, in the past, often resulted in development significantly out of character with its locality and the loss of existing affordable housing stock. Such dwelling forms include blocks of low/medium rise flats or townhouses, including residential flat buildings that run down side property boundaries. These should not continue to be built as they do not complement or preserve the desired pattern and character of development.

......

To achieve new development at higher density than that prevailing, whilst maintaining the character of the area, such development should be located on larger sites (which may require the amalgamation of several existing allotments) to enable a planned and co-ordinated development. In such instances development should address the road frontage to maintain the existing streetscape character, and should either provide, or be located in proximity to, adequate public or private open space. New development should also ensure that site areas per dwelling are sufficiently large to provide an adequate provision of unbuilt-upon land, including private open space with each dwelling. Residential flat buildings may however be developed in duplex form in appropriate locations where they would be in context with existing streetscapes and the predominant character of the locality.
.....
PRINCIPLES OF DEVELOPMENT CONTROL

1 Development within the zone should be primarily for detached dwellings; other dwelling forms may be appropriate where the external design and appearance of such dwellings complements the predominant architect, streetscape and low-density character of existing development within the locality.

....

Residential (Central Plains) Policy Area 8

1 Excluding residences comprising dependent relative accommodation, the minimum site area for a dwelling should be as follows:

(a) 500 square metres for a detached dwelling;

(b) 425 square metres for a semi-detached dwelling; and

except as provided for under principle of development control numbered 2 of this policy area.

2 Where a total development site is greater than 2250 square metres and each boundary of the site is not less than 35 metres long, the land may be developed to a comprehensive scheme with site areas of not less than 325 square metres per dwelling, following a unified design including such elements as building bulk, roof-form, external materials and colours.

3 New housing, and in particular development on sites comprising two or more dwellings, should maintain, or where appropriate, enhance the streetscape in the locality through:

(a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality;
.....

COUNCIL WIDE
.....

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

Objective 15: The location, design and density of residential development providing an efficient and effective use of established and new urban infrastructure and services.

.....

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

Medium density residential development is allowed for in proximity to district centres at Mitcham, Cumberland Park and Blackwood.

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

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

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

(b) convenient and safe vehicle access and parking;

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

.....
Accordingly;

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

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

(i) 15 metres for detached dwellings;

......

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

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

.....

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

.....

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

METROPOLITAN ADELAIDE

.....

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 maximising 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.
.....

Objective 8: Containment of housing costs through the encouragement of a full range of design and development techniques.

This can be achieved by measures such as the economical layout of residential development, the reduction of allotment sizes and street widths, the use of innovative servicing techniques, the encouragement of designs which use space efficiently and effectively, and the provision of medium density residential development where appropriate.

(my underlining).

22 On the subject land as a whole (720 square metres) only a single dwelling at low density is actively encouraged by the Zone and Policy Area guidelines. The proposed dwelling site and allotment area for the new dwelling (302 square metres) is significantly below the complying development standard of 600 square metres in Zone Principle 3, and the guide of 500 square metres in Policy Area 8, Principle 1 for a detached dwelling, or as a comparison, the guide of 425 square metres for a semi-detached dwelling, or where larger site redevelopment is envisaged of 325 square metres per dwelling (Policy Area 8 Principle 2). The Council’s Development Plan clearly sets out in the various residential zones and various residential policy areas, the varied dwelling densities sought across the whole of the Council area and to meet the Metropolitan Adelaide objectives and principles. It is clear from a comparison of all of the other zone and policy area provisions in the City of Mitcham Development Plan, that a dwelling density of 302 square metres (or taking the most favourable position for the appellant, the average of the two dwellings on the subject land of 360 square metres), should be assessed as being of medium density and not low density as sought in the relevant Zone and Policy Area.
23 In M & L Development Pty Ltd v City of Holdfast Bay [2002] SAERDC 45 it was said:

Principles governing dwelling yield were also important in ensuring equity in the distribution of development potential. It was a reasonable expectation on the part of owners of land that the development potential of similarly sized sites within a zone would be the same, other than where the configuration of a site or access thereto, did not allow the full theoretical yield to be achieved. An inevitable consequence of allowing a yield on land greater than that envisaged by the Development Plan would be to create an expectation on the part of owners of allotments of comparable size within the zone that a similar yield could be obtained from their allotments. In all likelihood, a density across a zone significantly greater than that envisaged by the Development Plan would in the end be achieved.

24 As I found in Bolto v City of Charles Sturt [2003] SAERDC 18, I generally agree with those comments. In addition, having regard to Nadebaum v City of Mitcham [1995] EDLR 587, it may be difficult for a planning authority or this Court to resist comparable proposals, particularly in the same locality or at the least on the other similar corner sites and in the same zone and policy area. The up-shot long term, is likely to be an increase and shift in dwelling density not envisaged by the relevant Development Plan.
25 Now it may well be that, based on the City of Mitcham – Community Needs Assessment Study (extract in Exhibit A3), or on other assessments of need, or efficiencies for urban redevelopment, or other town planning or political reasoning, there becomes a time where it is justified to increase residential dwelling densities further. However, if that is to be the case, the appropriate and fair process for that to occur is through the Plan Amendment procedure setout in the Act, involving extensive community consultation and both Council and ministerial/State Government approval. Individual development applications would then be based on and respond appropriately to the relevant Development Plan guidelines of the day.
26 In this matter, applying the relevant guidelines in the locality context, the existence of one pair of semi-detached dwellings with a likely similar (if not identical) average dwelling density of 360 square metres (on the evidence, likely to have been approved by the Council prior to the current zoning/policy regime), or other redevelopment outside the locality located to the east along Rockdale Avenue, are insufficient departures to the predominant and the desired dwelling density character as sought by the Development Plan and relevant Zone and Policy Area provisions. The proposed density and new small allotment is not consistent with that in the defined locality. The departures do not provide a sufficient basis to warrant overriding or under-weighting Policy Area 8 Principle 1 or Zone Objective 1 and Principle 1, or Policy Area 8 Desired Character paras.8 and 10.
27 I consider that the variances to dwelling density guidelines alone are sufficient to warrant rejection of both proposed developments (A) and (B). However, there are also three other aspects that are worthy of comment.
28 Firstly, I comment on the proposed site coverage of the proposed dwelling on its site (some 38 percent) and without any vehicle garaging proposed, which if it were to eventuate later, as in my view is moderately likely, would increase coverage to some 42 percent; and the site coverage arising for the existing dwelling on its reduced site area of some 53 percent (though acknowledging the extent of open sided, roofed verandah, carport, porch areas), compared to the guidelines in Council Wide Principle 26 (c)(i) of 40 percent and Residential (Central Plains) Policy Area 8 Desired Character para.10, third sentence. These departures lend support to an assessment that the site area available is too small to accommodate the proposed modest sized dwelling and that a perception of over development of roofed, built form may arise.
29 Secondly, I comment on the issue of proposed building setbacks to existing or proposed boundaries, having regard to the guidelines in Council Wide Principle 18, second (a)(iii) and (b), and Principle 19, second (a) and (d); and Residential (Central Plains) Policy Area 8, Principle 3.
30 The existing dwelling would have a new rear setback to the proposed boundary of 1 metre to the verandah and about 4 metres to the rear of the dwelling wall, in comparison to the guideline of 5 metres. The proposed dwelling would have acceptable front and side setbacks (given the guidelines and the corner site nature of the subject land as a whole), but will have a rear setback of 1.5 metres compared to the guide of 5 metres. Generous rear setbacks are envisaged to be retained and preserved having regard to the Desired Character para.6, second sentence, and Policy Area 8 Principle 3(a).
31 Again, the practical effect of the minimal rear setback to both the existing and proposed dwelling is a visual perception of over development and lack of space around the buildings.
32 As an aside, and though no evidence was presented to the Court on this aspect, I would have grave reservations about consent being granted to a new dwelling that is to be sited less than 1.5 metres from the trunks of two large, robust Eucalyptus trees. Greater rear setback of the proposed dwelling is also required on this account (having regard to Council Wide Principles 28 (a)(b), 149 and 150).
33 Thirdly, I comment on the issue of adequacy of private open space. I find acceptable the amount of private open space proposed for the new dwelling, having regard to Council Wide Principle 17, however in providing such space, particularly on the northern side of the proposed dwelling, the private open space for the existing dwelling is heavily comprised at its rear. This deficiency is not critical given the extent of remaining outdoor space both under roofed verandahs or pergola areas and in the semi-screened front garden area.
34 In all other respects, including retention of the existing dwelling, the proposed dwelling form, style and appearance, proposed fencing, vehicle access and parking and other functional aspects, I consider the proposed dwelling to be acceptable. Visual amenity of the rear of the subject land, corner block, is likely to be improved, but that is not sufficient to override or under-weight the central desired dwelling density and other character guidelines.
35 I acknowledge the genuine need and reasoning of the appellant for the proposals. If the matter, and in particular the residential dwelling density had been finely balanced, it may have been appropriate to place more weight on those needs and the broad provisions of the Plan, such as Metropolitan Adelaide Objectives 6, 7 and 8, and Council Wide Objective 16. That is not the case. It is for the appellant to consider all other options available to her and including the opportunity for dependent relative accommodation as envisaged by Council Wide Principle 30.

Conclusions

36 The proposals (A) and (B), fail to meet the relevant guidelines seeking low-density residential development, and to a significant degree. The proposed dwelling and resultant existing dwelling siting relevant to the new dividing boundary also fail to meet site coverage, rear setback and general space around buildings guidelines, sought for residential development generally and in the Residential (Central Plains) Policy Area 8, Desired Character provisions.
37 I have weighed up all relevant qualitative and quantitative Development Plan guidelines and integrated and considered them as a whole. I have considered the real and likely effects on the character intended for the relevant Zone and Policy Area. I conclude that the proposal is not sufficiently conducive to the future character sought for that Zone and Policy Area. I have also carefully considered the detached dwelling (A) and land division (B) development proposals against the whole Development Plan, applied in the local site and locality context, the expert evidence of Mr Ressom (not fundamentally challenged), the evidence and submissions of Ms Smith and the appellant, what I saw on the view and all relevant circumstances and I conclude that neither application is worthy of the relevant consents.

Decisions

38 The decision of the Court is to dismiss both appeals. The decisions of the Council to refuse to grant consent to:

(A) - Development Application No. 080/381/2004 (detached dwelling); and
(B) - Development Application No. 080/430/2004 (land division);

are upheld.

39 There will be an order to that effect.

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4	The subject land comprises Allotment 27, FP 11730 contained in Certificate of Title Volume 5737 Folio 715. It is a corner allotment and has a frontage to Morgan Avenue of 16.76 metres and to Rockville Avenue of 42.98 metres (with no formal corner cut-off depicted on the copies of the Title presented to the Court) and with a site area of some 720.3 square metres (not 711 square metres as shown in Exhibit R4).
5	The land is relatively flat and contains a single storey detached dwelling, carport, driveway and front garden facing north and orientated to Morgan Avenue, and with a transportable outbuilding and double garage to the rear and close to, or on the western side, Rockville Avenue boundary which has a 1.8 metre Colorbond fence and a double crossover to the garage.
6	The rear yard area is in poor condition and it contains two medium size trees very near to the southern boundary and four medium to large sized Eucalyptus trees very near to the eastern boundary, but none are defined as ‘significant trees’ under the Development Regulations 1993. The dwelling has extensive pergolas and a portico to the front and two extensive verandahs to the eastern side and southern rear side. The dwelling is setback some 1.0 metre from the western side of the Rockville Avenue boundary and some 6 to 8 metres from Morgan Avenue. Two substantial street trees exist along the Rockville Avenue frontage.

8	Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal is likely to impact upon, to a notable degree, the locality and its definition in this matter is to be based primarily on visual and character perception factors. That is the traditional, and in my view correct approach, as utilised by Mr Ressom and it is to be significantly contrasted with the suggestions of Ms Smith, that either the whole or the southern part of the Daw Park suburb or the area from Winston Avenue in the west to Goodwood Road in the east and from Daws Road in the south to Ayres Avenue to the north, should comprise the locality.
9	I generally agree with that defined and described by Mr Ressom but find that it should extend a little further to the east and west along Morgan Avenue, up to the respective side-street corners with Elder Street and Milne Street, to engross similar, relatively near, corner allotment sites. Hence, it includes Nos. 22-56 Morgan Avenue on the north side; Nos. 25-65 Morgan Avenue on the south side; and Nos. 36-50 on the north side, and Nos. 41-65 on the south and western sides of Rockville Avenue.
10	The locality is made up entirely by residential use, of single storey buildings, with some 35 detached dwellings and one pair of semi-detached dwellings (No. 40) along Morgan Avenue and 11 pairs of (current or former SA Housing Trust) semi-detached dwellings in Rockville Avenue.
11	Detached dwellings are on sites typically in the 640-720 square metres range, with depths of approximately 43 metres and frontages of approximately 15-17 metres. Semi-detached dwellings appear to be on sites (as opposed to ‘allotments’), in the order of 360 square metres (40 Morgan Avenue), or 444 square metres (40-42 Rockville Avenue), and up to 922-926 square metres (55-57 Rockville Avenue), as set out in Exhibit R4, though it was acknowledged that there is a small percentage error (perhaps 1 to 2 percent) in the area calculations set out on the GIS produced plan of the Council (Exhibit R4). Dwelling density is low, with only one or two exceptions.
12	Front dwelling setbacks are varied but are mostly generous, in the order of 6-10 metres; side setbacks are typically 1-2 metres on one side and 3-5 metres on the other, driveway/garaging side; and with generous rear setbacks in the order of 10-20 metres. Dwellings are simple in architectural form and style, including typical bungalow style as occurs in much of Daw Park but with a greater mix of single, traditional SA Housing Trust semi-detached dwellings and ‘modern’ 50s-60s brick dwellings.
13	There is a range of garden and vegetation quality, some minimal and very poor quality, others well kept and substantial. There are a number of larger trees generally in rear yards and street trees that all add to appeal.
14	Overall, the visual amenity level is assessed as medium, enhanced by vegetation but marred by the style and condition of many buildings and the appearance of garages and fencing.
15	A new SA Housing Trust development on a large site of over 2,250 square metres is located some 200 metres to the east on Rockville Avenue, and comprising a series of 7 small, one storey detached dwellings on sites ranging in area from 318-365 square metres and with two larger vacant sites. Its characteristics are noted, though it is located outside the defined locality.

19	In terms of s35 and the provisions of the relevant Development Plan, particularly the Residential (Central Plains) Zone and Policy Area 8 policies, both proposed developments are neither a complying nor a non-complying development. They are for consideration on their merits against the Development Plan guidelines, weighing up the pros and cons and whether, in each case, they are conducive to the desired character and amenity of the Zone (as well as Policy Area 8). Ultimately, a planning judgment is to be made on whether the developments sufficiently meet the Development Plan and having regard to all relevant factors, warrant consent.
20	The proposed detached dwelling (A) and allotment (B) formalising the new site, are clearly acceptable with regard to land use, dwelling type and tenure in the light of Residential (Central Plains) Zone, Objective 1 and Principle 1.
21	The issues of dwelling site (and allotment) area and dwelling density are central to the assessment and decision making in this matter. The key Development Plan guidelines with respect to those aspects are as follows:

24	As I found in Bolto v City of Charles Sturt [2003] SAERDC 18, I generally agree with those comments. In addition, having regard to Nadebaum v City of Mitcham [1995] EDLR 587, it may be difficult for a planning authority or this Court to resist comparable proposals, particularly in the same locality or at the least on the other similar corner sites and in the same zone and policy area. The up-shot long term, is likely to be an increase and shift in dwelling density not envisaged by the relevant Development Plan.
25	Now it may well be that, based on the City of Mitcham – Community Needs Assessment Study (extract in Exhibit A3), or on other assessments of need, or efficiencies for urban redevelopment, or other town planning or political reasoning, there becomes a time where it is justified to increase residential dwelling densities further. However, if that is to be the case, the appropriate and fair process for that to occur is through the Plan Amendment procedure setout in the Act, involving extensive community consultation and both Council and ministerial/State Government approval. Individual development applications would then be based on and respond appropriately to the relevant Development Plan guidelines of the day.
26	In this matter, applying the relevant guidelines in the locality context, the existence of one pair of semi-detached dwellings with a likely similar (if not identical) average dwelling density of 360 square metres (on the evidence, likely to have been approved by the Council prior to the current zoning/policy regime), or other redevelopment outside the locality located to the east along Rockdale Avenue, are insufficient departures to the predominant and the desired dwelling density character as sought by the Development Plan and relevant Zone and Policy Area provisions. The proposed density and new small allotment is not consistent with that in the defined locality. The departures do not provide a sufficient basis to warrant overriding or under-weighting Policy Area 8 Principle 1 or Zone Objective 1 and Principle 1, or Policy Area 8 Desired Character paras.8 and 10.
27	I consider that the variances to dwelling density guidelines alone are sufficient to warrant rejection of both proposed developments (A) and (B). However, there are also three other aspects that are worthy of comment.
28	Firstly, I comment on the proposed site coverage of the proposed dwelling on its site (some 38 percent) and without any vehicle garaging proposed, which if it were to eventuate later, as in my view is moderately likely, would increase coverage to some 42 percent; and the site coverage arising for the existing dwelling on its reduced site area of some 53 percent (though acknowledging the extent of open sided, roofed verandah, carport, porch areas), compared to the guidelines in Council Wide Principle 26 (c)(i) of 40 percent and Residential (Central Plains) Policy Area 8 Desired Character para.10, third sentence. These departures lend support to an assessment that the site area available is too small to accommodate the proposed modest sized dwelling and that a perception of over development of roofed, built form may arise.
29	Secondly, I comment on the issue of proposed building setbacks to existing or proposed boundaries, having regard to the guidelines in Council Wide Principle 18, second (a)(iii) and (b), and Principle 19, second (a) and (d); and Residential (Central Plains) Policy Area 8, Principle 3.
30	The existing dwelling would have a new rear setback to the proposed boundary of 1 metre to the verandah and about 4 metres to the rear of the dwelling wall, in comparison to the guideline of 5 metres. The proposed dwelling would have acceptable front and side setbacks (given the guidelines and the corner site nature of the subject land as a whole), but will have a rear setback of 1.5 metres compared to the guide of 5 metres. Generous rear setbacks are envisaged to be retained and preserved having regard to the Desired Character para.6, second sentence, and Policy Area 8 Principle 3(a).
31	Again, the practical effect of the minimal rear setback to both the existing and proposed dwelling is a visual perception of over development and lack of space around the buildings.
32	As an aside, and though no evidence was presented to the Court on this aspect, I would have grave reservations about consent being granted to a new dwelling that is to be sited less than 1.5 metres from the trunks of two large, robust Eucalyptus trees. Greater rear setback of the proposed dwelling is also required on this account (having regard to Council Wide Principles 28 (a)(b), 149 and 150).
33	Thirdly, I comment on the issue of adequacy of private open space. I find acceptable the amount of private open space proposed for the new dwelling, having regard to Council Wide Principle 17, however in providing such space, particularly on the northern side of the proposed dwelling, the private open space for the existing dwelling is heavily comprised at its rear. This deficiency is not critical given the extent of remaining outdoor space both under roofed verandahs or pergola areas and in the semi-screened front garden area.
34	In all other respects, including retention of the existing dwelling, the proposed dwelling form, style and appearance, proposed fencing, vehicle access and parking and other functional aspects, I consider the proposed dwelling to be acceptable. Visual amenity of the rear of the subject land, corner block, is likely to be improved, but that is not sufficient to override or under-weight the central desired dwelling density and other character guidelines.
35	I acknowledge the genuine need and reasoning of the appellant for the proposals. If the matter, and in particular the residential dwelling density had been finely balanced, it may have been appropriate to place more weight on those needs and the broad provisions of the Plan, such as Metropolitan Adelaide Objectives 6, 7 and 8, and Council Wide Objective 16. That is not the case. It is for the appellant to consider all other options available to her and including the opportunity for dependent relative accommodation as envisaged by Council Wide Principle 30.