[Home] [Databases] [WorldLII] [Search] [Feedback]

Environment Resources and Development Court of South Australia Decisions

You are here: AustLII >> Databases >> Environment Resources and Development Court of South Australia Decisions >> 2006 >> [2006] SAERDC 19

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Keihani v City of Burnside [2006] SAERDC 19 (17 February 2006)

Last Updated: 21 February 2006

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.

KEIHANI v CITY OF BURNSIDE

Judgment of Commissioner Hodgson

17 February 2006

LOCAL GOVERNMENT - TOWN PLANNING

Appeal against refusal of Provisional Development Plan Consent – applications to divide existing allotment and to construct a two-storey detached dwelling on each resultant allotment – Residential Zone – Policy Area 2 – whether "distinctive and attractive streetscape" exists – whether proposed development complements scale, bulk, siting and positive elements of existing dwellings – proposal achieves satisfactory relationship with adjoining dwellings and streetscape of locality – appeal upheld – Provisional Development Plan Consent granted, subject to conditions.
Development Act 1993, referred to.
Lee v City of Mitcham [2003] SAERDC 55; Alan Sheppard Homes Pty Ltd v City of Burnside and Others ERDC No. 249 of 1996, considered.

KEIHANI v CITY OF BURNSIDE
[2006] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 These are appeals against two decisions of the City of Burnside ("the Council") to refuse applications under the Development Act 1993 by the Appellants. Some relevant details are set out hereunder:

Application 1

Date of application:	11 October 2004
Subject land:	37 Cuthero Terrace, Kensington Gardens
Existing use:	Vacant
Proposed development:	Land division – creating one additional allotment from one existing
Relevant authority:	City of Burnside
Relevant Development Plan:	Burnside (City) 11 March 2004
Relevant Zone/Area:	Residential (B Policy Area 2)
Date of decision:	20 October 2005
Appeal lodged:	28 October 2005

Application 2

Date of application:	22 April 2005
Subject land:	37 Cuthero Terrace, Kensington Gardens
Existing use:	Vacant
Proposed development:	Two, two-storey detached dwellings
Relevant authority:	City of Burnside
Relevant Development Plan:	Burnside (City) 17 March 2005
Relevant Zone/Area:	Residential (Policy Area 2)
Date of decision:	27 September 2005
Appeal lodged:	29 September 2005

2 At the commencement of proceedings it was noted that the relevant Development Plan for the purpose of Development Application 1 was a different Development Plan to that applicable to Development Application 2. It was common ground between the parties that the only changes to the plan relevant to Application 1 was the insertion of Hills Face Zone provisions and that the policy provisions applicable to the subject land were the same in both plans. It was agreed that for the purposes of the hearing, reference would be made to the Development Plan dated 17 March 2005.

The Subject Land and Locality

3 The land, the subject of this appeal, is situated on the corner of Cuthero Terrace and Mahar Street. The site is generally flat. Cuthero Terrace is a local road of moderate width which serves to connect the site with Glynburn Road to the west. Mahar Street is also a moderately-wide local road and links the site to Magill Road to the north.
4 The subject land is rectangular in shape and is situated on the northeastern corner of the junction of Cuthero Terrace and Mahar Street. It has a frontage to Cuthero Terrace of 16.0m and to Mahar Street of 37.1m. A corner cut-off measuring 4.31m is also provided. The land has a total area of approximately 757.4m², and slopes very gradually from its southeastern to its northwestern corner, the total fall across the site being approximately 1.52m. No significant trees or other vegetation of any consequence is located on the site. An access driveway from Mahar Street (approximately 3.0m in width) is located adjacent to the northern boundary. Adjoining the land to the north and east are single-storey detached dwellings, with an open carport and an outbuilding located along the eastern boundary. Directly to the south, across Cuthero Terrace, is a single-storey residential flat building accommodating four dwellings. Directly across Mahar Street is a single-storey detached dwelling oriented to Cuthero Terrace.
5 Two qualified and experienced planners gave expert evidence in this matter, Mr L Fantasia and Mr J Watson. Each defined a locality for the purpose of his evidence. Both localities took in development on both sides of Cuthero Terrace between Ellerslie Street to the east and West Terrace to the west, and both sides of Mahar Street between Cuthero Terrace and Roslind Street. Mr Fantasia’s locality was somewhat more generalised than Mr Watson’s, taking in development on both sides of Lincoln Street, which intersects with Mahar Street north of Cuthero Terrace, and development extending along Coolibah Avenue and Peroomba Avenue to the south. For the purpose of these proceedings I have adopted the more specific locality defined by Mr Watson.
6 The locality contains a mixture of architectural styles and dwelling types, including:

• Strata titled single-storey residential flat buildings;
• Single-storey interwar villas;

• Recently-constructed single-storey federation style detached dwellings;
• Recently-constructed federation style semi-detached dwellings;

• Contemporary single-storey semi-detached dwellings, which appear to date from the 1970s and 1980s;
• Single-storey post-war bungalows;
• Single-storey "Austerity" detached dwellings; and

• Conventional double-fronted single-storey detached dwellings, which appear to date from the 1950’s and 1960’s.

7 While detached dwellings are the dominant form of development in the locality, higher density development is also evident, there being three examples of semi-detached dwellings within the locality, and four examples of residential flat buildings.
8 The subject land is located within the Residential Zone as depicted on Map Bur/4 in the Development Plan for the City of Burnside dated 17 March 2005. The land is located wholly within Policy Area 2, the southern boundary of which runs east-west along Cuthero Terrace. South of Cuthero Terrace is Policy Area 7. The majority of allotments in the locality are rectangular in shape and typically deep and narrow in form.
9 Side boundary setbacks are fairly consistent throughout the locality, being generally between 1.0m and 1.5m, although there is some evidence also of development to side boundaries, particularly in the form of garaging. Front boundary setbacks to Cuthero Terrace vary, but are predominantly within the range 6.0m to 8.0m. Front boundary set backs along Mahar Street range between 2.5 and 11.0m but are predominantly within the range 6.0m to 8.0m.

Background

10 The Appellant initially submitted an application for land division creating one additional allotment (Development Application 180/1049/04) on 11 October 2004. On the basis of advice from the Council’s administration, a land use application was subsequently submitted for the construction of two two-storey detached dwellings, this application being lodged on 22 March 2005 (Development Application 180/1408/05). This application was refused Provisional Development Plan Consent by Council’s Development Assessment Panel at its August 2005 meeting. Subsequently, the land division application was refused Development Approval on 19 October 2005. Both appeals were heard together.

The Proposal

11 Application 180/0408/05 seeks approval for the construction of two two-storey detached dwellings. The proposal plans tendered in evidence incorporate amendments made subsequent to the decision of the Council.
12 The first proposed dwelling (Dwelling 1) would address the Mahar Street frontage, the other (Dwelling 2) addressing the Cuthero Terrace frontage. Each dwelling would be of a Neo-Georgian appearance, incorporating porticos, pitched roofs at 40deg. and 36deg. respectively, dormer windows, and garaging under the main roof. Upper levels would be located within the roof space. The proposal is depicted in more detail on the proposal plans forming Attachment 1 to this judgment. Those plans incorporate an amendment made to the proposal by the Appellants in the course of the hearing, that amendment entailing the setting back of proposed Dwelling 2 1.0m from the eastern boundary of the subject land.
13 The land division application (DA 180/1049/04) proposes the creation of two allotments from the one existing allotment. Allotment 500 would have an area of 378m² and a frontage of 19.8m to Mahar Street and Allotment 501 an area of 378m² and a dual frontage of 17.0m to Mahar Street and 16.0m to Cuthero Terrace.

The Development Plan

14 As I have said, the subject land is located within Residential Policy Area 2, Northern. The sole objective for that policy area is as follows:

Residential Policy Area 2 – Northern

Objective 1: Maintenance and enhancement of a residential character that is derived particularly from:
(a) dwellings of low-scale and low to medium density, widely varied in age but predominantly of the interwar and post-war periods; and
(b) single-storeyed, detached dwellings and semi-detached dwellings, moderately set-back from road boundaries and similar in scale, that are the dominant built-form features in most streetscapes.

Relevant Policy Area Principles are:

Local Compatibility

Principle 1: Development should complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape character exists.
Site Areas and Frontages
Principle 2: Subject to Principle of Development Control 3, the site area per dwelling of any type (averaged for group dwellings or dwellings in a residential flat building) should be not less than 375 square metres.
Principle 3: A battleaxe, or similarly shaped, allotment should only be created if the head of that allotment has an area of not less than 375 square metres.
Principle 4: A site for the development of a dwelling or dwellings should have a frontage to a public road of not less than:
(a) 12 metres for each detached dwelling;
(b) 14 metres for group dwellings and residential flat buildings, to allow vehicular access to any dwellings towards the rear of the site;
(c) nine metres for each dwelling of any other type.

Private Open Space

Principle 5: There should be a part of the total area of private open space that should be provided with each dwelling, being an outdoor area at ground level that is capable of containing a rectangle measuring not less than four metres by six metres.

15 The erection of a detached dwelling is a consent form of development within the policy area.
16 Of some relevance also are Residential Zone Objectives 1, 2, 3, 5 and 8 and Principles 1, 2, 3, 4 and Council Wide Objectives 5, 6, 9, 14, 15, 16, 17, 22, 23, 27, 29, 51, 52, 53, 54 and 55 and Principles 1, 3, 4, 6, 7, 9, 10, 15, 23, 25, 26, 29, 52, 53, 61, 62, 72, 74, 114, 115, 116, 117, 118, 119, 120, 121, 122, 125, 126, 127, 129, 130, 132, 134, 135, 136, 137 and 146.

Assessment

17 Mr Hilditch, for the Council, acknowledged that the subject proposal largely satisfied the relevant quantitative provisions of the Development Plan. In his submission, however, it failed to satisfy a number of qualitative requirements, such as Council Wide Objective 54 and Principles 25 and 26, inasmuch as the two-storey form of the proposed dwellings called for setbacks from front and side boundaries greater than those prescribed for Policy Area 2 if a satisfactory built form relationship were to be established with adjoining single-storey dwellings. The Appellants were attempting to place too much development on the relatively small allotments proposed.
18 Mr Hilditch also made reference to Zone Principle 2(d), submitting that, if two-storey development was to occur in the zone, its design needed to have regard to siting, mass and proportion, roof form and pitch, façade articulation and detailing and window and door locations and proportions. These factors had been given insufficient attention in the design of the proposed dwellings, and as a consequence, the relationship of those dwellings with adjoining dwellings would be unsatisfactory.
19 Referring to Principle 1 for Policy Area 2, Mr Hilditch submitted that the positive elements of existing dwellings in the locality, which new development was required to complement, included a single-storey, low-scale character and relatively modest roof pitches. To complement these characteristics, new development needed to be of a modest scale, and well-separated from adjacent dwellings.
20 In support of these submissions, Mr Hilditch referred to the evidence of Mr Watson. That evidence was that:

• The bulk and scale of the proposed two-storey dwellings is incompatible with the objective expressed for the Policy Area, as the locality is characterised by predominantly single storey dwellings;
• The proposed allotment dimensions are inconsistent with those witnessed throughout the locality and Policy Area, and this in turn will result in dwellings of a greater bulk;
• The size and shape of the proposed allotments fail to provide appropriate dimensions for the construction of appropriate buildings in terms of the Objectives and Principles of Development Control stipulated for Residential Policy Area 2; and
• The proposal fails to adequately shield the west facing windows with appropriate passive solar protection devices as envisaged in the Development Plan.
The proposed dwellings together with the proposed land division does [sic] not satisfy the qualitative provisions in terms of maintenance and enhancement of character and amenity within the locality. Given the age of the typical housing stock and that fact the locality possesses the potential for redevelopment, this foreign element may set a precedent that would result in a later submission of a similar nature that would be difficult for the Council to refuse if this development were to be approved. The development does not complement the essential low scale and single storey character of the locality.
The consequences of the inconsistency of the proposed allotment dimensions is that it will not allow adequate opportunity for the dwellings to present to both the Cuthero Terrace and Mahar Street streetscapes in a manner that does not conflict with the existing modest frontages and building presentation of dwellings within both Cuthero Terrace and Mahar Street.

21 Mr Hilditch also called evidence from Mr C Obst, who resides at 39 Cuthero Terrace. Mr Obst expressed concern about the roof pitch of proposed Dwelling 2, which, in his view, would be likely to cause shadowing of windows on the western elevation of his house, and would also be visually imposing.
22 Mr Manos, for the Appellants, submitted that Policy Area 2 was one of the more permissive policy areas in terms of building height, being subject only to the provisions of Council Wide Principle 117, which sets a maximum height of two storeys or 9.0m, whereas some policy areas set a single-storey limit, other than for an upper level incorporated into roof space. Policy Area 2 also envisaged the creation of allotments as small as 375m², and it was therefore to be expected that dwellings of the form proposed could be established in that area, subject to meeting requirements as to setback, site coverage and the like. The proposal largely satisfied setback and site coverage requirements, and where it did not do so, the variation was minor.
23 With reference to Policy Area 2 Principle 1, Mr Manos submitted that, as the locality was characterised by a considerable diversity in the type, style and size of existing dwellings, there was no "distinctive and attractive streetscape character" to be factored into the design of new development. The proposed development largely met the relevant quantitative provisions of the Development Plan, and, because it incorporated upper levels into the roofspace, related appropriately to the height of adjoining single-storey dwellings.
24 In support of these submissions Mr Manos referred to the evidence of Mr Fantasia, who concluded, inter alia, that the proposal would "be consistent with the eclectic mix of housing and pattern of development within the locality and the policy area in terms of siting, built form, density, setback, architectural styling", would "complement the positive features of development within the locality" and would be "compatible with the built form of existing and new development within the locality". Elsewhere in his statement of evidence Mr Fantasia identified attractive front gardens and street trees as positive features of the locality, but expressed the view that the latter did not exhibit a consistent or cohesive character, being made up of "an eclectic mix of dwellings and dwelling forms from detached dwellings to semi-detached dwellings and residential flat buildings on a range of allotment shapes and sizes".
25 Does the two-storey form of the proposed dwellings bring them into conflict with Policy Area 2 Objective 1 and Principle 1, and Council Wide Objective 54 and Principles 25 and 26? In Lee v City of Mitcham [2003] SAERDC 55 I had occasion to consider this question in a similar context. In that matter, a full two-storey dwelling was proposed in a zone and policy area in the City of Mitcham, the Development Plan provisions for which required new development to be "compatible with the predominant single-storey character of detached housing in the locality". In my decision in Lee, I held that such provisions did not require new development to be limited to one storey provided it was of a design which was compatible with that character, commenting at paragraph 24, that "There are many streets, within the City of Mitcham and elsewhere, where single and two-storey dwellings sit comfortably side-by-side. Incompatibility, in my view, is occasioned by inappropriate design, siting, massing and scale relationships, not by the mere fact of a two-storey dwelling being sited next to a single-storey dwelling".
26 In this instance the proposed dwellings incorporate their upper level in the roofspace, this resulting in the maximum ridge height of Dwelling 1 being only 1200mm greater the ridge height of 24 Mahar Street, to its immediate north, and the maximum ridge height of Dwelling 2 being only 320mm greater than the maximum ridge height of 39 Cuthero Terrace, to its immediate east.
27 The roof form of each dwelling is articulated, and broken up by the incorporation of dormer windows. Each dwelling is sited and designed to achieve a gradation in height and massing from its boundary with adjoining development. Dwelling 2 is sited 1.0m off the common boundary with 39 Cuthero Terrace, with its roof form pitching away from that boundary. An open carport on the western site of 39 Cuthero Terrace provides further separation of the building mass of proposed Dwelling 2 from that of 39 Cuthero Terrace. Dwelling 1 has its northernmost garage sited on the common boundary with 24 Mahar Street, but is separated from the southern walls of the latter’s garage by some 3.2m, and from the dwelling proper, by 5.4m. The ridge height of the double garage element of Dwelling 1 is about 5.7m, only 200mm more than the ridge height of 24 Mahar Street, with the maximum ridge height of the former occurring some 9.5m south of the common boundary with the latter.
28 Both Dwelling 1 and Dwelling 2 satisfy front boundary setback requirements for residential development set out in Council Wide Principle 114, with the minor exception of a porch element in Dwelling 1, which sits some 300mm forward of the main face of that dwelling, and while the latter is set somewhat forward of the dwelling at 24 Mahar Street, there is a stepping back of each garage from the façade, such that, in built form terms, there is a progressive increase in setbacks from Mahar Street between Dwelling 2, which has its side setback 2.0m from Mahar Street, to the main façade of Dwelling 1, set back 6.0m, the front garage at 7.0m, the second at 8.0m, to the most forward element of 24 Mahar Street, at approximately 12.0m from the street.
29 In streetscape terms, the proposal satisfies one of the long-established precepts of urban design, being the reinforcement of corner sites as ‘anchors’ or ‘bookends’ to a streetscape, and does so in a manner which is respectful of adjoining dwellings without seeking to replicate their height or mass. Given the scope afforded by the qualitative provisions applying within Policy Area 2, particularly those regulating height, setback, site area and site coverage, the proposal is a form of development which reasonably could be anticipated in that policy area, and there is nothing in the qualitative provisions of the Development Plan which suggests to me that the proposed design fails, in a material way, to satisfy those provisions.
30 With reference to the concerns expressed by Mr Obst, I note that the existing carport and associated shadecloth structure on the western side of his dwelling would already cause substantial shading of west-facing windows in his house, and I do not consider the extent of any additional shadowing caused by the subject proposal to be significant.
31 In part, the submissions made by Mr Hilditch, and supported by the evidence of Mr Watson, seemed to be premised on the mere fact that the proposal took a form not hitherto evident in the locality. Where the Development Plan specifically seeks to maintain the existing pattern and form of development, the introduction of a new and different form of development should quite properly be a cause for concern. Where, as is the case here, the height, site area and dwelling type controls accommodate forms of development different to those presently characterising a locality, the mere fact that a proposal represents a different form of development, does not, of itself, constitute a basis upon which that proposal should be rejected. As I commented in my decision in Alan Sheppard Homes Pty Ltd v City of Burnside and Others (ERDC No. 249 of 1996) at 21:

Clearly, when the zoning of a locality contemplates forms of development additional to those already existing in the locality, the inevitability of some change to the appearance of that locality has to be recognised. Those provisions of the Development Plan which seek to ensure that new development harmonises with the prevailing character of that locality cannot, in my view, be interpreted so narrowly as to obviate any change.

32 Objective 1 and Principle 1 for Policy Area 2 do not seek the maintenance of the existing form and pattern of development in the locality. Rather, they seek maintenance and enhancement of its residential character and development which will "complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape exists." I agree with the evidence of Mr Fantasia that such streetscape character as does exist in the locality derives primarily from street trees and attractive front gardens, neither of which elements is prejudiced by the proposal. To the extent that the Development Plan anticipates dwellings of a greater height and on smaller site areas than those characteristic of the locality, maintenance and enhancement of the locality’s residential character must be achieved by careful design of new development, not by reading down the qualitative provisions of the Plan in such a way as to prevent any change to the existing pattern of development.
33 Having given careful consideration to the design and siting of the subject proposal, I have concluded that it achieves an appropriate relationship with adjoining dwellings, and will relate satisfactorily to the existing Cuthero Terrace and Mahar Street streetscapes.
34 A memorandum was issued to the parties, inviting the Appellant to amend the proposal plans to reflect the change to the eastern boundary setback of Dwelling 2, made during the course of the hearing, and the parties to discuss and, if possible, agree proposed conditions.
35 Correspondence was subsequently received from the parties setting out agreed conditions. The proposed conditions are satisfactory.
36 The appeal is upheld. Provisional Development Plan Consent is granted to Development Application Nos. 180/1049/04 and 180/0408/05, subject to the following conditions:

APPLICATION 1 – LAND DIVISION

Provisional Development Plan Consent Conditions

1. The development granted Provisional Development Plan Consent for Development Application 180/1049/04 shall be undertaken in accordance with the plans received by Council on 12 October 2004 to the satisfaction of Council except where varied by conditions below (if any).

Land Division Consent

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

2. Payment of $2770 into the Planning and Development Fund (1 allotment(s) @ $2770/allotment) shall be made. Cheques shall be made payable to the Development Assessment Commission, marked "Not Negotiable" and payment made at Level 5, 136 North Terrace, Adelaide, or sent to GPO Box 1815, Adelaide, 5001 or via the internet at www.planning.sa.gov.au.

3. Plans shall be in accordance with the requirements for plans under the Real Property Act (Land Division) Regulations 1982.

APPLICATION 2 – TWO TWO-STOREY DWELLINGS

1. The development granted Provisional Development Plan Consent for Development Application 180/0408/05 shall be undertaken in accordance with all plans, drawings, specifications and other documents submitted with and forming part of the application including the amended proposal plans received by the Court, date stamped 10/2/06 and comprising Exhibit A3 in these proceedings, to the satisfaction of Council, except where varied by conditions below:

2. All carparking areas, driveways and vehicle manoeuvring areas shown on the approved plans shall conform to Australian Standards and be constructed and drained in accordance with sound engineering practice to the reasonable satisfaction of Council, and carparking bays shall be permanently delineated prior to the occupation or use of the development herein approved to the reasonable satisfaction of Council.

3. Details and location of a stormwater detention tank shall be submitted to and approved by Council prior to or at the time of Provisional Building Rules Consent to allow for the collection, detention, retention and use of stormwater without causing nuisance or damage to the site or adjacent sites.

NOTE: Pursuant to the above condition, Council will consider the installation of a three-module rainwater tank connected to the roof water disposal as an appropriate means to satisfy this requirement, with overflow capacity connected to the Council’s stormwater system.

4. A detailed landscaping plan specifying all areas to be landscaped, species to be used, maturity at time of planting and mature height of plants shall be submitted to and approved by Council prior to or at the time of Provisional Building Rules Consent. The establishment of all landscaping shall be undertaken within 3 months of the completion of the building/development works and thereafter shall be maintained in good health and condition to the satisfaction of Council. Any dead or diseased plants or trees should be replaced forthwith to the reasonable satisfaction of Council.

5. The proposed driveway shall be constructed with permeable paving. Details of paving to be used shall be submitted to and be approved by Council prior to or at the time of application for Provisional Building Rules Consent.

ATTACHMENT 1

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/2006/19.html

3	The land, the subject of this appeal, is situated on the corner of Cuthero Terrace and Mahar Street. The site is generally flat. Cuthero Terrace is a local road of moderate width which serves to connect the site with Glynburn Road to the west. Mahar Street is also a moderately-wide local road and links the site to Magill Road to the north.
4	The subject land is rectangular in shape and is situated on the northeastern corner of the junction of Cuthero Terrace and Mahar Street. It has a frontage to Cuthero Terrace of 16.0m and to Mahar Street of 37.1m. A corner cut-off measuring 4.31m is also provided. The land has a total area of approximately 757.4m², and slopes very gradually from its southeastern to its northwestern corner, the total fall across the site being approximately 1.52m. No significant trees or other vegetation of any consequence is located on the site. An access driveway from Mahar Street (approximately 3.0m in width) is located adjacent to the northern boundary. Adjoining the land to the north and east are single-storey detached dwellings, with an open carport and an outbuilding located along the eastern boundary. Directly to the south, across Cuthero Terrace, is a single-storey residential flat building accommodating four dwellings. Directly across Mahar Street is a single-storey detached dwelling oriented to Cuthero Terrace.
5	Two qualified and experienced planners gave expert evidence in this matter, Mr L Fantasia and Mr J Watson. Each defined a locality for the purpose of his evidence. Both localities took in development on both sides of Cuthero Terrace between Ellerslie Street to the east and West Terrace to the west, and both sides of Mahar Street between Cuthero Terrace and Roslind Street. Mr Fantasia’s locality was somewhat more generalised than Mr Watson’s, taking in development on both sides of Lincoln Street, which intersects with Mahar Street north of Cuthero Terrace, and development extending along Coolibah Avenue and Peroomba Avenue to the south. For the purpose of these proceedings I have adopted the more specific locality defined by Mr Watson.
6	The locality contains a mixture of architectural styles and dwelling types, including:

7	While detached dwellings are the dominant form of development in the locality, higher density development is also evident, there being three examples of semi-detached dwellings within the locality, and four examples of residential flat buildings.
8	The subject land is located within the Residential Zone as depicted on Map Bur/4 in the Development Plan for the City of Burnside dated 17 March 2005. The land is located wholly within Policy Area 2, the southern boundary of which runs east-west along Cuthero Terrace. South of Cuthero Terrace is Policy Area 7. The majority of allotments in the locality are rectangular in shape and typically deep and narrow in form.
9	Side boundary setbacks are fairly consistent throughout the locality, being generally between 1.0m and 1.5m, although there is some evidence also of development to side boundaries, particularly in the form of garaging. Front boundary setbacks to Cuthero Terrace vary, but are predominantly within the range 6.0m to 8.0m. Front boundary set backs along Mahar Street range between 2.5 and 11.0m but are predominantly within the range 6.0m to 8.0m.

11	Application 180/0408/05 seeks approval for the construction of two two-storey detached dwellings. The proposal plans tendered in evidence incorporate amendments made subsequent to the decision of the Council.
12	The first proposed dwelling (Dwelling 1) would address the Mahar Street frontage, the other (Dwelling 2) addressing the Cuthero Terrace frontage. Each dwelling would be of a Neo-Georgian appearance, incorporating porticos, pitched roofs at 40deg. and 36deg. respectively, dormer windows, and garaging under the main roof. Upper levels would be located within the roof space. The proposal is depicted in more detail on the proposal plans forming Attachment 1 to this judgment. Those plans incorporate an amendment made to the proposal by the Appellants in the course of the hearing, that amendment entailing the setting back of proposed Dwelling 2 1.0m from the eastern boundary of the subject land.
13	The land division application (DA 180/1049/04) proposes the creation of two allotments from the one existing allotment. Allotment 500 would have an area of 378m² and a frontage of 19.8m to Mahar Street and Allotment 501 an area of 378m² and a dual frontage of 17.0m to Mahar Street and 16.0m to Cuthero Terrace.

15	The erection of a detached dwelling is a consent form of development within the policy area.
16	Of some relevance also are Residential Zone Objectives 1, 2, 3, 5 and 8 and Principles 1, 2, 3, 4 and Council Wide Objectives 5, 6, 9, 14, 15, 16, 17, 22, 23, 27, 29, 51, 52, 53, 54 and 55 and Principles 1, 3, 4, 6, 7, 9, 10, 15, 23, 25, 26, 29, 52, 53, 61, 62, 72, 74, 114, 115, 116, 117, 118, 119, 120, 121, 122, 125, 126, 127, 129, 130, 132, 134, 135, 136, 137 and 146.

17	Mr Hilditch, for the Council, acknowledged that the subject proposal largely satisfied the relevant quantitative provisions of the Development Plan. In his submission, however, it failed to satisfy a number of qualitative requirements, such as Council Wide Objective 54 and Principles 25 and 26, inasmuch as the two-storey form of the proposed dwellings called for setbacks from front and side boundaries greater than those prescribed for Policy Area 2 if a satisfactory built form relationship were to be established with adjoining single-storey dwellings. The Appellants were attempting to place too much development on the relatively small allotments proposed.
18	Mr Hilditch also made reference to Zone Principle 2(d), submitting that, if two-storey development was to occur in the zone, its design needed to have regard to siting, mass and proportion, roof form and pitch, façade articulation and detailing and window and door locations and proportions. These factors had been given insufficient attention in the design of the proposed dwellings, and as a consequence, the relationship of those dwellings with adjoining dwellings would be unsatisfactory.
19	Referring to Principle 1 for Policy Area 2, Mr Hilditch submitted that the positive elements of existing dwellings in the locality, which new development was required to complement, included a single-storey, low-scale character and relatively modest roof pitches. To complement these characteristics, new development needed to be of a modest scale, and well-separated from adjacent dwellings.
20	In support of these submissions, Mr Hilditch referred to the evidence of Mr Watson. That evidence was that:

21	Mr Hilditch also called evidence from Mr C Obst, who resides at 39 Cuthero Terrace. Mr Obst expressed concern about the roof pitch of proposed Dwelling 2, which, in his view, would be likely to cause shadowing of windows on the western elevation of his house, and would also be visually imposing.
22	Mr Manos, for the Appellants, submitted that Policy Area 2 was one of the more permissive policy areas in terms of building height, being subject only to the provisions of Council Wide Principle 117, which sets a maximum height of two storeys or 9.0m, whereas some policy areas set a single-storey limit, other than for an upper level incorporated into roof space. Policy Area 2 also envisaged the creation of allotments as small as 375m², and it was therefore to be expected that dwellings of the form proposed could be established in that area, subject to meeting requirements as to setback, site coverage and the like. The proposal largely satisfied setback and site coverage requirements, and where it did not do so, the variation was minor.
23	With reference to Policy Area 2 Principle 1, Mr Manos submitted that, as the locality was characterised by a considerable diversity in the type, style and size of existing dwellings, there was no "distinctive and attractive streetscape character" to be factored into the design of new development. The proposed development largely met the relevant quantitative provisions of the Development Plan, and, because it incorporated upper levels into the roofspace, related appropriately to the height of adjoining single-storey dwellings.
24	In support of these submissions Mr Manos referred to the evidence of Mr Fantasia, who concluded, inter alia, that the proposal would "be consistent with the eclectic mix of housing and pattern of development within the locality and the policy area in terms of siting, built form, density, setback, architectural styling", would "complement the positive features of development within the locality" and would be "compatible with the built form of existing and new development within the locality". Elsewhere in his statement of evidence Mr Fantasia identified attractive front gardens and street trees as positive features of the locality, but expressed the view that the latter did not exhibit a consistent or cohesive character, being made up of "an eclectic mix of dwellings and dwelling forms from detached dwellings to semi-detached dwellings and residential flat buildings on a range of allotment shapes and sizes".
25	Does the two-storey form of the proposed dwellings bring them into conflict with Policy Area 2 Objective 1 and Principle 1, and Council Wide Objective 54 and Principles 25 and 26? In Lee v City of Mitcham [2003] SAERDC 55 I had occasion to consider this question in a similar context. In that matter, a full two-storey dwelling was proposed in a zone and policy area in the City of Mitcham, the Development Plan provisions for which required new development to be "compatible with the predominant single-storey character of detached housing in the locality". In my decision in Lee, I held that such provisions did not require new development to be limited to one storey provided it was of a design which was compatible with that character, commenting at paragraph 24, that "There are many streets, within the City of Mitcham and elsewhere, where single and two-storey dwellings sit comfortably side-by-side. Incompatibility, in my view, is occasioned by inappropriate design, siting, massing and scale relationships, not by the mere fact of a two-storey dwelling being sited next to a single-storey dwelling".
26	In this instance the proposed dwellings incorporate their upper level in the roofspace, this resulting in the maximum ridge height of Dwelling 1 being only 1200mm greater the ridge height of 24 Mahar Street, to its immediate north, and the maximum ridge height of Dwelling 2 being only 320mm greater than the maximum ridge height of 39 Cuthero Terrace, to its immediate east.
27	The roof form of each dwelling is articulated, and broken up by the incorporation of dormer windows. Each dwelling is sited and designed to achieve a gradation in height and massing from its boundary with adjoining development. Dwelling 2 is sited 1.0m off the common boundary with 39 Cuthero Terrace, with its roof form pitching away from that boundary. An open carport on the western site of 39 Cuthero Terrace provides further separation of the building mass of proposed Dwelling 2 from that of 39 Cuthero Terrace. Dwelling 1 has its northernmost garage sited on the common boundary with 24 Mahar Street, but is separated from the southern walls of the latter’s garage by some 3.2m, and from the dwelling proper, by 5.4m. The ridge height of the double garage element of Dwelling 1 is about 5.7m, only 200mm more than the ridge height of 24 Mahar Street, with the maximum ridge height of the former occurring some 9.5m south of the common boundary with the latter.
28	Both Dwelling 1 and Dwelling 2 satisfy front boundary setback requirements for residential development set out in Council Wide Principle 114, with the minor exception of a porch element in Dwelling 1, which sits some 300mm forward of the main face of that dwelling, and while the latter is set somewhat forward of the dwelling at 24 Mahar Street, there is a stepping back of each garage from the façade, such that, in built form terms, there is a progressive increase in setbacks from Mahar Street between Dwelling 2, which has its side setback 2.0m from Mahar Street, to the main façade of Dwelling 1, set back 6.0m, the front garage at 7.0m, the second at 8.0m, to the most forward element of 24 Mahar Street, at approximately 12.0m from the street.
29	In streetscape terms, the proposal satisfies one of the long-established precepts of urban design, being the reinforcement of corner sites as ‘anchors’ or ‘bookends’ to a streetscape, and does so in a manner which is respectful of adjoining dwellings without seeking to replicate their height or mass. Given the scope afforded by the qualitative provisions applying within Policy Area 2, particularly those regulating height, setback, site area and site coverage, the proposal is a form of development which reasonably could be anticipated in that policy area, and there is nothing in the qualitative provisions of the Development Plan which suggests to me that the proposed design fails, in a material way, to satisfy those provisions.
30	With reference to the concerns expressed by Mr Obst, I note that the existing carport and associated shadecloth structure on the western side of his dwelling would already cause substantial shading of west-facing windows in his house, and I do not consider the extent of any additional shadowing caused by the subject proposal to be significant.
31	In part, the submissions made by Mr Hilditch, and supported by the evidence of Mr Watson, seemed to be premised on the mere fact that the proposal took a form not hitherto evident in the locality. Where the Development Plan specifically seeks to maintain the existing pattern and form of development, the introduction of a new and different form of development should quite properly be a cause for concern. Where, as is the case here, the height, site area and dwelling type controls accommodate forms of development different to those presently characterising a locality, the mere fact that a proposal represents a different form of development, does not, of itself, constitute a basis upon which that proposal should be rejected. As I commented in my decision in Alan Sheppard Homes Pty Ltd v City of Burnside and Others (ERDC No. 249 of 1996) at 21:

32	Objective 1 and Principle 1 for Policy Area 2 do not seek the maintenance of the existing form and pattern of development in the locality. Rather, they seek maintenance and enhancement of its residential character and development which will "complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape exists." I agree with the evidence of Mr Fantasia that such streetscape character as does exist in the locality derives primarily from street trees and attractive front gardens, neither of which elements is prejudiced by the proposal. To the extent that the Development Plan anticipates dwellings of a greater height and on smaller site areas than those characteristic of the locality, maintenance and enhancement of the locality’s residential character must be achieved by careful design of new development, not by reading down the qualitative provisions of the Plan in such a way as to prevent any change to the existing pattern of development.
33	Having given careful consideration to the design and siting of the subject proposal, I have concluded that it achieves an appropriate relationship with adjoining dwellings, and will relate satisfactorily to the existing Cuthero Terrace and Mahar Street streetscapes.
34	A memorandum was issued to the parties, inviting the Appellant to amend the proposal plans to reflect the change to the eastern boundary setback of Dwelling 2, made during the course of the hearing, and the parties to discuss and, if possible, agree proposed conditions.
35	Correspondence was subsequently received from the parties setting out agreed conditions. The proposed conditions are satisfactory.
36	The appeal is upheld. Provisional Development Plan Consent is granted to Development Application Nos. 180/1049/04 and 180/0408/05, subject to the following conditions: