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Kermode v City of Mitcham [2006] SAERDC 4 (7 February 2006)

Last Updated: 9 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.

KERMODE v CITY OF MITCHAM

Judgment of Commissioner Hodgson

7 February 2006

LOCAL GOVERNMENT - TOWN PLANNING

Appeal against refusal of Provisional Development Plan Consent – application to construct a second dwelling on an existing allotment – Residential (Central Plains) Zone (Policy Area 8) – characterisation of proposal – whether locality one suitable for higher density development – front and rear setbacks well below those prevailing in locality – proposal inconsistent with established and desired character – appeal dismissed and decision of Council confirmed.
Development Act 1993, referred to.
Peej Nominees Pty Ltd v Alexandrina Council [2005] SAERDC 82; City of Mitcham v Freckmann and Ors 1999 EDLR 286; Dottore and Rocca v City of Burnside [2004] SAERDC 48, considered.

KERMODE v CITY OF MITCHAM
[2006] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against the decision of the City of Mitcham ("the Council") to refuse Provisional Development Plan Consent to an application under the Development Act 1993 by Mrs M Kermode ("the Appellant"). Some relevant details are set out hereunder:

Date of application:	18 December 2004
Subject land:	20 Ackland Avenue, Clarence Gardens
Existing use:	Residential
Proposed Development:	Construct a single storey detached dwelling, garage and verandah.
Relevant authority:	City of Mitcham
Relevant Development Plan:	Mitcham (City) 23 September 2004
Relevant Zone/Policy Area:	Residential (Central Plains) Zone Policy Area 8
Date of decision:	3 May 2005
Appeal lodged:	7 June 2005

The Land and Locality

2 The subject land is a rectangular corner allotment having frontages of 15.05m to Ackland Avenue and 48.31m to Bideford Avenue with a corner cut-off of 3.47m at the intersection of these roads. Excluding the corner cut-off, its width is 17.43m and its total area, approximately 842m².
3 The land is relatively flat and is presently occupied by a small single-storey three bedroom conventional detached dwelling of brick construction with a tiled roof. It has a well-maintained front garden facing east and oriented to Ackland Avenue. The dwelling is set back approximately 9.0m from its Ackland Avenue frontage and 1.9m from its Bideford Avenue frontage.
4 A detached brick garage is located some 3.3m to the rear of the back wall of the dwelling and is located on or close to the alignment of Bideford Avenue. The garage is accessed by a roller door from Bideford Avenue. A small shed is located alongside the garage and abutting the boundary of Bideford Avenue.
5 The rear yard presently contains a number of formed garden beds surrounded by concrete paths, a small lawned area covered by a pergola, and a small brick barbeque area. A number of small fruit trees and shrubs are also located in the rear yard.
6 Planning evidence in this matter was given by two qualified and experienced planners, Mr D Hutchison and Mr G Sewart. Mr Hutchison is a planning consultant and Mr Sewart is in the employ of the Respondent Council. The localities defined by each for the purpose of their evidence differed somewhat, Mr Hutchison’s being the more extensive, taking in dwellings on either side of Ackland Avenue a short distance north and south of the junction of that street and Bideford Avenue, and development on either side of Bideford Avenue from the above junction west to Clovelly Avenue. Mr Sewart’s locality extended somewhat further north and south on Ackland Avenue, but only half the distance to the west. I find that Mr Hutchison’s locality provides a more comprehensive context for assessment of the subject proposal and I have adopted his locality for that purpose.
7 That locality contains solely residential development, comprising predominantly single-storey detached dwellings dating from the late 1940’s to the mid 1970’s, wide straight streets incorporating mature landscaping, open and well-landscaped front gardens, consistent street setbacks of between 7.0m to 8.0m with varying side setbacks, including some buildings and dwellings and outbuildings located to side boundaries, but generally good separation and spacing between buildings. Allotment sizes are predominantly around 800m², with frontages ranging from 15.0m to 18.0m. Some smaller allotments are also evident, including those to the immediate north of the junction of Ackland Avenue and Bideford Avenue, four of which have areas between 633m² and 686m², and several on the northern side of Bideford Avenue at its junction with Clovelly Avenue, which allotments have areas of 479m² and 442m² respectively. On the northern side of Bideford Avenue, a short distance west of its junction with Ackland Avenue, is an allotment of 535m². The evidence of Mr Hutchison was that the pattern of land division within the locality remained largely unaltered from that originally approved in the 1920’s, other than by the creation of a significant number of corner allotment subdivisions by the Lands Department in the early 1980’s. These subdivisions typically involved the resubdivision of a number of adjoining corner allotments to create one additional title.

The Proposal

8 The subject proposal entails the construction of an additional dwelling to the rear of that presently located on the subject land, and the retention of the original dwelling. The proposal is depicted in more detail in the proposal plans, tendered as Exhibit A3, a copy of which is attached to this judgment as Attachment 1. Although the proposal plans indicate a site area for the new dwelling, the proposal has not been accompanied by an application for division of the subject land.
9 The proposed dwelling would have a floor area of 116m², together with a double garage and verandahs totalling 44.06m². It would be located on a site area of 397.4m², this site having a frontage of 22.8m and a depth of 17.43m. On the basis of that nominal site, site coverage would be 40.5%, built area ratio 60.0% and floor area ratio 31.8%. The proposed dwelling would be set back a minimum of 4.1m from the street boundary, this increasing to 5.5m for the principal face of the dwelling and 6.1m for a second garage opening. The eastern boundary side setback would be 3.09m and the western boundary setback 1.0m. The proposed rear setback would be 2.94m, this increasing to 5.34m for portions of the dwelling. An 1800mm high internal dividing fence would be erected between the side of the proposed dwelling and the existing dwelling on the subject land. Proposed private open space would be 123.17m² or 31% of the site area. Landscaping is proposed to the street frontage, taking the form of lawn and formal garden beds of standard roses, with low native shrubs between the driveway and the western property boundary.
10 As a consequence of the proposal proceeding, the existing dwelling on the subject land would remain on a site area of 445.0m². Its site would have a frontage of 17.43m (inclusive of the corner cut-off) and a depth of 25.54m. Its site coverage would be 30.3%, its built area ratio 60.0% and its floor area ratio 25.3%. Private open space remaining would be 100.3m² or 22.5% of this site area.

The Development Plan

11 The subject land is located in the Residential (Central Plains) Zone as depicted on Map Mit/3 in the Development Plan for the City of Mitcham dated 23 September 2004. More particularly, the land is located within Policy Area 8 as depicted on Map Mit/27 in the same Development Plan. The objectives for the Residential (Central Plains) Zone envisage development comprising primarily detached dwellings "undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality". The objectives also seek the retention of existing affordable housing wherever appropriate. The desired character for Policy Area 8 is set out below the objectives for the zone. It includes the following passages:

Residential (Central Plains) Zone
Desired Character
Policy Area 8

This policy area is characterized by dwellings constructed mainly between the years 1920 and 1970. The predominant dwelling style therefore comprises a mix of villas, bungalows and tudors built generally prior to 1940, and are deco, austerity, contemporary and conventional house styles constructed between the wars and afterwards.
This mix of housing styles contributes to the area’s distinctive "traditional" character in some areas, and a more contemporary character in others. However within the policy area, typical streetscapes vary from streets of predominantly bungalow, art deco or contemporary styles, to streets with a mixture of building styles.
....
Specific features of the policy area that contribute to its character include a predominance of single-storey detached dwellings on generally spacious allotments with relatively uniform set-backs from road frontages. This results in the area’s distinctive low-density character with generous proportions of open space, both in front of and behind dwellings, and wide and spacious streetscapes dominated by a combination of street trees and landscaped front gardens.
The provision of public open space and recreation throughout the area is generally poor, particularly in that part of the policy area north of Daws Road/Springbank Road. This constrains the appropriateness of the policy area to accommodate higher density development.
Future development within the policy area should complement the existing mixed character of development constructed between 1920 and 1970, by respecting and preserving the private open space and low density qualities of the area.
....
New building forms should generally maintain the existing pattern and scale of detached dwellings with road frontage, although other forms of dwellings should also be provided to extend the range and choice of housing options available to the community.
To achieve new development at higher density than that prevailing, whilst maintaining the character of the area, such development should be located on larger sites (which may require the amalgamation of several existing allotments) to enable a planned and co-ordinated development. In such instances development should address the road frontage to maintain the existing streetscape character, and should either provide, or be located in proximity to, adequate public or private open space. New development should also ensure that site areas per dwelling are sufficiently large to provide an adequate provision of unbuilt-upon land, including private open space with each dwelling.

12 Relevant Zone and Policy Area Principles are as follows:

Residential (Central Plains) Zone

Principle 1: Development within the zone should be primarily for detached dwellings; other dwelling forms may be appropriate where the external design and appearance of such dwellings complements the predominant architecture, streetscape and low-density character of existing development within the locality.
Principle 2: Development should be in accordance with the desired character of the relevant policy area.
Principle 3: The following kind of development is complying in the Residential (Central Plains) Zone subject to compliance with the relevant provisions of Table Mit/1.

Single-storey additions to a detached dwelling
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Detached dwelling on a site not less than 600 square metres in area
Domestic Outbuilding

13 Zone Principle 4 sets out non-complying forms of development within the zone. Forms of residential development listed as non-complying are multiple dwellings and residential flat buildings comprising 3 or more dwellings.

Policy Area 8

Principle 1: Excluding residences comprising dependent relative accommodation, the minimum site area for a dwelling should be as follows:
(a) 500 square metres for a detached dwelling;
(b) 425 square metres for a semi-detached dwelling; and
(c) 400 square metres for any other dwelling.
Except as provided for under principle of development control numbered 2 of this policy area.
Principle 3: New housing, and in particular development on sites comprising two or more dwellings, should maintain, or where appropriate, enhance the streetscape in the locality through:
(a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality;
(b) the bulk, height and scale of the development being compatible with the predominant single-storey character of detached housing in the locality however dwellings of two storeys in height may be appropriate on sites immediately abutting the western boundary of the Pasadena High School;
(c) dwellings adjoining a street frontage having a siting and orientation to address the street in a manner similar to existing detached dwellings in the locality.

14 Council Wide Development Plan provisions of particular relevance to assessment of the subject proposal are Objectives 14, 16 and 17 and Principles 16, 17, 18, 19 and 26.
15 Mr Hutchison, who gave evidence in the Appellant’s case, noted that Zone Objectives 1 and 2, read together with the Desired Character Statement for Policy Area 8, required new development to variously complement, respect and preserve the low-density character and qualities of existing development in the area. Conceding that the proposal was not "low-density development" as that term is generally understood, and having regard to the prevailing allotment size of 800m² and greater, Mr Hutchison nonetheless took the view that the proposal adequately reflected the low-density character of the locality, for a number of reasons:

(a) the proposal was a modest single-storey dwelling, consistent in design and size with others in the locality;

(b) the new site frontage resulting from the proposal was consistent with others in the locality;

(c) while the front setback for the proposed dwelling was less than those prevailing in the locality, it was consistent with the pattern of setbacks evident on corner allotments;

(d) the front wall of the new dwelling was articulated and progressively stepped back to reflect the greater street setback (11.0m) of the adjoining house;

(e) while the proposal did not comply with the 500m² minimum site area for a detached dwelling set out in Policy Area 8 Principle 1, it was consistent with the site areas envisaged for other forms of residential development within the zone, on the basis that, as the two dwellings would not occupy their own exclusive sites, the proposal was best characterised as two dwellings rather than two detached dwellings, thus requiring a minimum site area of 400m²;

(f) private open space for both dwellings exceeded the requirement set out in Council Wide Principle 17;

(g) side setbacks were consistent with those prevailing in the locality;

(h) adequate on-site carparking was provided; and

(i) site coverage, built area ratio and floor area ratios were all generally consistent with Council Wide Principle 26.

16 Mr Sewart, who gave evidence in the Respondent Council’s case, was of the view that the sites for the two dwellings were significantly smaller than all other allotments in the locality, would not allow development of the site in a manner compatible with the existing pattern of development, and therefore would be out of character with the prevailing pattern of development in the locality.
17 In his assessment, the locality consisted exclusively of detached dwellings on large allotments with uniform setbacks from the street and generous amounts of open space to the front and rear. These characteristics would not be achieved by the proposed development. In particular, the proposed new dwelling would sit well forward of the adjoining dwelling to the west and have a negative impact on the existing streetscape which, other than on corner allotments, featured substantial and consistent setbacks. The proposed rear setback to the new dwelling was less than the minimum required and significantly out of character with the existing pattern of development which was characterised by large rear yards with generous amounts of open space.
18 Mr Manos, for the Respondent Council, submitted that, as reference was made to land division in the original development application for the subject proposal, there was a basis upon which to conclude that the proposal constituted an application for two detached dwellings, and therefore, at least in land use terms, was consistent with the general thrust of the Development Plan policies for the zone, which seek detached dwellings as the predominant form of development. I reject that submission. The Development Regulations 1993 relevantly define a "detached dwelling" as "one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road". While specific sites have been defined for both dwellings, it was common ground between the parties that land division approval was not being sought as part of the subject proposal. That being the case, neither site is one "held exclusively" with the relevant dwelling. It follows that the proposal cannot be characterised as an application for approval of two detached dwellings. Having regard to the definition of other dwelling types under the Development Regulations, I have concluded that, in land use terms, the proposal is most appropriately characterised as two dwellings on a single allotment. This conclusion is consistent with an earlier decision of this Court in Peej Nominees Pty Ltd v Alexandrina Council [2005] SAERDC 82.
19 It may well be that, at some time in the future, an application is made to divide the subject land, so as to create two allotments, each of which would be held exclusively with a dwelling. Approval of the subject proposal in its present form would, in my assessment, require the maintenance, in any land division, of the site areas nominated for each dwelling, and the spacing between the two dwellings, but there is nothing in the form of the current proposal which commits the Appellant to future division of the subject land.
20 It is established law that, in assessing the acceptability or otherwise of a proposed development, planning authorities, and this Court, must make that assessment having regard to the overall intent and purpose and the desired character of the zone within which the development is proposed: City of Mitcham v Freckmann and Ors 1999 EDLR 286. The objectives for the Residential (Central Plains) Zone, as they relate to Policy Area 8, seek "primarily detached dwellings.....undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality" and development which "accords with the desired character of the relevant policy area ....". The Desired Character Statement for Policy Area 8 refers to that character including "a predominance of single-storey detached dwellings on generally spacious allotments with relatively uniform setbacks from road frontages", and "generous proportions of open space, both in front of and behind dwellings, and wide and spacious streetscapes dominated by a combination of street trees and landscaped front gardens".
21 The desired low-density character for the area is reinforced by the following passage:

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

22 The subject land is located within that part of Policy Area 8 north of Daws/Springbank Roads, suggesting that, while these are references in the Desired Character Statement to development at higher densities occurring in some parts of the policy area, the subject locality is not one envisaged for such development. Further, the Desired Character Statement calls for new development at higher than prevailing densities "being located on larger sites (which may require the amalgamation of several existing allotments) to enable a planned and coordinated development".
23 The locality of the subject land is characterised by relatively large and deep allotments, with dwellings well separated from front and rear boundaries. Allotment areas are typically around 800m², although to the immediate north of the subject land are three smaller allotments of 535m², 639m² and 633m² respectively. All three of these allotments have a depth nearly twice that of the site proposed for the new dwelling.
24 Having regard to all the above, I have concluded that the subject land lies within a locality which presently conforms closely with the character sought to be conserved by new development in Policy Area 8, suggesting that locality is unsuitable for higher density development. The site areas proposed to accommodate the existing and proposed dwellings, at 443m² and 377m² respectively, lie well below the minimum site area for a detached dwelling (500m²) and, on the evidence of both planners, would not constitute low-density development.
25 That said, site area is not necessarily conclusive in determining the acceptability of proposed development. As I observed in my judgment in Dottore and Rocca v City of Burnside [2004] SAERDC 48:

In many instances, a deficiency in site area is likely to manifest itself in a failure to meet other important quantitative requirements, such as setbacks, site frontage, and site coverage. In this instance, that is not the case, the shortfall in side setback and the exceeding of site coverage limits being so small as to be inconsequential. That is not to say that minimum site area restrictions can be ignored with impunity, but rather, to say that the significance of any site area deficiency should be assessed in the context of a proposal’s capacity to satisfy other relevant quantitative and qualitative provisions of the Development Plan.

26 Do the site areas proposed in this instance result in a failure to meet other quantitative or qualitative provisions of the Development Plan? On the evidence of both planners, many of the relevant quantitative provisions of the Development Plan are met by the proposal. Those elements which fail to satisfy quantitative provisions appear to be:

(a) the front setback of the new dwelling facing Bideford Avenue;

(b) the setback of that dwelling from its rear boundary.

27 Council Wide Principle 18 requires buildings and structures within an established streetscape, and having existing buildings on either side, to be set back the average of the corresponding set-backs of the two adjacent buildings. If the garage to the existing dwelling, which is set back 0.5m on the road boundary, is used for the purpose of setback calculation, the average of that setback and that of the adjoining dwelling to the west (11.0) is 5.75m. The setbacks for the proposed dwelling are 3.4m to a bay window, 4.18m to the living room wall, 5.5m to the study, one bedroom and portion of the garage, and 6.1m for the second portion of the garage. If the setback of the existing dwelling (1.94m) is used for the purpose of this calculation, which, in my view, would be an approach more consistent with the protection of established streetscape quantities, the required setback would increase to 6.47m.
28 Council Wide Principle 19 requires, inter alia, that single-storey buildings and structures (other than domestic outbuildings) be set back a minimum of 5.0m from rear property boundaries. More than half of the southern elevation of the proposed dwelling is set only 2.94m from the rear boundary of its site.
29 Principle 3 for Policy Area 8 requires "new housing and in particular, development on sites comprising two or more dwellings" to "maintain, or where appropriate, enhance the streetscape in the locality through: (a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality....." The front setback of the proposed dwelling and the space around that dwelling is not in my assessment, consistent with front setbacks and spaces around dwellings generally prevailing in the locality.
30 The consequence of these areas of non-compliance with relevant qualitative and quantitative provisions of the Development Plan is to create a setting for the proposed dwelling which is quite different from the setting of other dwellings in the locality. Those dwellings have an average front setback of 8-9m, and an average rear setback (in Bideford Avenue) of 10-11m. This creates a spacious setting for those dwellings and achieves a high degree of consistency with the Desired Character for Policy Area 8. The proposed development would result in the new dwelling occupying a site which, viewed from both Bideford Avenue and from other abutting properties, would lack the spaciousness characteristic of the locality.
31 It could be argued that the subject land, viewed from Bideford Avenue, is necessarily shallower than other allotments to the west, because it is oriented to Ackland Avenue. Against that, however, is the fact that the rear half of the subject land is occupied only by garden beds and vegetation and in that way contributes to the spaciousness characteristic of the locality. The combination of site coverage and rear setback requirements would suggest that extensions to the existing dwelling to achieve the maximum floor area available under current development plan provisions would still leave a substantial area of open space to the rear of the subject land, consistent with the desired character for Policy Area 8. When the objectives and desired character for that area are taken together with the proposal’s failure to meet front and rear setback requirements, I am led inevitably to the conclusion that the site areas proposed for the existing and new dwelling are too small to allow development consistent with the relevant provisions of the Development Plan. I am reinforced in that conclusion by references in the desired character statement suggestive of the subject land being in a locality which is inappropriate for higher density developments.
32 In the light of my conclusions above, I have further concluded that the decision of the Council to refuse the subject proposal was correct, and should be upheld.
33 There will be an order to that effect.

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2	The subject land is a rectangular corner allotment having frontages of 15.05m to Ackland Avenue and 48.31m to Bideford Avenue with a corner cut-off of 3.47m at the intersection of these roads. Excluding the corner cut-off, its width is 17.43m and its total area, approximately 842m².
3	The land is relatively flat and is presently occupied by a small single-storey three bedroom conventional detached dwelling of brick construction with a tiled roof. It has a well-maintained front garden facing east and oriented to Ackland Avenue. The dwelling is set back approximately 9.0m from its Ackland Avenue frontage and 1.9m from its Bideford Avenue frontage.
4	A detached brick garage is located some 3.3m to the rear of the back wall of the dwelling and is located on or close to the alignment of Bideford Avenue. The garage is accessed by a roller door from Bideford Avenue. A small shed is located alongside the garage and abutting the boundary of Bideford Avenue.
5	The rear yard presently contains a number of formed garden beds surrounded by concrete paths, a small lawned area covered by a pergola, and a small brick barbeque area. A number of small fruit trees and shrubs are also located in the rear yard.
6	Planning evidence in this matter was given by two qualified and experienced planners, Mr D Hutchison and Mr G Sewart. Mr Hutchison is a planning consultant and Mr Sewart is in the employ of the Respondent Council. The localities defined by each for the purpose of their evidence differed somewhat, Mr Hutchison’s being the more extensive, taking in dwellings on either side of Ackland Avenue a short distance north and south of the junction of that street and Bideford Avenue, and development on either side of Bideford Avenue from the above junction west to Clovelly Avenue. Mr Sewart’s locality extended somewhat further north and south on Ackland Avenue, but only half the distance to the west. I find that Mr Hutchison’s locality provides a more comprehensive context for assessment of the subject proposal and I have adopted his locality for that purpose.
7	That locality contains solely residential development, comprising predominantly single-storey detached dwellings dating from the late 1940’s to the mid 1970’s, wide straight streets incorporating mature landscaping, open and well-landscaped front gardens, consistent street setbacks of between 7.0m to 8.0m with varying side setbacks, including some buildings and dwellings and outbuildings located to side boundaries, but generally good separation and spacing between buildings. Allotment sizes are predominantly around 800m², with frontages ranging from 15.0m to 18.0m. Some smaller allotments are also evident, including those to the immediate north of the junction of Ackland Avenue and Bideford Avenue, four of which have areas between 633m² and 686m², and several on the northern side of Bideford Avenue at its junction with Clovelly Avenue, which allotments have areas of 479m² and 442m² respectively. On the northern side of Bideford Avenue, a short distance west of its junction with Ackland Avenue, is an allotment of 535m². The evidence of Mr Hutchison was that the pattern of land division within the locality remained largely unaltered from that originally approved in the 1920’s, other than by the creation of a significant number of corner allotment subdivisions by the Lands Department in the early 1980’s. These subdivisions typically involved the resubdivision of a number of adjoining corner allotments to create one additional title.

8	The subject proposal entails the construction of an additional dwelling to the rear of that presently located on the subject land, and the retention of the original dwelling. The proposal is depicted in more detail in the proposal plans, tendered as Exhibit A3, a copy of which is attached to this judgment as Attachment 1. Although the proposal plans indicate a site area for the new dwelling, the proposal has not been accompanied by an application for division of the subject land.
9	The proposed dwelling would have a floor area of 116m², together with a double garage and verandahs totalling 44.06m². It would be located on a site area of 397.4m², this site having a frontage of 22.8m and a depth of 17.43m. On the basis of that nominal site, site coverage would be 40.5%, built area ratio 60.0% and floor area ratio 31.8%. The proposed dwelling would be set back a minimum of 4.1m from the street boundary, this increasing to 5.5m for the principal face of the dwelling and 6.1m for a second garage opening. The eastern boundary side setback would be 3.09m and the western boundary setback 1.0m. The proposed rear setback would be 2.94m, this increasing to 5.34m for portions of the dwelling. An 1800mm high internal dividing fence would be erected between the side of the proposed dwelling and the existing dwelling on the subject land. Proposed private open space would be 123.17m² or 31% of the site area. Landscaping is proposed to the street frontage, taking the form of lawn and formal garden beds of standard roses, with low native shrubs between the driveway and the western property boundary.
10	As a consequence of the proposal proceeding, the existing dwelling on the subject land would remain on a site area of 445.0m². Its site would have a frontage of 17.43m (inclusive of the corner cut-off) and a depth of 25.54m. Its site coverage would be 30.3%, its built area ratio 60.0% and its floor area ratio 25.3%. Private open space remaining would be 100.3m² or 22.5% of this site area.

16	Mr Sewart, who gave evidence in the Respondent Council’s case, was of the view that the sites for the two dwellings were significantly smaller than all other allotments in the locality, would not allow development of the site in a manner compatible with the existing pattern of development, and therefore would be out of character with the prevailing pattern of development in the locality.
17	In his assessment, the locality consisted exclusively of detached dwellings on large allotments with uniform setbacks from the street and generous amounts of open space to the front and rear. These characteristics would not be achieved by the proposed development. In particular, the proposed new dwelling would sit well forward of the adjoining dwelling to the west and have a negative impact on the existing streetscape which, other than on corner allotments, featured substantial and consistent setbacks. The proposed rear setback to the new dwelling was less than the minimum required and significantly out of character with the existing pattern of development which was characterised by large rear yards with generous amounts of open space.
18	Mr Manos, for the Respondent Council, submitted that, as reference was made to land division in the original development application for the subject proposal, there was a basis upon which to conclude that the proposal constituted an application for two detached dwellings, and therefore, at least in land use terms, was consistent with the general thrust of the Development Plan policies for the zone, which seek detached dwellings as the predominant form of development. I reject that submission. The Development Regulations 1993 relevantly define a "detached dwelling" as "one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road". While specific sites have been defined for both dwellings, it was common ground between the parties that land division approval was not being sought as part of the subject proposal. That being the case, neither site is one "held exclusively" with the relevant dwelling. It follows that the proposal cannot be characterised as an application for approval of two detached dwellings. Having regard to the definition of other dwelling types under the Development Regulations, I have concluded that, in land use terms, the proposal is most appropriately characterised as two dwellings on a single allotment. This conclusion is consistent with an earlier decision of this Court in Peej Nominees Pty Ltd v Alexandrina Council [2005] SAERDC 82.
19	It may well be that, at some time in the future, an application is made to divide the subject land, so as to create two allotments, each of which would be held exclusively with a dwelling. Approval of the subject proposal in its present form would, in my assessment, require the maintenance, in any land division, of the site areas nominated for each dwelling, and the spacing between the two dwellings, but there is nothing in the form of the current proposal which commits the Appellant to future division of the subject land.
20	It is established law that, in assessing the acceptability or otherwise of a proposed development, planning authorities, and this Court, must make that assessment having regard to the overall intent and purpose and the desired character of the zone within which the development is proposed: City of Mitcham v Freckmann and Ors 1999 EDLR 286. The objectives for the Residential (Central Plains) Zone, as they relate to Policy Area 8, seek "primarily detached dwellings.....undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality" and development which "accords with the desired character of the relevant policy area ....". The Desired Character Statement for Policy Area 8 refers to that character including "a predominance of single-storey detached dwellings on generally spacious allotments with relatively uniform setbacks from road frontages", and "generous proportions of open space, both in front of and behind dwellings, and wide and spacious streetscapes dominated by a combination of street trees and landscaped front gardens".
21	The desired low-density character for the area is reinforced by the following passage:

22	The subject land is located within that part of Policy Area 8 north of Daws/Springbank Roads, suggesting that, while these are references in the Desired Character Statement to development at higher densities occurring in some parts of the policy area, the subject locality is not one envisaged for such development. Further, the Desired Character Statement calls for new development at higher than prevailing densities "being located on larger sites (which may require the amalgamation of several existing allotments) to enable a planned and coordinated development".
23	The locality of the subject land is characterised by relatively large and deep allotments, with dwellings well separated from front and rear boundaries. Allotment areas are typically around 800m², although to the immediate north of the subject land are three smaller allotments of 535m², 639m² and 633m² respectively. All three of these allotments have a depth nearly twice that of the site proposed for the new dwelling.
24	Having regard to all the above, I have concluded that the subject land lies within a locality which presently conforms closely with the character sought to be conserved by new development in Policy Area 8, suggesting that locality is unsuitable for higher density development. The site areas proposed to accommodate the existing and proposed dwellings, at 443m² and 377m² respectively, lie well below the minimum site area for a detached dwelling (500m²) and, on the evidence of both planners, would not constitute low-density development.
25	That said, site area is not necessarily conclusive in determining the acceptability of proposed development. As I observed in my judgment in Dottore and Rocca v City of Burnside [2004] SAERDC 48:

27	Council Wide Principle 18 requires buildings and structures within an established streetscape, and having existing buildings on either side, to be set back the average of the corresponding set-backs of the two adjacent buildings. If the garage to the existing dwelling, which is set back 0.5m on the road boundary, is used for the purpose of setback calculation, the average of that setback and that of the adjoining dwelling to the west (11.0) is 5.75m. The setbacks for the proposed dwelling are 3.4m to a bay window, 4.18m to the living room wall, 5.5m to the study, one bedroom and portion of the garage, and 6.1m for the second portion of the garage. If the setback of the existing dwelling (1.94m) is used for the purpose of this calculation, which, in my view, would be an approach more consistent with the protection of established streetscape quantities, the required setback would increase to 6.47m.
28	Council Wide Principle 19 requires, inter alia, that single-storey buildings and structures (other than domestic outbuildings) be set back a minimum of 5.0m from rear property boundaries. More than half of the southern elevation of the proposed dwelling is set only 2.94m from the rear boundary of its site.
29	Principle 3 for Policy Area 8 requires "new housing and in particular, development on sites comprising two or more dwellings" to "maintain, or where appropriate, enhance the streetscape in the locality through: (a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality....." The front setback of the proposed dwelling and the space around that dwelling is not in my assessment, consistent with front setbacks and spaces around dwellings generally prevailing in the locality.
30	The consequence of these areas of non-compliance with relevant qualitative and quantitative provisions of the Development Plan is to create a setting for the proposed dwelling which is quite different from the setting of other dwellings in the locality. Those dwellings have an average front setback of 8-9m, and an average rear setback (in Bideford Avenue) of 10-11m. This creates a spacious setting for those dwellings and achieves a high degree of consistency with the Desired Character for Policy Area 8. The proposed development would result in the new dwelling occupying a site which, viewed from both Bideford Avenue and from other abutting properties, would lack the spaciousness characteristic of the locality.
31	It could be argued that the subject land, viewed from Bideford Avenue, is necessarily shallower than other allotments to the west, because it is oriented to Ackland Avenue. Against that, however, is the fact that the rear half of the subject land is occupied only by garden beds and vegetation and in that way contributes to the spaciousness characteristic of the locality. The combination of site coverage and rear setback requirements would suggest that extensions to the existing dwelling to achieve the maximum floor area available under current development plan provisions would still leave a substantial area of open space to the rear of the subject land, consistent with the desired character for Policy Area 8. When the objectives and desired character for that area are taken together with the proposal’s failure to meet front and rear setback requirements, I am led inevitably to the conclusion that the site areas proposed for the existing and new dwelling are too small to allow development consistent with the relevant provisions of the Development Plan. I am reinforced in that conclusion by references in the desired character statement suggestive of the subject land being in a locality which is inappropriate for higher density developments.
32	In the light of my conclusions above, I have further concluded that the decision of the Council to refuse the subject proposal was correct, and should be upheld.
33	There will be an order to that effect.