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Murray v Adelaide Hills Council & Anor [2005] SAERDC 59 (11 July 2005)

Last Updated: 12 July 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.

MURRAY v ADELAIDE HILLS COUNCIL & ANOR

Judgment of Commissioner Green

11 July 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - third party appeal - conditional approval by the Council - proposed farm building (farm storage, two stabling areas for occasional/emergency use, feed/tack rooms) and two water storage tanks - Watershed (Primary Production) Zone and Rural Landscape Policy Area - proposed land use, zone and policy area intentions, siting, design and appearance of proposed building, stormwater and effluent disposal all considered - proposal sufficiently meets Development Plan warranting conditional Provisional Development Plan Consent - appeal dismissed - decision of the Council upheld on the basis of varied plans and conditions of consent.
Development Act 1993, referred to.

MURRAY v ADELAIDE HILLS COUNCIL & ANOR
[2005] SAERDC 59

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter comprises a third party appeal against the decision of the Adelaide Hills Council ("the Council"), to conditionally grant provisional development plan consent to Development Application No. 473/833/2004, made under the Development Act 1993, by the joined respondent, for an implement shed (incorporating horse stables) and two water storage tanks, at Bradbury. The Council’s consent was subject to 12 conditions set out in Exhibit R1 at pp32-33.
2 A summary of some of the relevant details in this matter is as follows:

Registration date of application:	24 August 2004
Subject land address:	(Section 342) Longwood Road, Bradbury
Existing use:	Detached dwelling and farming (grazing and hay crop) with associated outbuildings and structures and native vegetation
Proposal (amended):	Erect a farm building (farm storage, stabling areas for occasional-emergency horse use, feed/tack rooms) and two water storage tanks
Relevant authority:	Adelaide Hills Council
Relevant Development Plan:	Adelaide Hills Council consolidated version 11 September 2003
Relevant Zone/Area:	Watershed (Primary Production)/Rural Landscape Policy Area
Date of decision:	8 February 2005 (received 14 February 2005 by appellant)
Appeal lodged:	1 March 2005
Conference concluded:	30 March 2005

3 The Court viewed the subject land and the locality on the morning of Tuesday, 17 May 2005, in the presence of the parties. Witnesses providing evidence to assist the Court comprised the appellant (with respect to her views on the Development Plan and its interpretation and her concerns and objections to the proposal on the basis of impact to visual amenity and character of the locality by reason of the size, scale and siting of the outbuilding and as to its style); Mr P Mickan MPIA, a qualified town planner, employed by the Council as its Senior Statutory Planner (refer Exhibit R2); and the second respondent applicant Ms S Rowe (providing details concerning the proposal and factors in its favour).
4 I also note in the copy documents, Exhibit R1, pp20-25, the report and recommendation of approval to the application by Ms S Fawcett, a Statutory Planner employed by the Council.

The Subject Land

5 The subject land comprises section 342, Hundred of Noarlunga, contained in Certificate of Title Volume 5168 Folio 751. As described by Mr Mickan "The property is essentially rectangular in shape orientated with the longest boundary running east/west. It has a frontage of 36.61 metres to Longwood Road and 329.31 metres to an unnamed Government road [on its northern side]. With an average depth of approx. 210 m, the site has a site area of 8.093 hectares. The rear [southern] boundary of 362 metres abuts Bradwood Park which contains extensive native vegetation and sporting facilities fronting Bradbury Road".
6 The site contains a high point at its western end and slightly to the south-western corner with a low ridge extending to the east and with gentle slopes extending in a north-easterly and south-easterly direction. Approximately half of the land contains indigenous vegetation.
7 The land is used for "rural living" and grazing (2-4 sheep; 3 horses and a pasture hay crop planted, with 4 paddocks in total). Animals graze on pastures for the majority of the year but are supplementary fed in tubs about the home paddock in dry/drought conditions as at present. A group of buildings and structures is located in the north-eastern corner on flatter land below the high point, comprising a moderate to large dwelling, domestic shed (approximately 6 metres by 8 metres) and tennis court, gardens and with a derelict stone cottage (used for storage of hay/feed and tack), yards for animals and a flat area to the east of the proposed siting of the farm building, apparently used for ménage.
8 Between the proposed siting of the building and the northern boundary is an intermittent row of trees – gums, wattles and pines – adjacent and along the unnamed road reserve, which itself is also moderately well treed.
9 The proposed siting of the building is on a relatively flat area, with minor fill and cut and a low (less than 1 metre) masonry block unit retaining wall along the southern side which is some constraint to siting or shifting the proposed building further southward.

The Proposal

10 The proposal placed before the Court (Exhibit A – copy in attachment 1), represents an amended proposal post the Council decision, but I find that the amendments (both in the physical form of the building, made marginally smaller in most dimensions than approved by the Council, storage description and use of it), to be minor, not changing the essential purpose or nature of the proposal and able to be properly considered by the Court.
11 The proposal is to erect what has been described as an "American barn–style" building which incorporates one main centre structure (4.2 metres to the eaves height and 5.0 metres to the apex of the roof ridge) with an attached lean-to portion on each side with 2.82 metre side walls and having an overall width of 12 metres and an overall length of 20 metres to be coloured "Wilderness", a light gum-green colour and "Classic Cream"; and to provide two 27,000 litre water storage tanks (3.9 metre diameter, 3.8 metre height and of polyethylene and also coloured "Wilderness"), to be located to the eastern corners (or rear as viewed from Longwood Road), of the proposed building.
12 The proposed building is to be setback 11 metres from the northern boundary (unnamed Government road) and approximately 80 metres from the Longwood Road frontage. The site for the building is already levelled and no additional access is proposed or required, with the current driveway servicing the existing dwelling and to also service the proposed building. Wide and adequate areas are available for manoeuvring of vehicles in a central position.
13 Indicative, not detailed landscaping was shown as part of the proposal plans (Exhibit R1, p7) and there is a general intention to plant further screening vegetation north of the proposed building between it and the northern boundary. Such screening was also required by condition of consent including a requirement for a 1 metre high earth mound to assist in the screening of the proposed shed and other general planting, presumably to other directions (refer Exhibit R1, pp32-33).
14 Stormwater collected on the roof of the proposed building is to be directed and stored in the two proposed rainwater storage tanks for the use of the owners for domestic and fire-fighting purposes.
15 The proposed building is to be used primarily for storage associated with farming (such as fodder, including hay grown on the land, tack and feed rooms, a slasher, a ride-on mower, quad motor bike, horse float, 4-wheel drive ute, fencing materials and equipment), a van used in the plumbing business of the applicant’s husband and two small stabling areas. With regard to the latter, on the evidence of Ms Rowe, horses are only to be brought in to the "stable" area on a casual, occasional basis if a horse is in poor health or for other emergencies, not for the regular stabling or hand feeding of the horses.
16 The nature of the proposal is determined to be for a Farm Building as defined in Schedule 1 of the Regulations, given its primary purpose and use and the minor nature and extent of other activities intended to be carried out within it, generally in support of the existing farming (grazing and cropping) use of land, and not an implement shed as described by the Council, together with two water storage tanks.
17 Pursuant to Principle of Development Control 62 of the relevant Zone, these forms of development are excluded from being non-complying development and are therefore to be assessed on their merits against the Development Plan guidelines.

The Locality

18 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 definition in this matter is to be based primarily on visual and character perception factors. Having regard to that generally defined and described by Mr Mickan, an expert town planner, and noting that the circular defined area put forward by Ms Murray is too extensive, particularly to the south, it is defined to extend northward to approximately the intersection with Ridge Road, a distance of some 250 metres, in the east and south not beyond the subject land boundary, in the south-west for a distance of perhaps 250 metres and in the west and north-west a distance of perhaps 150-200 metres, with all such land being within the Watershed (Primary Production) Zone, except for the vegetated parcel to the south-east owned by the Council, in the Public Purpose Zone.
19 The subject land and its locality are located some 800-900 metres south of the Longwood settlement focus and perhaps some 1.2 kms north of the Bradbury settlement focus.
20 Land use in the locality comprises a mix of rural activities (mostly animal raising, horse keeping, animal husbandry and with some cropping), associated dwellings, buildings and structures; some dwellings (with two nearby to the north, including the appellant’s and one to the west) on small allotments of some 1800-2000 square metres, with associated outbuildings, comprising residential use only; and some vacant parcels both vegetated and cleared. The description by Mr Mickan, and material provided by the appellant (Exhibit A2) are useful.
21 In general, residential and rural buildings are located relatively close to Longwood Road. Residential outbuildings are of typical, small domestic size and scale, whilst rural buildings are generally relatively small (70 to 80 square metres) on the estimates of the appellant. Land parcels vary from the smaller ones mentioned to others of some 2-4 hectares and others up to 10 hectares in area.
22 Topography is undulating and hilly with valleys feeding dams. Rural views are obtained in part from private land and from Longwood Road. Vegetation is mostly indigenous, but with pines and some other exotic species also occurring.
23 Visual amenity levels are high, marred only by some man made features. The locality has a mixed rural-natural landscaped character, with buildings mostly partially hidden from view and not the dominant element and with substantial areas of indigenous vegetation or cleared land mostly used for grazing.

Relevant Development Plan Provisions

24 I have considered the various provisions referred to by the parties and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter.

COUNCIL WIDE
Objectives: 1, 4, 9, 65, 91, 92, 94, 108 and 109; and
Principles of development control: 1-3, 7, 8 10, 15, 28, 31, 32, 34, 175, 177, 179, 180, 225-228, 230-232, 242, 246, 289 and 290.

WATERSHED (PRIMARY PRODUCTION) ZONE
Objectives: 3 and 5; and
Principles of development control: 1-3, 6, 8, 9, 12, 13, 35-37, 38(c), 39-41, 44, 45 and 62.

Rural Landscape Policy Area
Objectives: 1-5; and
Principles of development control: 1, 2 and 6.

MAPS
AdHi/1 (Overlay 1), AdHi/3, 38 and 85; and Figure MtLRWA/2.

Processing

25 The proposal was categorised by the Council as a Category 3 development and the documents show that one representation (that of the appellant) was received by the Council. In addition, it would appear that no referrals to any government agencies were required pursuant to Schedule 8 of the Regulations.

Planning Assessment

26 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.
27 In terms of s35 and the provisions of the relevant Development Plan, particularly the Watershed (Primary Production) Zone and Rural Landscape Policy Area policies, the proposal is neither a complying nor a non-complying development. It is therefore for consideration on its merit 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 (and Rural Landscape Policy Area). Ultimately, a planning judgment is to be made on whether the development sufficiently meets the Development Plan and having regard to all relevant factors, warrants consent.

Land Use and Zoning/Policy Area Intentions

28 The existing use of the land (rural activities, residential and indigenous vegetation), is not proposed to be changed. It accords generally with the land use policies for the Rural Landscape Policy (Objectives 1 and 2, and Principles 1 and 2) and with the Watershed (Primary Production) Zone Objective 3 and Principles 38(c), 39-41, 44 and 45), though the horse grazing rate of 1 horse per 3 hectares is , on an overall basis, marginally exceeded.
29 The proposed farm building is associated with and supportive of rural activities on the land and will not utilise or remove land currently used for primary production.
30 The evidence is that the stabling element within the farm building is for occasional (not regular) and emergency use involving the horses kept on the land. In the light of Zone Principle 38(c), discouraging the establishment of new stables, its use can be regulated and controlled by condition of consent to ensure that what is proposed in terms of use is not formalised as stables, or expanded upon or the limitations set out by the applicant, ignored.
31 In principle and on a land use and zone/policy area intention basis, the proposal is acceptable, ignoring for the moment the issue of design, size and siting and impacts on visual amenity and character of the locality.
32 In a general sense, the question of whether justification of the need for the farm building or a building of a particular size is not expressly guided or controlled by the Development Plan provisions. Initially it is a choice of the owner. There is no Development Plan requirement or guide to correlate the size of building chosen with the size of the rural holding or the nature or extent of activities undertaken (as appeared to be the view of the appellant and from her work in Exhibit A2), or any guide with respect to the specific numbers of buildings or outbuildings on a site. I consider that the erection of one farm building is appropriate and necessary for (efficient) farm management having regard to Zone Principle 36. Together with the existing domestic garage and dilapidated cottage, they comprise a limited number of outbuildings in the terms of Zone Principle 6.
33 Of course the question of generally limiting building numbers, clustering and grouping buildings and their design, scale, siting, visibility and fit within the site and locality contexts and impact on the character and amenity of the locality are central assessment factors given the Development Plan guidelines and are further discussed hereafter.
34 With regard to the water storage tank, the collection, storage and re-use of stormwater run-off is encouraged by Council Wide Objective 9 and Principle of Development Control 28, Zone Principle 3(a) and the Rural Landscape Policy Area Principle 5, and it is expressly excluded from being non-complying development in the Zone.

Visual Amenity and Character

35 There are numerous, in some cases duplicative guidelines with the Development Plan concerning this central assessment issue for the proposed development, indicating the emphasis on these considerations in the Plan. It was noted that Zone Principles 9 and 37 are identical, that Council Wide Objectives 91 and 92 effectively say the same thing as Principles 228 and 230 respectively and I find that the degree of repetition in the Plan creates some confusion and does not add to clarify in terms of policy intent. The most relevant guiding provisions are contained in attachment 2.
36 Condensing and distilling the intent of the various relevant provisions, I note many references to "not impair", "not detract from", "not visually interfere", "preserve", "be compatible", "complement", "in keeping", "blend with", "enhance", "improve", with relation to visual amenity, and the scenically attractive and beauty of the natural and rural character of the Zone and Policy Area, each to be applied in the locality context. There is a strong emphasis on built form being unobtrusive and being screened to private and public views by existing vegetation or further landscaping, by land form or new mounding. Careful siting and a high standard of design are also sought.
37 Firstly, with respect to siting, I am satisfied with the setbacks from road boundaries (70-80 metres from Longwood Road and 11 metres from an unnamed, dead-end, graveled Government road, as well as some 37 metres separation from the appellant’s dwelling to the north); the proximity and grouping or clustering of this building with the existing buildings on the site (within perhaps a 20-50 metre radius centered on the gravel driveway turning areas); the siting of this building below the ridgeline and high point to the south, not in a generally sky-lined position; and the position benefiting from partial screening by existing site and road reserve vegetation.
38 Secondly, the building is to be set down on a marginally cut (but less than 1 metre) and filled (but less than 0.5 metres) site to reduce its visual impact and such excavation is not extensively visible and is already retained by a low masonry block wall.
39 Thirdly, the external materials and colours selected are of low reflectivity and are appropriate colours relating to the natural environment and to enhance unobtrusiveness.
40 Fourthly, new additional screen landscaping is proposed along the northern side of the proposed building and together with a low mound, sought by Council’s condition 8 (and 9) of consent, it is likely to maximise unobtrusiveness and enhance visual amenity (once vegetation matures).
41 Fifthly, the style of the building is not so out of character with the varied styles of buildings in the locality to be rejected on that basis. That might be appropriate if a very consistent style and architectural vernacular were present and evident in the locality. The Plan indicates no particular style is envisaged for farm buildings.
42 Sixthly, whilst the size (mathematical dimensions), mass (volume and bulk) and scale (perceived in its siting and spatial contexts) of the building are greater than most, if not all other farm buildings or outbuildings in the locality or adjacent buildings, those characteristics are similar to a dwelling envisaged in the Zone and Policy Area and they are not to be unexpected in the rural Zone and Policy Area (in the light of provisions envisaging rural industrial and tourist uses and buildings such as Zone Principles 11, 46, 47, 57, 61 and others). In addition, the building has a relatively low profile and acceptable roof angles and it is articulated to "break up" the perception of building mass, and this aspect is to be considered in the light of its siting, excavation, external materials and colours, existing vegetation and new landscaping screening.
43 I conclude, on a consideration of and integration of all relevant Plan guidelines and in the locality and site context, and subject to a condition requiring further detailing of landscaping about the proposed building, that it will not be intrusive, that it will sufficiently blend with the rural and natural character of the locality and that visual amenity will be preserved and enhanced to a sufficient degree.

Effluent (Animal Waste) Disposal

44 Whilst not a central issue or one raised by the Council or the appellant, but with the Court hearing the matter de novo, given the casual, emergency use only of the stabling part of the proposed building, it is appropriate that adequate physical (floor surface and drainage) and management provisions are made and undertaken so that the discharge, collection and disposal of animal waste (albeit at expected low levels) are appropriately controlled. This is even more the case given the location of the land within the Mt Lofty Ranges Watershed (Figure MtLRWA/2) and protection provisions against water pollution.
45 Accordingly, I consider that it is appropriate and necessary to attach a condition of consent to guide and regulate such activity, the wording of which I will be guided upon by the further submissions of the parties.

Conclusions

46 I have carefully considered the evidence, what I saw on the view and the amended proposal details. I have done so and made an assessment of the proposal against all of the relevant Development Plan provisions and the Plan as a whole, weighing up the pros and cons in the site and the locality context, distilling and considering the intent and desired character of the relevant Zone and Policy Area. I have come to the conclusion that the amended proposal sufficiently meets the Development Plan to warrant the granting of conditional provisional development plan consent.
47 I issued a Memorandum to the parties on 7 June 2005 wherein I advised of the above conclusions and assessment, and sought further submissions from the parties concerning conditions of consent for the farm building and water storage tanks.
48 At the resumed hearing, further submissions and draft conditions were placed before the Court and I have given consideration to the further submissions of both the Council and the appellant.

Decision

49 The third party appeal is dismissed and the decision of the Council is upheld on the basis of amended plans and varied conditions, such that provisional development plan consent is granted subject to the following conditions:

1. The Development shall be undertaken in accordance with the plans, drawings, specifications and other documents submitted with and forming part of Development Application No. 473/833/2004 including the plans dated 25 October 2004 contained in Exhibit R1 at pp7-12 and the documents marked Exhibit A (attached hereto) except where varied by the following conditions.

2. The external finishes to the building herein approved shall be in accordance with the materials as specified in the application now approved and of the following colours:

WALLS: Colorbond Wilderness Green

ROOF: Colorbond Wilderness Green

DOOR: Classic Cream

TRIM: Colorbond Wilderness Green

3. During the construction of the development, hay bales (or other soil erosion control methods as approved by the Council in writing) shall be placed above and below the excavated site to prevent soil moving beyond the boundaries of the subject land during periods of rainfall.

4. Management of the property during construction of the development approved herein and subsequent to construction shall be undertaken in such a manner as to prevent denudation, erosion or pollution of the environment.

5. Roof drainage water shall be connected to and disposed of to the two 27,000 litre water storage tanks within one month of the roof cladding being installed.

6. To prevent erosion, overflow from rainwater tanks is to be treated on the subject land to the written satisfaction of Council, using design techniques such as:

(a) grassed swales; and/or
(b) stone-filled trenches; and/or
(c) small infiltration basins; and/or
(d) a constructed water feature.

7. The building shall not be used for human habitation, commercial or industrial purposes or for the regular stabling of horses or other animals with the exception that it may be used for the stabling of horses in emergencies or on a casual, temporary basis. Human habitation includes overnight and weekend accommodation.

8. A landscaping plan shall be submitted to and approved by Council in writing prior to the issue of Development Approval. The said landscaping plan shall incorporate:

(a) a landscape buffer strip of at least two metres in width that is mounded to a height of one metre and planted with a dense screen of shrubs and trees, along the Government Road boundary of the subject land north of the proposed building;

(b) the additional vegetation and low one metre mounding on the northern side of the proposed building and adjacent the northern boundary vegetation referred to in (a), shall extend for the length of the building and three metres beyond it, at either end of the building;

(c) additional planting to the eastern and southern sides of the proposed building as per the principles outlined in Condition 9; and

(d) nomination of species, sizes at planting and numbers.

9. The additional trees, shrubs and mounding to be incorporated in the landscaping plan referred to in Condition 8 shall be undertaken and planted in the first available planting season after completion of the building and maintained to the reasonable satisfaction of the Council at all times in such a way as to reduce the visual impact of the development when viewed from the surrounding locality. Where stock (including horses) are grazed on the subject land, stock-proof fences shall be erected around all plantings.

10. Any animal manure within the building shall be collected promptly twice daily and liquid waste appropriately absorbed or drained/collected and solid and liquid wastes shall be stored or disposed of all to the reasonable satisfaction of the Council and/or relevant catchment management body.

50 There will be an order to that effect.

Attachment 2

Relevant Development Plan provisions – visual amenity and character assessment.
RURAL LANDSCAPE POLICY AREA
.....
Objective 3: A scenically attractive rural character.

Objective 4: A pleasant rural character derived from the retention of existing flora and fauna, including significant stands of vegetation.
PRINCIPLES OF DEVELOPMENT CONTROL
.....

6 Buildings should be of a high standard of design, with respect to external appearance, choice of materials and colours. Buildings should be sited to blend with, preserve and enhance the character and amenity of the locality.

WATERSHED (PRIMARY PRODUCTION) ZONE
.....

Objective 5: The enhancement of the amenity and landscape of the south Mount Lofty Ranges for the enjoyment of residents and visitors.

PRINCIPLES OF DEVELOPMENT CONTROL
Form of Development

1 Buildings, should be located in unobtrusive locations and, in particular, should:
(a) be located well below the ridge line;
(b) be located within valleys or behind spurs;

(c) be located not to be visible against the skyline when viewed from public roads and especially from the Mount Lofty Ranges Scenic Road;

(d) be set well back from public roads, particularly when the allotment is on the high side of the road;

(e) be sited on an excavated rather than a filled site to reduce the vertical profile of the building;

(f) where possible be screened by existing native vegetation when viewed from public roads and especially from the Mount Lofty Ranges Scenic Road; and

(g) maximize the retention of existing native vegetation and the protection and retention of watercourses in their natural state.

2 Buildings should be unobtrusive and not detract from the desired natural character of the Zone and, in particular:

(a) the profile of buildings should be low and the roof lines should complement the natural form of the land;

(b) the mass of buildings should be minimized by variations in wall and roof lines and by floor plans which complement the contours of the land; and

(c) large eaves, verandahs and pergolas should be incorporated into designs to create shadowed areas which reduce the bulky appearance of buildings.
.....

6 The number of outbuildings should be limited, and where appropriate they should be grouped together, located in unobtrusive locations and comply with the previously mentioned principles of development control relating to the location and design of buildings.

.....

8 Native trees, shrubs and ground covers should be established to screen development, including scree slopes created as a result of the excavation and/or filling of land, in such a way that the bushfire hazard is not increased. Screening mounds may also be appropriate.

9 Buildings should not impair the character of rural areas by reason of their scale or siting. If necessary buildings should be screened by trees or shrubs.

.....

12 Development should not detract from the natural and rural landscape character of the region.

13 The rural character, comprising natural features and man-made activities, should be preserved by careful siting, design and landscaping of new building development and/or intensive land uses.

.....

35 Trees, other vegetation and earth mounding should be retained or provided as part of the development where the environment will be visually improved by such a provision.

36 Buildings and structures which are necessary for efficient farm management should, as far as possible, be located to form part of existing homestead clusters.

37 [identical to Principle 9.]

.....
COUNCIL WIDE

RURAL DEVELOPMENT
.....

Objective 65: The retention of rural areas primarily for forestry, primary production and conservation purposes and the maintenance of the natural character and rural beauty of such areas.

.....

Objective 91: The amenity of localities not impaired by the appearance of land, buildings and objects.

Objective 92: Buildings or structures unobtrusively sited and of a character and design which blends naturally with the landscape.

Existing substandard buildings, abandoned structures and disused quarry sites should be removed, renovated or screened to improve the quality of the landscape.
.....

Objective 94: Development in urban and rural areas in keeping with appearance and character of those areas.

PRINCIPLES OF DEVELOPMENT CONTROL
.....
8 The excavation and/or filling of land should:

(a) be kept to a minimum and be limited to no greater than 1.5 metres to preserve the natural form of the land and the native vegetation;

(b) only be undertaken to reduce the visual impact of buildings, including structures, or to construct water storage facilities for use on the allotment;

(d) result in stable scree slopes which are covered with top soil and landscaped to preserve and enhance the natural character or assist in the re-establishment of the natural character.
.....

34 Other than in Centre zones buildings and structures should be set-back a minimum of eight metres from the road boundary of an allotment. Where an allotment has multiple road frontages, buildings and structures should be set-back a minimum of eight metres from the major road and 2.5 metres from the minor road(s).

.....

225 Development should take place in a manner which will not visually interfere with the achievement of the objective for an area or, otherwise the existing character of scenically or environmentally important areas, or areas which are prominently visible from other land or which are frequented by the public.

226 Development should take place in a manner which will minimize alteration to the existing land form.

227 Excavation and earthworks should take place in a manner that is not extensively visible from surrounding localities.

228 The appearance of land, buildings and objects should not impair the amenity of the locality in which they are situated. [very similar to Objective 91.]
.....

230 Buildings should be sited unobtrusively and be of a character and design which will blend naturally with the landscape. [very similar to Objective 92.]

231 No development should impair:

(a) the natural character of the south Mount Lofty Ranges; or
(b) he skyline of the south Mount Lofty Ranges.

232 The external materials of buildings should:

(a) have surfaces which are of a low light-reflective nature; and

(b) be of natural colours so as to be unobtrusive, blend with the natural rural landscape and minimize any visual intrusion.
.....

242 Development should be compatible with the character of existing buildings in the locality, and exhibit a high standard of design and external appearance, which takes into account the scale, mass and siting of buildings, the materials to be used (including their texture and colour), and elements of building detail.

.....

246 The erection, alteration or conversion of any building should be undertaken only if it complements or enhances the scale, character and design of development in the locality and the siting of buildings on adjoining allotments.

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5	The subject land comprises section 342, Hundred of Noarlunga, contained in Certificate of Title Volume 5168 Folio 751. As described by Mr Mickan "The property is essentially rectangular in shape orientated with the longest boundary running east/west. It has a frontage of 36.61 metres to Longwood Road and 329.31 metres to an unnamed Government road [on its northern side]. With an average depth of approx. 210 m, the site has a site area of 8.093 hectares. The rear [southern] boundary of 362 metres abuts Bradwood Park which contains extensive native vegetation and sporting facilities fronting Bradbury Road".
6	The site contains a high point at its western end and slightly to the south-western corner with a low ridge extending to the east and with gentle slopes extending in a north-easterly and south-easterly direction. Approximately half of the land contains indigenous vegetation.
7	The land is used for "rural living" and grazing (2-4 sheep; 3 horses and a pasture hay crop planted, with 4 paddocks in total). Animals graze on pastures for the majority of the year but are supplementary fed in tubs about the home paddock in dry/drought conditions as at present. A group of buildings and structures is located in the north-eastern corner on flatter land below the high point, comprising a moderate to large dwelling, domestic shed (approximately 6 metres by 8 metres) and tennis court, gardens and with a derelict stone cottage (used for storage of hay/feed and tack), yards for animals and a flat area to the east of the proposed siting of the farm building, apparently used for ménage.
8	Between the proposed siting of the building and the northern boundary is an intermittent row of trees – gums, wattles and pines – adjacent and along the unnamed road reserve, which itself is also moderately well treed.
9	The proposed siting of the building is on a relatively flat area, with minor fill and cut and a low (less than 1 metre) masonry block unit retaining wall along the southern side which is some constraint to siting or shifting the proposed building further southward.

10	The proposal placed before the Court (Exhibit A – copy in attachment 1), represents an amended proposal post the Council decision, but I find that the amendments (both in the physical form of the building, made marginally smaller in most dimensions than approved by the Council, storage description and use of it), to be minor, not changing the essential purpose or nature of the proposal and able to be properly considered by the Court.
11	The proposal is to erect what has been described as an "American barn–style" building which incorporates one main centre structure (4.2 metres to the eaves height and 5.0 metres to the apex of the roof ridge) with an attached lean-to portion on each side with 2.82 metre side walls and having an overall width of 12 metres and an overall length of 20 metres to be coloured "Wilderness", a light gum-green colour and "Classic Cream"; and to provide two 27,000 litre water storage tanks (3.9 metre diameter, 3.8 metre height and of polyethylene and also coloured "Wilderness"), to be located to the eastern corners (or rear as viewed from Longwood Road), of the proposed building.
12	The proposed building is to be setback 11 metres from the northern boundary (unnamed Government road) and approximately 80 metres from the Longwood Road frontage. The site for the building is already levelled and no additional access is proposed or required, with the current driveway servicing the existing dwelling and to also service the proposed building. Wide and adequate areas are available for manoeuvring of vehicles in a central position.
13	Indicative, not detailed landscaping was shown as part of the proposal plans (Exhibit R1, p7) and there is a general intention to plant further screening vegetation north of the proposed building between it and the northern boundary. Such screening was also required by condition of consent including a requirement for a 1 metre high earth mound to assist in the screening of the proposed shed and other general planting, presumably to other directions (refer Exhibit R1, pp32-33).
14	Stormwater collected on the roof of the proposed building is to be directed and stored in the two proposed rainwater storage tanks for the use of the owners for domestic and fire-fighting purposes.
15	The proposed building is to be used primarily for storage associated with farming (such as fodder, including hay grown on the land, tack and feed rooms, a slasher, a ride-on mower, quad motor bike, horse float, 4-wheel drive ute, fencing materials and equipment), a van used in the plumbing business of the applicant’s husband and two small stabling areas. With regard to the latter, on the evidence of Ms Rowe, horses are only to be brought in to the "stable" area on a casual, occasional basis if a horse is in poor health or for other emergencies, not for the regular stabling or hand feeding of the horses.
16	The nature of the proposal is determined to be for a Farm Building as defined in Schedule 1 of the Regulations, given its primary purpose and use and the minor nature and extent of other activities intended to be carried out within it, generally in support of the existing farming (grazing and cropping) use of land, and not an implement shed as described by the Council, together with two water storage tanks.
17	Pursuant to Principle of Development Control 62 of the relevant Zone, these forms of development are excluded from being non-complying development and are therefore to be assessed on their merits against the Development Plan guidelines.

18	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 definition in this matter is to be based primarily on visual and character perception factors. Having regard to that generally defined and described by Mr Mickan, an expert town planner, and noting that the circular defined area put forward by Ms Murray is too extensive, particularly to the south, it is defined to extend northward to approximately the intersection with Ridge Road, a distance of some 250 metres, in the east and south not beyond the subject land boundary, in the south-west for a distance of perhaps 250 metres and in the west and north-west a distance of perhaps 150-200 metres, with all such land being within the Watershed (Primary Production) Zone, except for the vegetated parcel to the south-east owned by the Council, in the Public Purpose Zone.
19	The subject land and its locality are located some 800-900 metres south of the Longwood settlement focus and perhaps some 1.2 kms north of the Bradbury settlement focus.
20	Land use in the locality comprises a mix of rural activities (mostly animal raising, horse keeping, animal husbandry and with some cropping), associated dwellings, buildings and structures; some dwellings (with two nearby to the north, including the appellant’s and one to the west) on small allotments of some 1800-2000 square metres, with associated outbuildings, comprising residential use only; and some vacant parcels both vegetated and cleared. The description by Mr Mickan, and material provided by the appellant (Exhibit A2) are useful.
21	In general, residential and rural buildings are located relatively close to Longwood Road. Residential outbuildings are of typical, small domestic size and scale, whilst rural buildings are generally relatively small (70 to 80 square metres) on the estimates of the appellant. Land parcels vary from the smaller ones mentioned to others of some 2-4 hectares and others up to 10 hectares in area.
22	Topography is undulating and hilly with valleys feeding dams. Rural views are obtained in part from private land and from Longwood Road. Vegetation is mostly indigenous, but with pines and some other exotic species also occurring.
23	Visual amenity levels are high, marred only by some man made features. The locality has a mixed rural-natural landscaped character, with buildings mostly partially hidden from view and not the dominant element and with substantial areas of indigenous vegetation or cleared land mostly used for grazing.

28	The existing use of the land (rural activities, residential and indigenous vegetation), is not proposed to be changed. It accords generally with the land use policies for the Rural Landscape Policy (Objectives 1 and 2, and Principles 1 and 2) and with the Watershed (Primary Production) Zone Objective 3 and Principles 38(c), 39-41, 44 and 45), though the horse grazing rate of 1 horse per 3 hectares is , on an overall basis, marginally exceeded.
29	The proposed farm building is associated with and supportive of rural activities on the land and will not utilise or remove land currently used for primary production.
30	The evidence is that the stabling element within the farm building is for occasional (not regular) and emergency use involving the horses kept on the land. In the light of Zone Principle 38(c), discouraging the establishment of new stables, its use can be regulated and controlled by condition of consent to ensure that what is proposed in terms of use is not formalised as stables, or expanded upon or the limitations set out by the applicant, ignored.
31	In principle and on a land use and zone/policy area intention basis, the proposal is acceptable, ignoring for the moment the issue of design, size and siting and impacts on visual amenity and character of the locality.
32	In a general sense, the question of whether justification of the need for the farm building or a building of a particular size is not expressly guided or controlled by the Development Plan provisions. Initially it is a choice of the owner. There is no Development Plan requirement or guide to correlate the size of building chosen with the size of the rural holding or the nature or extent of activities undertaken (as appeared to be the view of the appellant and from her work in Exhibit A2), or any guide with respect to the specific numbers of buildings or outbuildings on a site. I consider that the erection of one farm building is appropriate and necessary for (efficient) farm management having regard to Zone Principle 36. Together with the existing domestic garage and dilapidated cottage, they comprise a limited number of outbuildings in the terms of Zone Principle 6.
33	Of course the question of generally limiting building numbers, clustering and grouping buildings and their design, scale, siting, visibility and fit within the site and locality contexts and impact on the character and amenity of the locality are central assessment factors given the Development Plan guidelines and are further discussed hereafter.
34	With regard to the water storage tank, the collection, storage and re-use of stormwater run-off is encouraged by Council Wide Objective 9 and Principle of Development Control 28, Zone Principle 3(a) and the Rural Landscape Policy Area Principle 5, and it is expressly excluded from being non-complying development in the Zone.

35	There are numerous, in some cases duplicative guidelines with the Development Plan concerning this central assessment issue for the proposed development, indicating the emphasis on these considerations in the Plan. It was noted that Zone Principles 9 and 37 are identical, that Council Wide Objectives 91 and 92 effectively say the same thing as Principles 228 and 230 respectively and I find that the degree of repetition in the Plan creates some confusion and does not add to clarify in terms of policy intent. The most relevant guiding provisions are contained in attachment 2.
36	Condensing and distilling the intent of the various relevant provisions, I note many references to "not impair", "not detract from", "not visually interfere", "preserve", "be compatible", "complement", "in keeping", "blend with", "enhance", "improve", with relation to visual amenity, and the scenically attractive and beauty of the natural and rural character of the Zone and Policy Area, each to be applied in the locality context. There is a strong emphasis on built form being unobtrusive and being screened to private and public views by existing vegetation or further landscaping, by land form or new mounding. Careful siting and a high standard of design are also sought.
37	Firstly, with respect to siting, I am satisfied with the setbacks from road boundaries (70-80 metres from Longwood Road and 11 metres from an unnamed, dead-end, graveled Government road, as well as some 37 metres separation from the appellant’s dwelling to the north); the proximity and grouping or clustering of this building with the existing buildings on the site (within perhaps a 20-50 metre radius centered on the gravel driveway turning areas); the siting of this building below the ridgeline and high point to the south, not in a generally sky-lined position; and the position benefiting from partial screening by existing site and road reserve vegetation.
38	Secondly, the building is to be set down on a marginally cut (but less than 1 metre) and filled (but less than 0.5 metres) site to reduce its visual impact and such excavation is not extensively visible and is already retained by a low masonry block wall.
39	Thirdly, the external materials and colours selected are of low reflectivity and are appropriate colours relating to the natural environment and to enhance unobtrusiveness.
40	Fourthly, new additional screen landscaping is proposed along the northern side of the proposed building and together with a low mound, sought by Council’s condition 8 (and 9) of consent, it is likely to maximise unobtrusiveness and enhance visual amenity (once vegetation matures).
41	Fifthly, the style of the building is not so out of character with the varied styles of buildings in the locality to be rejected on that basis. That might be appropriate if a very consistent style and architectural vernacular were present and evident in the locality. The Plan indicates no particular style is envisaged for farm buildings.
42	Sixthly, whilst the size (mathematical dimensions), mass (volume and bulk) and scale (perceived in its siting and spatial contexts) of the building are greater than most, if not all other farm buildings or outbuildings in the locality or adjacent buildings, those characteristics are similar to a dwelling envisaged in the Zone and Policy Area and they are not to be unexpected in the rural Zone and Policy Area (in the light of provisions envisaging rural industrial and tourist uses and buildings such as Zone Principles 11, 46, 47, 57, 61 and others). In addition, the building has a relatively low profile and acceptable roof angles and it is articulated to "break up" the perception of building mass, and this aspect is to be considered in the light of its siting, excavation, external materials and colours, existing vegetation and new landscaping screening.
43	I conclude, on a consideration of and integration of all relevant Plan guidelines and in the locality and site context, and subject to a condition requiring further detailing of landscaping about the proposed building, that it will not be intrusive, that it will sufficiently blend with the rural and natural character of the locality and that visual amenity will be preserved and enhanced to a sufficient degree.

46	I have carefully considered the evidence, what I saw on the view and the amended proposal details. I have done so and made an assessment of the proposal against all of the relevant Development Plan provisions and the Plan as a whole, weighing up the pros and cons in the site and the locality context, distilling and considering the intent and desired character of the relevant Zone and Policy Area. I have come to the conclusion that the amended proposal sufficiently meets the Development Plan to warrant the granting of conditional provisional development plan consent.
47	I issued a Memorandum to the parties on 7 June 2005 wherein I advised of the above conclusions and assessment, and sought further submissions from the parties concerning conditions of consent for the farm building and water storage tanks.
48	At the resumed hearing, further submissions and draft conditions were placed before the Court and I have given consideration to the further submissions of both the Council and the appellant.

(a)	grassed swales; and/or
(b)	stone-filled trenches; and/or
(c)	small infiltration basins; and/or
(d)	a constructed water feature.