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Dansal v City of Burnside [2006] SAERDC 5 (16 January 2006)

Last Updated: 19 January 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.

DANSAL v CITY OF BURNSIDE

Judgment of Commissioner Green

16 January 2006

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - applicant appeal, refusal by the Council to issue Provisional Development Plan Consent - proposed demolition of two detached dwellings, erection of two detached dwellings and two semi-detached dwellings and associated garaging, filling, excavation, retaining walls and landscaping - Residential Zone and Residential Policy Area 24 Linden Park, and adjoining Residential Policy Area 25 Beaumont Common - local compatibility and harmony (visual amenity and character) with locality and streetscapes and at interface with RPA 25; extent of filling and retaining wall/fencing heights; dominance of garaging building on boundary and to streetscape; environmental design aspects (including energy efficiency, stormwater detention and air-conditioning plant noise), all considered - amended proposal received and considered - Development Plan guidelines sufficiently met - appeal allowed - conditional Provisional Development Plan Consent granted.
Development Act 1993; Development Regulations 1993, referred to.

DANSAL v CITY OF BURNSIDE
[2006] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter comprises an applicant appeal against the decision of the City of Burnside ("the Council") to refuse Development Application No. 180/0441/05, made under the Development Act 1993 ("the Act"), seeking Provisional Development Plan Consent for the erection of two detached dwellings and a pair of semi-detached dwellings (4 dwellings in total) at Hazelwood Park.
2 The reasons cited by the Council for its decision were as follows:

1. The development is considered at variance with Council Wide Principles of Development Control 26 (a) and Principle of Development Control 2 (d) (ii) for the Residential Zone in that bulk and scale of Dwellings 3 and 4 are excessive;
2. The development is considered at variance with Council Wide Principle of Development Control 26 (a) in that the setbacks of all four proposed dwellings are closer to the front boundary than those of the existing adjoining dwellings;
3. The development is considered at variance with Council Wide Principle of Development Control 115 (d) (iv) in that the rear boundary wall for Dwelling 2 is not envisaged by the Development Plan;
4. The development is considered at variance with Council Wide Principles of Development Control 118 (a) and (c) in that the site coverages for dwellings 1, 3 and 4 exceed the respective 40% and 50% maxima;
5. The development is considered at variance with Council Wide Principle of Development Control 120 (e) in that Dwelling 2 accommodates an insufficient amount of private open space;
6. The development is considered at variance with Council Wide Principle of Development Control 25 in that the cumulative presentation of carport and garage is at variance with the presentation of vehicle accommodation in Cooper Place; and
7. The development is considered at variance with Council Wide Principle of Development Control 130 (c) in that the driveway crossover for Dwelling 2 is within 1.5 metres from a Council Street tree.
8. The development is considered at variance with Council Wide Principle of Development Control 115 (d) in that rear setbacks for Dwellings 1 and 2 do not meet the minimum rear setback guideline.

3 A summary of some of the relevant details in this matter is as follows:

Registration date of application:	5 May 2004
Subject land address:	66 and 68 Devereux Road (corner Cooper Place), Hazelwood Park
Existing use:	Two detached dwellings and associated carports, garaging and outbuildings
Proposal:	Demolish existing buildings; erect two, single storey detached dwellings (Nos. 1 and 2) fronting Devereux Road and a pair of part two storey semi-detached dwellings (Nos. 3 and 4) fronting Cooper Place, with associated garaging, filling, excavation, retaining walls, fencing and landscaping
Relevant authority:	City of Burnside
Relevant Development Plan:	Burnside (City) – consolidated version 17 March 2005
Relevant Zone/Area:	Residential/Residential Policy Area 24 – Linden Park (MAP Bur/15)
Date of decision:	23 August 2005
Appeal lodged:	31 August 2005
Conference concluded:	23 September 2005

4 The Court viewed the subject land, locality and relevant streetscapes on the morning of Thursday, 10 November 2005 in the presence of the parties. Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, Mr G Vincent MPIA, an experienced consultant town planner (Exhibit A7); and for the respondent Council, Ms W Bell RAIA, FPIA, an experienced consultant town planner and a qualified but not practising architect (Exhibit R2) and Mr J Watson, a person with qualifications in architectural studies and town planning, and a Development Officer – Planning of the Council (Exhibit R3), who also assessed and made a recommendation to the Council (Exhibit R1, pp3-38), concerning the application.

The Subject Land

5 The subject land located on the north-eastern corner of Devereux Road and Cooper Place, comprises all of Allotments 9 and 10, FP15762, contained in Certificates of Title Volume 5250 Folio 929 and Volume 5173 Folio 69. Allotment 10 (north side) also enjoys rights over a narrow easement (1.52 metres in width) perpendicular to its northern boundary and for a distance of some 13.64 metres.
6 The land has a frontage to Devereux Road of 27.51 metres, a corner cut-off of 4.32 metres, a frontage to Cooper Place of 42.24 metres, a depth from Devereux Road varying from 45.29 to 45.31 metres and a depth from Cooper Place of 30.56 metres, producing a site area of approximately 1,381 square metres.
7 The subject land contains two single storey dwellings both facing Devereux Road, one a conventional gable fronted dwelling at No. 66 (northern side) and the other a conventional hipped roof dwelling at No. 68 (south side), which also has a frontage to Cooper Place. They are both very modest, of 1950’s vintage and in an average to poor external condition, particularly the outbuildings of No. 68 fronting Cooper Place. The dwelling at No. 66 includes a single driveway on the southern side and a solid wall built to the northern boundary (but set back some distance from Devereux Road), whilst the dwelling at No. 68 includes two double width crossovers to Cooper Place, a concrete block outbuilding built to the Cooper Place alignment, a high masonry/Colorbond fence on Cooper Place frontage and a low fence and hedge to Devereux Road.
8 The land has a fall from the south-eastern corner to the north-western corner of approximately 3.09 metres with the existing respective dwellings having finished floor levels of RL101.34 (No. 68) and RL100.65 (No. 66). Across the Cooper Place frontage the fall is 1.7 metres and across the Devereux Road frontage 1.34 metres. There is no mature or substantive vegetation of any note located on the land. Two very low "Prunus" street trees exist in the Devereux Road verge and there are three mature trees along the Cooper Place frontage. Photos of the land and locality are included in the body of Exhibit A7, Attachment 2, and in Exhibit R2, Attachment 2, as well as in the copy documents, Exhibit R1, pp10, 13, 18 and 19.

The Proposal

9 An amended proposal contained in Exhibits A1, A2, A3 and A4, with Exhibit A5 depicting colour perspectives of each dwelling, was presented for consideration by the Court. A range of relatively minor amendments (including increased front setbacks to most dwellings, floor area reductions for three dwellings, eaves added for two dwellings, window adjustments, landscaping detailing and tapered driveways for each dwelling) have been made post the Council decision and can be properly considered and determined by the Court.
10 The number and nature of the rooms and accommodation proposed and the materials, finishes and colours for each are thoroughly detailed in the Statement of Mr Vincent (Exhibit A7, pp5 and 6), they are not at issue between the parties, (though noting that for dwelling No. 1 it is marginally over the site coverage figure and for dwelling Nos. 3 and 4 they are marginally over the guideline for total floor area, discussed below), and I find them to be acceptable.
11 A comprehensive Development Data Table with detailed calculations was also prepared by Mr Vincent (Exhibit A7, pp6 and 7). It was acknowledged and accepted by both Ms Bell and Mr Watson, and was not challenged in terms of its accuracy before the Court. It is to be relied upon. It would result in some adjustments being made to the numerical content of the statements of Ms Bell and Mr Watson, and perhaps to some of the conclusions they initially made.
12 The single storey detached dwellings (Nos. 1 and 2) are 5.6 and 6.1 metres in height, setback 6 metres to the main face (5.4 metres to the portico and 7.0 metres to the northern double garage) from Devereux Road, and for the corner dwelling (No. 2), 3.2 metres to the main face and 3.8 metres to the double garage from Cooper Place. They have site areas in the order of 350 square metres and frontages in excess of 15 metres. Building site coverage is 41.5 and 40% and together with paved driveways is 50 and 45.2% respectively for dwelling Nos. 1 and 2. The side setback for dwelling No. 1 is zero for the double garage (a length of 6.3 metres and height of 3 metres), 1.5 metres for each to the internal new side boundaries – 3 metre total dwelling separation, and zero for the rear (viewed from Devereux Road) or side (viewed from Cooper Place) double garage of the southern, dwelling No. 2. Each has a north to north-east facing main private open space area and living rooms orientation. These dwellings have a finished ground floor level of 100.2 (dwelling No. 1) – about 0.7 metres above footpath level in the north-western corner and 101.2 (dwelling No. 2) – about 1.2 metres above footpath level in its north-western corner and about at grade with the footpath in the south-eastern corner to Cooper Place.
13 The two storey semi-detached dwellings (No. 3 on the west and No. 4 on the eastern side) are some 7.9 metres in height for the part two storey elements and are setback 7 metres to the main face (6.5 metres to the portico) from Cooper Place. They each have frontages of a little over 11 metres and site areas of some 340 square metres. Building site coverage is 39.5%, together with driveways it is 48.3% and with total floor area to site area of 51.6% (plot ratio 0.516). Side setbacks are 1.5 metres to the outer eastern and western sides, and 4.8 metres to the rear, northern boundary. However, the upper levels are well set-in from the sides by 5.2 metres from the east and west, and by some 10.4 metres from the rear. Each has a northerly (north-west for dwelling 3 and north-east for dwelling 4) main private open space area and living rooms orientation. These dwellings have single garages and an open paved area to the outer side capable of use as an open car parking space. They are to have a finished floor level at ground level of some 101.7, some 0.7 metres below footpath level in the south-eastern corner and about equal to the level in the south-western corner of the site for No. 4 and 3 respectively. Some internal retaining walls are required (between dwelling Nos. 1/2 and dwelling No. 3; and between dwelling No. 1 and dwelling No. 2) ranging from zero to 1.4 metres in the north-west corner of the site for dwelling No. 3 and the north-eastern corner of the site of dwelling No. 1 and to about 1 metre between dwelling Nos. 1 and 2. In each case, a 1.8 metre Colorbond fence is proposed atop as well as to the perimeter external boundaries to the north and east.
14 No argument was put to the Court that the dwellings are not intended, as shown on the plans, to be located on individual sites held exclusively with the respective dwelling. Hence, on that basis they are appropriately designated as being for two, detached dwellings and a pair of semi-detached dwellings with associated garaging, landscaping, filling and excavation, retaining walls and fencing. A further land division application is expected to follow if consent is forthcoming in this matter. That is usual for this form of development.

The Locality

15 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 boundary is to be defined in this matter primarily on visual and character perception factors, particularly along Devereux Road in a north-south direction and along Cooper Place and Sturdee Street in an east-west direction – that is the streetscape characters of those roads are an important consideration.
16 I have noted and had regard to the extent of the locality put forward by Messrs Vincent and Watson, and Ms Bell. They are moderately similar – that of Mr Vincent the most curtailed, particularly to the west, and that of Ms Bell, the most extensive, particularly to the west, north and east. I define the locality to extend as follows:

• to the north along Devereux Road for some 110 metres to include numbers 43 (west side) and 52 (east side);
• to the east along Cooper Place for some 100 metres to include Nos. 11 (north side) and 12 (south side);
• to the south along Devereux Road for some 150-170 metres to include the bowling club and greens (west side) and No. 80 (east side); and
• to the west along Sturdee Street for some 150 metres to include the nursing home and Nos. 57 (north side) and 54 (south side).

17 Land use within the locality includes predominately residential use (mostly detached dwellings, a few semi-detached dwellings, a residential flat building, 3 group dwellings and part of a nursing home), together with the bowling greens, tennis courts, open space and car park of Miller Reserve and local centre shops (diagonally opposite the subject land) all on Devereux Road to the south-west. Devereux Road is designated as a Primary Collector Road (MAP Bur/1 (Overlay 1)), and includes a bus route with bus stop in front of No. 66. Sturdee Street/Cooper Place perform as secondary collector roads (connecting to Portrush Road to the west and Glynburn Road to the east).
18 Dwelling stock comprises predominantly single storey dwellings (but with several two storey exceptions, such as at 1, 3 and 14 Cooper Place; 49, 54, 56, 74 and 80 Devereux Road), in a mix of styles from the inter-war 1930s to the post-war periods with several of more contemporary style including some built in the last 10 years or so. The condition of dwellings also appears to be mixed, with many in good condition but some in average condition and a few (including those on the subject land) in relatively poor condition.
19 Dwellings are generally sited on north-south oriented allotments to Cooper Place/Sturdee Street and on east-west allotments along Devereux Road. Street frontages are in the range of 15-20 metres, with dwelling setbacks from primary street frontages in the range of 6-13.5 metres (the dwelling on the subject land at No. 66 being the latter), and from secondary frontages – corner sites – of zero to 5.5 metres (the dwelling on the subject land at No. 68 being the former). Many, but not all, are in the moderate range. The local shop building diagonally opposite is sited on the front boundaries to both Devereux Road and Sturdee Street, and with an awning over the former. Side boundary setbacks generally range from zero to 5 metres. Established, in some cases well landscaped front gardens are common, with a mix of fencing heights, styles, materials (pickets, metal, low masonry walls, brush, Colorbond, hedges) and patterns. Devereux Road has moderate width, grassed verges with mostly mature street trees of mixed species, whilst Cooper Place and Sturdee Street have narrower verges but with more consistent species of mature street trees. Both streets have relatively wide road reserve widths in the order of 20 metres. Vegetation on view in front gardens and in road verges adds to the amenity levels, as do the recreation and open space facilities and features to the south-west on Devereux Road. Negative features are the appearance and condition of some buildings, overhead electricity infrastructure and traffic movement impacts.
20 The streetscape character as described, with varied built form, styles, siting and fencing, but with more consistent road and verge widths and vegetation, are not found to be distinctive, but rather relatively typical of many, if not most in Linden Park (Policy Area 24) and the suburb of Hazelwood Park (adjoining Policy Area 25), and not of a particularly distinguishing appearance. They are considered to be moderately attractive. The locality also does not in my assessment, exhibit a cohesive character or particular sensitivity (Residential Zone Objective 5), although a corner site is always somewhat more visually obtrusive.
21 The boundary between Policy Areas 24 and 25 is not evident on the ground within the locality in terms of built-form, amenity or character, notwithstanding some policy distinctions. There is a clear intent with Policy Area 24 designated along both sides of Devereux Road, to allow an increase in residential density compared to much of the current development or as allowed for in Policy Area 25.

Relevant Development Plan Provisions

22 I have noted the various provisions referred to by the witnesses and by counsel, and find the following to be those provisions in the relevant Development Plan to be of particular use in the assessment of the proposal before the Court and to the key issues for assessment.

COUNCIL WIDE (CW hereafter)
Objectives: 5, 12, 14, 15, 16, 17, 22, 25, 27, 29, 51, 52, 53, 54 and 55; and
Principles of Development Control: 3, 4, 15, 23, 25, 26, 28(a), 29, 31, 52, 53, 61, 62, 71, 74, 114, 115, 117, 118, 119, 120,122, 125, 126, 127, 129, 130, 132, 133, 134, 135, 136, 137, 140, 141, 145, 146, 147, 151 and 152.

RESIDENTIAL ZONE (RZ hereafter)
Objectives: 1, 2, 3, 5 and 8; and
Principles of Development Control: 1, 2, 3, 4 and 5.

RESIDENTIAL POLICY AREA 24 – LINDEN PARK (RPA 24 hereafter)
Objective: 1; and
Principles of Development Control: 1, 2, 4, 5, 7 and 12.

RESIDENTIAL POLICY AREA 25 – BEAUMONT COMMON (adjoins to the east and opposite to the south, RPA 25 hereafter)
Objective: 1; and
Principles of Development Control: 1, 3, 4 and 6.

TABLE: Bur/5
MAPS: Bur/1 (Overlay 1); Bur/7 and Bur/15

Processing

23 I note that having regard to the Development Plan and the Development Regulations 1993, the Council classified the proposed development as a Category 2, I presume that appropriate notification occurred, I note that five representations were received, and that no such persons applied to be joined as a party and nor were they called to give evidence in the Council’s case.
24 It would also appear that no referrals were required by Schedule 8 of the Regulations to government agencies, although I note that the appellant applicant involved the officers of the Public Transport Division, Department for Transport, Energy and Infrastructure, concerning the moving of a bus stop pole approximately 1 metre to the north and they provided an email response contained in Exhibit A6.

Planning Assessment

25 Section 33(1)(a) of the Act requires the relevant authority (the Council) and on appeal, this Court, to assess a development application against the provisions of the relevant 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 that Plan (listed above) that provide the firm basis for decision making.
26 In terms of s35 and the provisions of the relevant Development Plan, particularly the Residential Zone (RZ) and Residential Policy Area 24 (RPA 24), the amended proposal is neither complying nor a non-complying development. It is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pro’s and con’s and whether the proposal is conducive to the distilled overall intent, purpose and desired character and amenity of the Zone and Policy Area and in the specific locality and streetscape contexts. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory, legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. It is also not appropriate to compare the proposal with, or test it against, other alternatives or a so-called ideal design solutions or planning outcome. Ultimately, a planning judgment is to be made on a fact and degree basis and whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant factors, warrants consent.
27 Having regard to the views of the witnesses and my assessment, it is reasonably evident that the following are generally acceptable having regard to the Development Plan guidelines:

• demolition of the existing dwellings and outbuildings (not Heritage Places and therefore comprising complying development pursuant to Reg 8 and Schedule 4);
• continued residential land use;
• on a corner site and with a combined subject land area of greater than 1200 square metres (RPA 24, Principles 4 and 7), detached and semi-detached dwelling type on the proposed individual site frontages and site areas proposed (also meeting the thrust of RPA 24, Objective 1(a)(b) and having regard to the second mentioned variation (b));
• one storey and part two storey buildings in-principle and at the heights proposed (in the light of CW Principle 117, RZ Principle 3 and RPA 24, Objective 1 and Principle of Development Control 1 and the locality characteristics including the adjoining part two storey dwellings to the east);
• site coverage of built form, including together with driveways, having regard to CW Principle 118(a) and (b), and with assessment hereafter with respect to total floor area Principle 118(c) and site coverage variances for dwelling Nos. 1 and 2;
• private open space for each dwelling (in the light of CW Principle 120);
• access and car parking for each dwelling (in the light of several CW provisions), including the new access to dwelling 1 onto Devereux Road, necessitating a 1 metre relocation of the bus stop pole to the north; retention of the street tree adjacent the angled driveway to dwelling No. 2 from Cooper Place tapered to some 4-4.5 metres at the boundary and 3.5 metres at the kerb (with assessment later on tapering double driveways for additional landscaping);
• building style (in the context of the varied locality building styles and having regard to RPA 24 Objective 1(a));
• extent of overlooking or overshadowing complying with relevant Development Plan guidelines and acceptable to all three planning witnesses, and having regard to CW Objective 15 and Principles 23, 125, 126, 127, 134, 135 and 136;
• landscaping species (though not predominately indigenous species) but compatible with gardens in the locality; and
• several other functional aspects of the proposed layout.

28 Having regard to the evidence and my assessment, the key areas for detailed consideration and the crux for decision-making revolve around primarily local compatibility and harmony (inclusive of visual amenity and character consequences) with the locality and the streetscapes, including at the interface with RPA 25; and to a lesser extent environmental design aspects of the proposal.
29 I agree with Mr Vincent to the extent that I do not assess the particular area to be of a cohesive character (with the lack of consistency and variety described above) or noteworthy visual sensitivity as encouraged by RZ Objective 5, nor that there are existing dwellings in a distinctive streetscape with positive elements that need to be complemented by new development (RPA 24, Principle 1) – having regard to the characteristics of the locality as described above under The Locality. Hence, certain more onerous design tests do not strictly apply in the assessment of the development proposal, though they have still received consideration. Ms Bell and Mr Watson, to the extent that they considered there to be a cohesive character and sensitivity and a distinctive streetscape, placed heavy weight on the street trees, verge width and front gardens. These are not compromised by the proposal.

Local Compatibility and Harmony

30 Particularly relevant Development Plan guidelines to this area of assessment are as follows:

RESIDENTIAL POLICY AREA 24 – LINDEN PARK
.....
OBJECTIVE

Objective 1: Maintenance and enhancement of the low scale and low-to-medium density residential character that is derived particularly from:

(a) residential development, including detached dwellings, in a wide variety of styles, predominantly of the interwar period, near Greenhill Road, and the post-war period;

(b) limited opportunity for a greater range and increased density of residential development, notwithstanding the proximity of the Policy Area to the District Centre Zone and to public transport services;

(c) moderate building set-backs to streets; and

(d) generally open, well-established, front gardens, and grassed verges.

Acknowledged, significant variations from the desired character, or the prevailing character or environmental conditions, forming, nevertheless, part of the character that is to be maintained and enhanced, are found:

.....

(b) in the interface with the Local Centre Zone.

PRINCIPLES OF DEVELOPMENT CONTROL
Local Compatibility
1 Development should complement the scale, bulk, siting and positive elements of existing
dwellings where a distinctive and attractive streetscape character exists.
.....

RESIDENTIAL POLICY AREA 25 – BEAUMONT COMMON
.....
OBJECTIVE

Objective 1: Maintenance and enhancement of the low scale, low density residential character that is derived particularly from:

(a) one-storeyed, detached dwellings, predominantly from the post-war period, in a variety of styles, with more recently built dwellings, of one or two storeys, on rising ground towards the south-eastern corner;

(b) streetscapes enhanced by open, well-established, front gardens, grassed verges, and views of public open space;
.....
PRINCIPLES OF DEVELOPMENT CONTROL
Local Compatibility
1 Development should:

(a) conserve and enhance the character of the Policy Area, described in Objective 1, and significant trees therein; and

(b) complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape character exists.

.....
RESIDENTIAL ZONE
.....
PRINCIPLES OF DEVELOPMENT CONTROL
.....

2 Development should be designed to:

......

(d) be consistent with and contribute to achievement of the objectives for the relevant policy area, having due regard to:

(i) siting;

(ii) mass and proportion;

.....

(v) roof form and pitch;

.....

(vii) verandas, eaves and parapets;

.....

(ix) landscaping.

COUNCIL WIDE
.....

PRINCIPLES OF DEVELOPMENT CONTROL
.....

25 The design of buildings should be of a high standard and related to adjacent buildings and other features which contribute to streetscape quality.

26 To maintain the harmony of built-form character within a streetscape, buildings should:

(a) seek to maintain the continuity of vistas and existing building set-backs;

(b) not be set-back a lesser distance than the nearby buildings with frontage to the same road unless such distance is consistent with the minimum set-back prescribed in the relevant zone and policy area; and

(c) be set-back a greater distance if the proposed building is of greater bulk or height than other buildings fronting the same road, unless the taller or bulkier portion of a building is positioned towards the rear of its site, or the building is effectively screened, so that it will not dominate views from the road.

31 Firstly, with respect to the scale of the proposed buildings, clearly the single storey height, width and length of the two dwellings (Nos. 1 and 2) fronting Devereux Road, with similar scaled development adjoining and opposite, comprise low scale and they are considered to be compatible and in harmony to that streetscape and part of the locality. The development to Cooper Place (dwelling Nos. 3 and 4), whilst part two storey, have modest heights of 7.9 metres each above natural ground surface level (less than the 9 metre guide); the eastern dwelling at No. 4 is set below the adjoining footpath level and dwelling No. 3 is comparable with the footpath level and both are on the low side of the road; the two storey element (excluding balcony) is setback from the front boundary over 10.5 metres, a similar distance to the adjoining dwelling at 1 Cooper Place; they would be of comparable or lesser height than the next two adjoining dwellings at 1 and 3 Cooper Place; they are set back to the sides at upper level; with all of the above factors diminishing their apparent scale. The width of the combined dwellings and their lengths are comparable to those of other large dwellings along Cooper Place. The fact that adjoining RPA 25 seeks low scale, single storey development, is offset by the reality of the characteristics of the next two dwellings at 1 and 3 Cooper Place in that policy area. Despite the view of Ms Bell, I assess the proposal overall to be of low scale, and in that regard to be sufficiently compatible with adjoining and adjacent development.
32 Secondly, turning to the aspect of bulk. As mentioned, Ms Bell and Mr Watson acknowledged the accuracy of the calculations of Mr Vincent with respect to site coverage, coverage of all impervious surfaces and total floor area to site area (plot ratio) and in some cases the inaccuracy of their figures on which their written opinions relied. The former two factors have development guideline criteria of 40 and 50%, largely met by all dwellings, though dwellings 1 and 2 are some 5 square metres above the guide of 40%, a relatively minor and inconsequential amount with respect to perception of bulk. These guidelines also provide an indication and a contribution to scale and support the assessment that the development overall is sufficiently low scale. Plot ratio (or total floor area to site area) is the key town planning criteria governing actual bulk of a building, although perceptions of bulk might be derived from a combination of other factors including setbacks and siting, roof form and shapes, floor levels relative to viewing positions and the degree of screening of a building by vegetation (including street trees). For this development proposed dwelling Nos. 1 and 2 being single storey and 41.5 and 40% total floor area (or 0.415 and 0.4 plot ratio) are clearly non-bulky buildings, highly compatible with and in harmony with their streetscape and the locality. Dwelling Nos. 3 and 4 with a total floor area percentage of 51.6% (0.516 plot ratio), marginally exceed the guideline in CW Principle 118(c) by 1.6% or about 5 square metres each. If removed from the depth of each dwelling (at ground or upper level), it would not perceptibly change the apparent bulk viewed from the street at higher level, or from adjoining dwellings. However, I agree to an extent with Ms Bell that the upper levels of each and their joined roof form with a single east-west linking ridge of about 12 metres width, provides an element of bulk not typical in the streetscape or locality, although the two storey steep pitched roof dwellings at 1 and 3 Cooper Place adjoining to the east (and in RPA 25) are not dissimilar in this regard. Whilst the roof form could be amended to separate it into two sections and with hipped roof angles between, I assess that the degree of reduction of bulk is not warranted in the locality circumstances. Hence, whilst there is a degree of variance regarding bulk of dwelling Nos. 3 and 4, I assess that they are sufficiently compatible and in harmony with dwellings adjoining and generally in the Cooper Place streetscape and in the locality.
33 Thirdly, turning to a central consideration in this matter of siting and setbacks to boundaries of the proposed dwellings. A moderate setback to streets is sought by RPA 24, Objective 1, clause (c), reinforced by CW Principle 114(a), and the Table in Principle 114 sets a minimum guideline of 6 metres, except that on corner sites, applicable to the subject land, an average of the front setbacks of dwellings on adjoining sites is sought and from the secondary road (in this case Cooper Place for dwelling No. 2), a setback of 3 metres is envisaged. CW Principle 115 provides qualitative and quantitative guidelines for side and rear boundary setbacks at ground level (specified for floor levels or less than 1.5 metres above ground level) to side boundaries of 1.5 metres or zero except for a wall not more than 3 metres in height having a length of not more than 8 metres which may abut a side boundary and to rear boundaries of 4 metres, and at the upper level of 4 metres to the side and 8 metres to the rear boundary. Dwelling No.1 meets some of these guides, except for the small portico entrance to Devereux Road (at 5.4 metres) and rear bay windows to the new internal rear boundary of 3.6 metres. These are minor variances not materially affecting vistas, visual amenity or streetscape character. The issue of obtrusiveness of the garage wall and its north-western corner from Devereux Road is assessed later.
34 Dwelling No. 2 on the corner also has a small portico entrance to Devereux Road (at 5.4 metre setback) and a zero rear internal boundary (as viewed from Devereux Road) or side internal boundary (as viewed from Cooper Place) setback of the double garage – meeting CWP 115(d)(iv). On a corner site and as viewed from the secondary, Cooper Place frontage, and in the light of the ugly buildings built to the street boundary being replaced, this is considered to be acceptable and the siting generally, for both dwelling Nos. 1 and 2, is sufficiently compatible and in harmony with the wide range and mix of setbacks in the locality and along Devereux Road, including on the north-western corner opposite at 53 Devereux Road. The front setbacks are perhaps marginally at variance with the phrase "moderate setbacks".
35 Dwelling Nos. 3 and 4 meet all of the numerical setback guidelines in Principles 114 and 115 and having regard to the appropriate tapering of setbacks at ground floor level commencing from the setback of the proposed corner dwelling No. 2 garaging of 3.8 metres, to the front setbacks of the dwelling existing at 1 (and 3) Cooper Place of some 9 metres, and particularly a comparison of upper level setbacks from the street, and also considering the side setback gap of 2.8 metres on each side at the ground level, I assess the front setback to be sufficiently "moderate" and all setbacks to provide sufficient compatibility and harmony with the streetscape of Cooper Place, vistas and visual amenity of the locality. I do not agree with the level or weight of concern about the siting/setbacks of the dwellings as expressed by Mr Watson in particular and to a lesser extent Ms Bell. In that I agree with Mr Vincent.
36 Fourthly, the siting proposals together with driveway tapering and garaging elements for the dwellings and the absence of front walls or fences, provides the components to achieve (and in due course maintain) open front gardens of substance that will also assist in maximising local compatibility and harmony in the streetscapes and locality. The tapering of driveways creates a driveway width at the property boundary of some 3.5, 4.0, 3.5 and 3.5 metres respectively for dwellings numbered 1 through to 4. Whilst in the case of dwelling Nos. 1 and 2, the depth of "garden" to the front dwelling alignment is reduced, considering the under-developed, un-maintained and relatively unattractive front gardens presented to the Devereux Road currently on the subject land, and the ugly Colorbond fence and front boundary building to Cooper Place, and in the light of the specific landscaping proposals and details in Exhibit A2, I assess that there will be a significant enhancement to the visual amenity of the streetscape and the locality upon full implementation of the development proposal and the landscaping.
37 Fifthly, the extent of filling and with limited excavation, and in a few locations the proposed height of retaining walls and internal side/rear fencing was assessed as being at variance with Plan guidelines and of concern to Ms Bell and Mr Watson (but not Mr Vincent). For the northern dwelling No. 1 to Devereux Road, at the lowest level of all proposed dwellings, there would be little if any fill, and with perhaps minor excavation to 300mm to its rear area. This would mean, as now, a retaining wall to the adjoining property of 64 Devereux Road of perhaps up to 0.7 metres tapering to its existing height at the front boundary and with a 1.8 metre Colorbond fence to be located on the boundary behind the garage on the rear northern side.
38 For the corner dwelling No. 2, at an intermediate proposed floor level, there would be filling in the order of 400-600mm (Mr Vincent) and virtually no excavation. This would mean a retaining wall along the northern side of that site, tapering from about 1 metre in a central section to minimal height at the front boundary and with a 1.8 metre Colorbond fence intended on top. From Devereux Road and given the landscaping proposals in Exhibit A2, provided the fence tapers to 1.2 metres at the front boundary, this retaining wall would not be highly evident.
39 For the western most dwelling of the pair (No. 3) fronting Devereux Road, there may be minor 300mm excavation in the front south-eastern corner and the dwelling would be consistent with the level in the south-western corner of that site and with filling to achieve an FFL 101.7 and similar external rear yard level, of between 400 to 1500mm in the north-western corner. This would require a retaining wall along the internal rear boundary to dwelling No. 1 and the rear/side boundary to dwelling No. 2 of between 500mm to 1500mm (and with a 1.8 metre fence atop). Along the combined rear boundary (with the rear of dwelling No. 4), to the side/rear boundary of the neighbouring 64 Devereux Road, between 1500mm in the north-west corner to 650mm in the north-eastern corner and with the 1.8 metre fence atop is proposed.
40 For the eastern dwelling of the pair (No. 4), minimal if any excavation on the front eastern side is required and with filling ranging from zero in the south-eastern corner to approximately 1000mm to the rear and north-western corners, producing a retaining wall of no more than 550mm to the north-eastern part of the eastern boundary and with 1.8 metre fencing atop.
41 The only relatively minor area of concern to me in the light of the Plan guidelines, is the level set for dwelling No. 3 and its north-western corner. This could, and I assess should (so as to minimise the extent of filling and height of combined retaining wall/fencing), be reduced by some 300-500mm to achieve a retaining wall in the north-western corner of no more than 1 metre. There are several alternatives to achieve this including: reducing the whole of the ground finished floor level of dwelling No. 3 and/or reducing the rear only ground finished floor level with a few internal steps and/or reducing the rear external paving and lawn areas in a stepped fashion. With such a relatively minor amendment, the visual amenity levels for both future internal site occupants of dwelling Nos. 1 and 2 and occupants of the dwelling to the north at 64 Devereux Road would be sufficiently maintained. On sloping land in the locality, such walls and fences are relatively common as a design solution.
42 Finally, the somewhat elevated appearance of the north-western corner and side wall of the double garage of dwelling No. 1 to Devereux Road and consequences for streetscape character and visual amenity as viewed by south-bound motorists, cyclists and pedestrians, requires further careful consideration. As proposed it would be more prominent than the existing buildings on the site and somewhat more prominent than a similar forward positioned, side boundary garage wall opposite at 53 Devereux Road – on the low side and as viewed from the frontage of 51 Devereux Road, which has lattice and some vegetation screening to soften it. I acknowledge that the proposed wall may only be some 1.2 metres higher than a typical 1.8 metre boundary fence, and located on a northern side, not giving rise to overlooking or overshadowing issues to the south. However, I consider that some further amendment is required to minimise its visual and streetscape impact to an acceptable level. Alterations may include setting the double garage back a further 1 metre from Devereux Road whilst maintaining an 8.5 metre length in the rear private open space area, and the inclusion of lattice and creepers on the northern wall (with approval from the adjoining owner); or reduction in the garage width by 0.6 – 0.9 metres making it a large single car garage and the planting of a row of slender trees/shrubs along the intervening boundary such as "Pencil" pines, Pittosporum "Screen-master" or other.
43 On a consideration of the evidence which comprised mixed opinions, the Development Plan guidelines applied in the local context including regard to RPA 25 adjoining, my assessment, and the relative ease and benefits of achieving further potential amendments to the FFL ground floor level of dwelling No. 3 and rear yard levels and as a result reduced rear retaining walls height; and to the double garage for dwelling No. 1 to reduce its visual impact, I consider that the development proposal if amended, could then sufficiently achieve local compatibility and harmony with the streetscape character, visual amenity of the locality and the overall intent of the RPA 24.

Environmental Design Aspects

44 Firstly with regard to potential noise nuisance from air-conditioning plant (having regard to CW Objective 8 and Principle 122), to adjoining owners at 64 Devereux Road and/or 1 Cooper Place (or indeed the occupants of one or more of the other dwellings on the site), a condition of consent is required to address location and the minimisation of such impacts to a reasonable level.
45 Secondly, in terms of stormwater management (collection, treatment, re-use, discharge), I note the indicative stormwater proposals on sheet 3 of Exhibit A1, including 2,000-litre rainwater tanks to each dwelling and soakage pits to at least dwelling Nos. 3 and 4 and with other pipes, drains and sumps shown. The Court received no technical evidence regarding these proposals. Indicatively, they appear to meet the intent of CW Principle 74, 151 and 152 to the extent appropriate at provisional development plan consent stage, and a condition of consent to ensure the detailed scheme is to the Council’s satisfaction at the detailed design stage, would be appropriate.
46 Thirdly, there is the issue of energy efficiency or access to sunlight (CW Objectives 8 and 55; and Principles 134-137). Generally, the design of the dwellings (including the energy conservation measures in Exhibit A3), taking account of the fact that two dwellings are orientated north-south and two orientated east-west (given the frontages, dimensions, area and slope of the subject land), include reasonable design measures as outlined by Mr Vincent in Exhibit A7 at p18 and orally, though there was some criticism from Ms Bell only, about western facing windows. However, I discern from the plans for dwelling Nos. 3 (and 4) at the upper level to bedroom 3 and the activity room, an outline of an awning to those windows; I understand that the west facing windows to the meals area of dwelling No. 3 and pergola (marked as a loggia), is intended to provide some shading; and with regard to the windows to bedroom 1 and study of dwelling No. 1, and bedroom 2 and study of dwelling No. 2, those windows are of moderately narrow more vertical proportion and four medium sized deciduous tree growing to 10 metres are proposed (Exhibit A2) to provide some shading in due course. Verandahs, pergolas or eaves to those elevations would, in my assessment, be architecturally and stylistically inappropriate. However, it would be reasonable and appropriate to require, either by condition or notes on the plans, awnings to the eight windows in question.

Conclusions

47 In terms of dwelling density, the proposal is in the low-medium density range, meeting the specific dwelling density guidelines in RPA 24 and it is appropriately located on a Primary Collector road, serviced by a bus route and with local shops and recreational facilities nearby. Many other aspects about the proposal are also acceptable having regard to the Plan guidelines (refer to para 27 above). Ms Bell conceded that the proposal is consistent with the intent of the Residential Zone. The assessment of local compatibility and harmony and of key guidelines in RPA 24 and elsewhere in the Plan, revealed the following:

• sufficiently low scale of built form development;
• marginal bulk of dwelling Nos. 3 and 4, particularly the roof form but acceptable in the context of the adjoining dwellings in Cooper Place;
• siting, setbacks and site coverage of all dwellings (excepting the issues of double garage for dwelling No. 1), being acceptable in the locality and streetscape contexts;
• adequate maintenance of front garden areas would be achieved in the design by the tapered driveways, maximised planting areas and setbacks as well as the detail in the landscaping proposals in Exhibit A2;
• generally acceptable levels of filling with minimal excavation, except for the finished floor level (and filling) for dwelling No. 3 and its rear yard areas, which, to sufficiently minimise the extent of filling and retaining wall height, should be reduced in the north-western corner; and
• the north-western corner and northern boundary wall appearance of the double garage for dwelling No. 1 should be modified to either provide greater set back from the front boundary and side lattice/creepers; or increased side boundary setback and screen planting intervening on the northern side.

48 Subject to the possibility of minor amendments mooted above, the proposal could achieve acceptable local compatibility and harmony with the locality and the applicable streetscapes.
49 Environmental design considerations including noise nuisance, stormwater management and energy efficiency and access to sunlight, can all be appropriately dealt with by conditions of consent in addition to the design features incorporated in the plans and other exhibits.
50 Overall, I found the evidence of Mr Vincent to be the more comprehensive, thorough and balanced and to be preferred, though certain aspects of the evidence and reservations held by Ms Bell, particularly about the extent of filling and levels for dwelling No. 3 and its rear yard and retaining walls, and the appearance of the north-western and northern side of the garage of dwelling No. 1, were supported.
51 Whilst the assessment and evidence (including that of Mr Vincent), revealed some variance to Development Plan guidelines such as to CW Principle 114 (front setbacks to dwelling Nos. 1 and 2); Principle 115(c)(d) (rear boundary setback); Principle 118(a) - site coverage being 1.5% or 5.3 square metres over the guideline, and 118(c) – total floor areas for dwelling Nos. 3 and 4 being 1.6% or 5 square metres over the guideline; and Principle 120(g) – private open space shape; the departures are not fatal to the application either individually or overall and in combination with each other. They are assessed not to be so significant to warrant rejection of the proposal. I do not assess the proposal to be an over development and subject to minor improvements/amendments as mooted above, it can sufficiently meet the guidelines in and general intent of RPA 24 including Objective 1 and Principle 1 as well as sufficiently meeting RZ Objectives 1, 2, 3, 5 and 8 and Principles 2, 3, 4, 5 and 6, subject to the attachment of conditions of consent. Whilst exceedingly subjective, I also assess the proposal to be of sufficient high quality and good design standard.

Amendments – Conditions

52 I issued a Memorandum to the parties dated 9 December 2005 and afforded the appellants the opportunity to make further minor amendments in response to the above assessment and aspects that remain in doubt, and present those to the respondent Council and the Court for further consideration. That opportunity was taken up. The parties also conferred with regard to conditions of any Provisional Development Plan Consent to be granted, including a consideration of certain topics for conditions as referred to above. In terms of procedural fairness, this course also enabled the respondent Council to make further submissions to the Court if it wished. The Council made such submissions, refer below, and put forward five conditions it sought to attach to any consent granted. The appellants were agreeable to the substance of the five conditions presented.
53 The matter resumed on 11 January 2006 where such amendments, submissions and recommended conditions were presented to the Court.
54 Turning to the three main outstanding issues, and firstly with respect to the height of the retaining wall in the north-western corner of the site for dwelling No. 3 (of some 1.5 metres with fence above), to be reduced to minimise visual impact to an appropriate level and with one or more options available. The appellants chose to reduce external levels to the rear of dwelling Nos. 3 and 4, necessitating the placement of rear steps to each and reducing the levels by some 450mm such that in the north-western corner the retaining wall would be in the order of 1.05 metres (refer Exhibit A11). In my assessment, that amendment will be a satisfactory solution and sufficiently minimise visual impact of a combined retaining wall and fence to the adjoining northern neighbours. The Council representatives were agreeable to that improvement.
55 Secondly, with respect to the appearance of the double garaging for dwelling No. 1 and particularly its northern side wall to be reviewed to minimise visual impact on the streetscape and with one or more options available. The advocate for the appellants submitted an amendment (Exhibit A10) as the appellants’ preference, which involved "flipping" the layout of dwelling No. 1 and garaging such that the driveway/garaging would be on the southern side, as at present, and the dwelling setback to the northern boundary. Council’s representative was supportive of this alternative and the advantages it achieved, particularly for the levels associated with the driveway and garaging and side setbacks achieved to the northern boundary and adjoining dwelling. In my assessment, the issue of the garaging or building dominance to Devereux Road is satisfactorily addressed by the amended proposal Exhibit A10 and provides for a more compatible 1.5 metre side setback to the north, whilst retaining adequate space, dimensions and useability of rear private open space and with a more desirable north/north-eastern orientation of living rooms.
56 Thirdly, with respect to west facing windows of dwelling Nos. 1 and 2, and with respect to energy efficiency and the possibility of awnings being introduced to those windows to reduce summer heat intake and improve thermal efficiency, whilst maintaining winter sun. This element (or the use of verandahs or pergolas) is expressly sought by Council Wide Principle 137. The advocate for the appellants submitted a preference for a glazing solution (refer Exhibits A9 and A13) in lieu of awnings and including selection of proprietary Pilkington ComfortPlus 6.38mm glazing to the eight windows in question. The Council’s representative and submissions opposed that solution and sought a condition requiring implementation of awnings.
57 I assess that whilst a glazing solution could be effective, the Court has not heard or received evidence from any independent expert or source about this and the Development Plan clearly seeks awnings. The Australian Window Association, Window Energy Rating Scheme printout (part of Exhibit A13), also acknowledges for windows to the west, "... the best way to stop radiant solar heat gain is to shade the glass ...". Accordingly, a condition will be attached requiring awning treatments to the west facing windows of dwelling Nos. 1 and 2.
58 The further minor amendments incorporated in Exhibit A11, modified by Exhibit A10, can also be properly determined by the Court in this appeal process. In addition, no external owners/occupiers would be prejudiced by them and to the contrary, improvements and benefits would be achieved.
59 I conclude that with the amendments now presented and with the attachment of appropriate conditions of consent, and on the basis of the evidence, the view and my assessment, and having regard to the submissions of counsel (including reference to several authorities), the amended proposal sufficiently meets the Development Plan both as a whole and in terms of specific relevant guidelines, to warrant Provisional Development Plan Consent.

Decision

60 The appeal is allowed on the basis of the amended proposal and the decision of the Council reversed. Provisional Development Plan Consent is granted subject to the following conditions:

1 The development shall be undertaken in accordance with the amended plans and details comprising Exhibit A11, modified by Exhibit A10, the inclusion of Exhibit A2 and the schedule of colours and materials in Exhibit A4, except as may be varied by any conditions of consent hereafter.
2 The site plan, sheet 3 of 3 in Exhibit A11, shall be modified to incorporate the amendment contained in Exhibit A10 and with the finished floor level of dwelling No. 1 being substantially the same as shown in Exhibit A11; and to integrate (and modify, taking into account Exhibit A10), the detailed landscaping proposals shown on Exhibit A2, such that there is one final approved site plan. Such site plan is to be submitted to and approved by the Council prior to, or at the time of Provisional Building Rules Consent.
3 The final details and locations of a stormwater detention tank for each dwelling and for stormwater disposal generally, shall be submitted to and approved by the Council prior to, or at the time of Provisional Building Rules Consent, to allow for the collection, detention, retention and re-use of stormwater without causing nuisance or damage to the site or adjacent sites.
4 The driveways and other paved surfaces as generally indicated on the landscaping plan Exhibit A2, shall be constructed and paved with brick or block unit pavers to enable partial permeability by surface water.
5 The landscaping plan from Exhibit A2, integrated on the site plan required by Condition 2, specifying all areas to be landscaped and species to be used, shall be established in the first available planting season after completion of all of the dwellings, or if undertaken in stages, the respective dwelling, and shall be maintained thereafter in good health and condition with any dead or diseased plants replaced, all to the reasonable satisfaction of the Council.
6 The noise of any air-conditioning plant and equipment shall not exceed 45dBA when measured at the external boundary of the subject land, or alternatively an acoustic enclosure shall be installed surrounding such plant and equipment to achieve that criteria.
7 Awnings shall be provided to shade the eight west facing windows of dwelling Nos. 1 & 2, of a design to the reasonable satisfaction of the Council, and shown on drawings prepared for Provisional Building Rules Consent.
8 The side fencing (whether alone or combined with the retaining wall there under), on the northern boundary of dwelling No. 1 and between dwellings Nos. 1 and 2, shall be tapered in overall height commencing adjacent the relevant dwelling and tapering to a height of no more than 1.2 metres at the front (Devereux Road) property boundary.
9 The notation on sheet 3 of 3 (Exhibit A11) and the height of the retaining wall in the north-western corner of the site of dwelling No. 3 shall specify and provide for a retaining wall of no greater than 1.05 metres above the lower natural ground level on the adjoining site to the north.

61 There will be an order to that effect.

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1	This matter comprises an applicant appeal against the decision of the City of Burnside ("the Council") to refuse Development Application No. 180/0441/05, made under the Development Act 1993 ("the Act"), seeking Provisional Development Plan Consent for the erection of two detached dwellings and a pair of semi-detached dwellings (4 dwellings in total) at Hazelwood Park.
2	The reasons cited by the Council for its decision were as follows:

5	The subject land located on the north-eastern corner of Devereux Road and Cooper Place, comprises all of Allotments 9 and 10, FP15762, contained in Certificates of Title Volume 5250 Folio 929 and Volume 5173 Folio 69. Allotment 10 (north side) also enjoys rights over a narrow easement (1.52 metres in width) perpendicular to its northern boundary and for a distance of some 13.64 metres.
6	The land has a frontage to Devereux Road of 27.51 metres, a corner cut-off of 4.32 metres, a frontage to Cooper Place of 42.24 metres, a depth from Devereux Road varying from 45.29 to 45.31 metres and a depth from Cooper Place of 30.56 metres, producing a site area of approximately 1,381 square metres.
7	The subject land contains two single storey dwellings both facing Devereux Road, one a conventional gable fronted dwelling at No. 66 (northern side) and the other a conventional hipped roof dwelling at No. 68 (south side), which also has a frontage to Cooper Place. They are both very modest, of 1950’s vintage and in an average to poor external condition, particularly the outbuildings of No. 68 fronting Cooper Place. The dwelling at No. 66 includes a single driveway on the southern side and a solid wall built to the northern boundary (but set back some distance from Devereux Road), whilst the dwelling at No. 68 includes two double width crossovers to Cooper Place, a concrete block outbuilding built to the Cooper Place alignment, a high masonry/Colorbond fence on Cooper Place frontage and a low fence and hedge to Devereux Road.
8	The land has a fall from the south-eastern corner to the north-western corner of approximately 3.09 metres with the existing respective dwellings having finished floor levels of RL101.34 (No. 68) and RL100.65 (No. 66). Across the Cooper Place frontage the fall is 1.7 metres and across the Devereux Road frontage 1.34 metres. There is no mature or substantive vegetation of any note located on the land. Two very low "Prunus" street trees exist in the Devereux Road verge and there are three mature trees along the Cooper Place frontage. Photos of the land and locality are included in the body of Exhibit A7, Attachment 2, and in Exhibit R2, Attachment 2, as well as in the copy documents, Exhibit R1, pp10, 13, 18 and 19.

9	An amended proposal contained in Exhibits A1, A2, A3 and A4, with Exhibit A5 depicting colour perspectives of each dwelling, was presented for consideration by the Court. A range of relatively minor amendments (including increased front setbacks to most dwellings, floor area reductions for three dwellings, eaves added for two dwellings, window adjustments, landscaping detailing and tapered driveways for each dwelling) have been made post the Council decision and can be properly considered and determined by the Court.
10	The number and nature of the rooms and accommodation proposed and the materials, finishes and colours for each are thoroughly detailed in the Statement of Mr Vincent (Exhibit A7, pp5 and 6), they are not at issue between the parties, (though noting that for dwelling No. 1 it is marginally over the site coverage figure and for dwelling Nos. 3 and 4 they are marginally over the guideline for total floor area, discussed below), and I find them to be acceptable.
11	A comprehensive Development Data Table with detailed calculations was also prepared by Mr Vincent (Exhibit A7, pp6 and 7). It was acknowledged and accepted by both Ms Bell and Mr Watson, and was not challenged in terms of its accuracy before the Court. It is to be relied upon. It would result in some adjustments being made to the numerical content of the statements of Ms Bell and Mr Watson, and perhaps to some of the conclusions they initially made.
12	The single storey detached dwellings (Nos. 1 and 2) are 5.6 and 6.1 metres in height, setback 6 metres to the main face (5.4 metres to the portico and 7.0 metres to the northern double garage) from Devereux Road, and for the corner dwelling (No. 2), 3.2 metres to the main face and 3.8 metres to the double garage from Cooper Place. They have site areas in the order of 350 square metres and frontages in excess of 15 metres. Building site coverage is 41.5 and 40% and together with paved driveways is 50 and 45.2% respectively for dwelling Nos. 1 and 2. The side setback for dwelling No. 1 is zero for the double garage (a length of 6.3 metres and height of 3 metres), 1.5 metres for each to the internal new side boundaries – 3 metre total dwelling separation, and zero for the rear (viewed from Devereux Road) or side (viewed from Cooper Place) double garage of the southern, dwelling No. 2. Each has a north to north-east facing main private open space area and living rooms orientation. These dwellings have a finished ground floor level of 100.2 (dwelling No. 1) – about 0.7 metres above footpath level in the north-western corner and 101.2 (dwelling No. 2) – about 1.2 metres above footpath level in its north-western corner and about at grade with the footpath in the south-eastern corner to Cooper Place.
13	The two storey semi-detached dwellings (No. 3 on the west and No. 4 on the eastern side) are some 7.9 metres in height for the part two storey elements and are setback 7 metres to the main face (6.5 metres to the portico) from Cooper Place. They each have frontages of a little over 11 metres and site areas of some 340 square metres. Building site coverage is 39.5%, together with driveways it is 48.3% and with total floor area to site area of 51.6% (plot ratio 0.516). Side setbacks are 1.5 metres to the outer eastern and western sides, and 4.8 metres to the rear, northern boundary. However, the upper levels are well set-in from the sides by 5.2 metres from the east and west, and by some 10.4 metres from the rear. Each has a northerly (north-west for dwelling 3 and north-east for dwelling 4) main private open space area and living rooms orientation. These dwellings have single garages and an open paved area to the outer side capable of use as an open car parking space. They are to have a finished floor level at ground level of some 101.7, some 0.7 metres below footpath level in the south-eastern corner and about equal to the level in the south-western corner of the site for No. 4 and 3 respectively. Some internal retaining walls are required (between dwelling Nos. 1/2 and dwelling No. 3; and between dwelling No. 1 and dwelling No. 2) ranging from zero to 1.4 metres in the north-west corner of the site for dwelling No. 3 and the north-eastern corner of the site of dwelling No. 1 and to about 1 metre between dwelling Nos. 1 and 2. In each case, a 1.8 metre Colorbond fence is proposed atop as well as to the perimeter external boundaries to the north and east.
14	No argument was put to the Court that the dwellings are not intended, as shown on the plans, to be located on individual sites held exclusively with the respective dwelling. Hence, on that basis they are appropriately designated as being for two, detached dwellings and a pair of semi-detached dwellings with associated garaging, landscaping, filling and excavation, retaining walls and fencing. A further land division application is expected to follow if consent is forthcoming in this matter. That is usual for this form of development.

17	Land use within the locality includes predominately residential use (mostly detached dwellings, a few semi-detached dwellings, a residential flat building, 3 group dwellings and part of a nursing home), together with the bowling greens, tennis courts, open space and car park of Miller Reserve and local centre shops (diagonally opposite the subject land) all on Devereux Road to the south-west. Devereux Road is designated as a Primary Collector Road (MAP Bur/1 (Overlay 1)), and includes a bus route with bus stop in front of No. 66. Sturdee Street/Cooper Place perform as secondary collector roads (connecting to Portrush Road to the west and Glynburn Road to the east).
18	Dwelling stock comprises predominantly single storey dwellings (but with several two storey exceptions, such as at 1, 3 and 14 Cooper Place; 49, 54, 56, 74 and 80 Devereux Road), in a mix of styles from the inter-war 1930s to the post-war periods with several of more contemporary style including some built in the last 10 years or so. The condition of dwellings also appears to be mixed, with many in good condition but some in average condition and a few (including those on the subject land) in relatively poor condition.
19	Dwellings are generally sited on north-south oriented allotments to Cooper Place/Sturdee Street and on east-west allotments along Devereux Road. Street frontages are in the range of 15-20 metres, with dwelling setbacks from primary street frontages in the range of 6-13.5 metres (the dwelling on the subject land at No. 66 being the latter), and from secondary frontages – corner sites – of zero to 5.5 metres (the dwelling on the subject land at No. 68 being the former). Many, but not all, are in the moderate range. The local shop building diagonally opposite is sited on the front boundaries to both Devereux Road and Sturdee Street, and with an awning over the former. Side boundary setbacks generally range from zero to 5 metres. Established, in some cases well landscaped front gardens are common, with a mix of fencing heights, styles, materials (pickets, metal, low masonry walls, brush, Colorbond, hedges) and patterns. Devereux Road has moderate width, grassed verges with mostly mature street trees of mixed species, whilst Cooper Place and Sturdee Street have narrower verges but with more consistent species of mature street trees. Both streets have relatively wide road reserve widths in the order of 20 metres. Vegetation on view in front gardens and in road verges adds to the amenity levels, as do the recreation and open space facilities and features to the south-west on Devereux Road. Negative features are the appearance and condition of some buildings, overhead electricity infrastructure and traffic movement impacts.
20	The streetscape character as described, with varied built form, styles, siting and fencing, but with more consistent road and verge widths and vegetation, are not found to be distinctive, but rather relatively typical of many, if not most in Linden Park (Policy Area 24) and the suburb of Hazelwood Park (adjoining Policy Area 25), and not of a particularly distinguishing appearance. They are considered to be moderately attractive. The locality also does not in my assessment, exhibit a cohesive character or particular sensitivity (Residential Zone Objective 5), although a corner site is always somewhat more visually obtrusive.
21	The boundary between Policy Areas 24 and 25 is not evident on the ground within the locality in terms of built-form, amenity or character, notwithstanding some policy distinctions. There is a clear intent with Policy Area 24 designated along both sides of Devereux Road, to allow an increase in residential density compared to much of the current development or as allowed for in Policy Area 25.

25	Section 33(1)(a) of the Act requires the relevant authority (the Council) and on appeal, this Court, to assess a development application against the provisions of the relevant 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 that Plan (listed above) that provide the firm basis for decision making.
26	In terms of s35 and the provisions of the relevant Development Plan, particularly the Residential Zone (RZ) and Residential Policy Area 24 (RPA 24), the amended proposal is neither complying nor a non-complying development. It is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pro’s and con’s and whether the proposal is conducive to the distilled overall intent, purpose and desired character and amenity of the Zone and Policy Area and in the specific locality and streetscape contexts. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory, legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. It is also not appropriate to compare the proposal with, or test it against, other alternatives or a so-called ideal design solutions or planning outcome. Ultimately, a planning judgment is to be made on a fact and degree basis and whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant factors, warrants consent.
27	Having regard to the views of the witnesses and my assessment, it is reasonably evident that the following are generally acceptable having regard to the Development Plan guidelines:

31	Firstly, with respect to the scale of the proposed buildings, clearly the single storey height, width and length of the two dwellings (Nos. 1 and 2) fronting Devereux Road, with similar scaled development adjoining and opposite, comprise low scale and they are considered to be compatible and in harmony to that streetscape and part of the locality. The development to Cooper Place (dwelling Nos. 3 and 4), whilst part two storey, have modest heights of 7.9 metres each above natural ground surface level (less than the 9 metre guide); the eastern dwelling at No. 4 is set below the adjoining footpath level and dwelling No. 3 is comparable with the footpath level and both are on the low side of the road; the two storey element (excluding balcony) is setback from the front boundary over 10.5 metres, a similar distance to the adjoining dwelling at 1 Cooper Place; they would be of comparable or lesser height than the next two adjoining dwellings at 1 and 3 Cooper Place; they are set back to the sides at upper level; with all of the above factors diminishing their apparent scale. The width of the combined dwellings and their lengths are comparable to those of other large dwellings along Cooper Place. The fact that adjoining RPA 25 seeks low scale, single storey development, is offset by the reality of the characteristics of the next two dwellings at 1 and 3 Cooper Place in that policy area. Despite the view of Ms Bell, I assess the proposal overall to be of low scale, and in that regard to be sufficiently compatible with adjoining and adjacent development.
32	Secondly, turning to the aspect of bulk. As mentioned, Ms Bell and Mr Watson acknowledged the accuracy of the calculations of Mr Vincent with respect to site coverage, coverage of all impervious surfaces and total floor area to site area (plot ratio) and in some cases the inaccuracy of their figures on which their written opinions relied. The former two factors have development guideline criteria of 40 and 50%, largely met by all dwellings, though dwellings 1 and 2 are some 5 square metres above the guide of 40%, a relatively minor and inconsequential amount with respect to perception of bulk. These guidelines also provide an indication and a contribution to scale and support the assessment that the development overall is sufficiently low scale. Plot ratio (or total floor area to site area) is the key town planning criteria governing actual bulk of a building, although perceptions of bulk might be derived from a combination of other factors including setbacks and siting, roof form and shapes, floor levels relative to viewing positions and the degree of screening of a building by vegetation (including street trees). For this development proposed dwelling Nos. 1 and 2 being single storey and 41.5 and 40% total floor area (or 0.415 and 0.4 plot ratio) are clearly non-bulky buildings, highly compatible with and in harmony with their streetscape and the locality. Dwelling Nos. 3 and 4 with a total floor area percentage of 51.6% (0.516 plot ratio), marginally exceed the guideline in CW Principle 118(c) by 1.6% or about 5 square metres each. If removed from the depth of each dwelling (at ground or upper level), it would not perceptibly change the apparent bulk viewed from the street at higher level, or from adjoining dwellings. However, I agree to an extent with Ms Bell that the upper levels of each and their joined roof form with a single east-west linking ridge of about 12 metres width, provides an element of bulk not typical in the streetscape or locality, although the two storey steep pitched roof dwellings at 1 and 3 Cooper Place adjoining to the east (and in RPA 25) are not dissimilar in this regard. Whilst the roof form could be amended to separate it into two sections and with hipped roof angles between, I assess that the degree of reduction of bulk is not warranted in the locality circumstances. Hence, whilst there is a degree of variance regarding bulk of dwelling Nos. 3 and 4, I assess that they are sufficiently compatible and in harmony with dwellings adjoining and generally in the Cooper Place streetscape and in the locality.
33	Thirdly, turning to a central consideration in this matter of siting and setbacks to boundaries of the proposed dwellings. A moderate setback to streets is sought by RPA 24, Objective 1, clause (c), reinforced by CW Principle 114(a), and the Table in Principle 114 sets a minimum guideline of 6 metres, except that on corner sites, applicable to the subject land, an average of the front setbacks of dwellings on adjoining sites is sought and from the secondary road (in this case Cooper Place for dwelling No. 2), a setback of 3 metres is envisaged. CW Principle 115 provides qualitative and quantitative guidelines for side and rear boundary setbacks at ground level (specified for floor levels or less than 1.5 metres above ground level) to side boundaries of 1.5 metres or zero except for a wall not more than 3 metres in height having a length of not more than 8 metres which may abut a side boundary and to rear boundaries of 4 metres, and at the upper level of 4 metres to the side and 8 metres to the rear boundary. Dwelling No.1 meets some of these guides, except for the small portico entrance to Devereux Road (at 5.4 metres) and rear bay windows to the new internal rear boundary of 3.6 metres. These are minor variances not materially affecting vistas, visual amenity or streetscape character. The issue of obtrusiveness of the garage wall and its north-western corner from Devereux Road is assessed later.
34	Dwelling No. 2 on the corner also has a small portico entrance to Devereux Road (at 5.4 metre setback) and a zero rear internal boundary (as viewed from Devereux Road) or side internal boundary (as viewed from Cooper Place) setback of the double garage – meeting CWP 115(d)(iv). On a corner site and as viewed from the secondary, Cooper Place frontage, and in the light of the ugly buildings built to the street boundary being replaced, this is considered to be acceptable and the siting generally, for both dwelling Nos. 1 and 2, is sufficiently compatible and in harmony with the wide range and mix of setbacks in the locality and along Devereux Road, including on the north-western corner opposite at 53 Devereux Road. The front setbacks are perhaps marginally at variance with the phrase "moderate setbacks".
35	Dwelling Nos. 3 and 4 meet all of the numerical setback guidelines in Principles 114 and 115 and having regard to the appropriate tapering of setbacks at ground floor level commencing from the setback of the proposed corner dwelling No. 2 garaging of 3.8 metres, to the front setbacks of the dwelling existing at 1 (and 3) Cooper Place of some 9 metres, and particularly a comparison of upper level setbacks from the street, and also considering the side setback gap of 2.8 metres on each side at the ground level, I assess the front setback to be sufficiently "moderate" and all setbacks to provide sufficient compatibility and harmony with the streetscape of Cooper Place, vistas and visual amenity of the locality. I do not agree with the level or weight of concern about the siting/setbacks of the dwellings as expressed by Mr Watson in particular and to a lesser extent Ms Bell. In that I agree with Mr Vincent.
36	Fourthly, the siting proposals together with driveway tapering and garaging elements for the dwellings and the absence of front walls or fences, provides the components to achieve (and in due course maintain) open front gardens of substance that will also assist in maximising local compatibility and harmony in the streetscapes and locality. The tapering of driveways creates a driveway width at the property boundary of some 3.5, 4.0, 3.5 and 3.5 metres respectively for dwellings numbered 1 through to 4. Whilst in the case of dwelling Nos. 1 and 2, the depth of "garden" to the front dwelling alignment is reduced, considering the under-developed, un-maintained and relatively unattractive front gardens presented to the Devereux Road currently on the subject land, and the ugly Colorbond fence and front boundary building to Cooper Place, and in the light of the specific landscaping proposals and details in Exhibit A2, I assess that there will be a significant enhancement to the visual amenity of the streetscape and the locality upon full implementation of the development proposal and the landscaping.
37	Fifthly, the extent of filling and with limited excavation, and in a few locations the proposed height of retaining walls and internal side/rear fencing was assessed as being at variance with Plan guidelines and of concern to Ms Bell and Mr Watson (but not Mr Vincent). For the northern dwelling No. 1 to Devereux Road, at the lowest level of all proposed dwellings, there would be little if any fill, and with perhaps minor excavation to 300mm to its rear area. This would mean, as now, a retaining wall to the adjoining property of 64 Devereux Road of perhaps up to 0.7 metres tapering to its existing height at the front boundary and with a 1.8 metre Colorbond fence to be located on the boundary behind the garage on the rear northern side.
38	For the corner dwelling No. 2, at an intermediate proposed floor level, there would be filling in the order of 400-600mm (Mr Vincent) and virtually no excavation. This would mean a retaining wall along the northern side of that site, tapering from about 1 metre in a central section to minimal height at the front boundary and with a 1.8 metre Colorbond fence intended on top. From Devereux Road and given the landscaping proposals in Exhibit A2, provided the fence tapers to 1.2 metres at the front boundary, this retaining wall would not be highly evident.
39	For the western most dwelling of the pair (No. 3) fronting Devereux Road, there may be minor 300mm excavation in the front south-eastern corner and the dwelling would be consistent with the level in the south-western corner of that site and with filling to achieve an FFL 101.7 and similar external rear yard level, of between 400 to 1500mm in the north-western corner. This would require a retaining wall along the internal rear boundary to dwelling No. 1 and the rear/side boundary to dwelling No. 2 of between 500mm to 1500mm (and with a 1.8 metre fence atop). Along the combined rear boundary (with the rear of dwelling No. 4), to the side/rear boundary of the neighbouring 64 Devereux Road, between 1500mm in the north-west corner to 650mm in the north-eastern corner and with the 1.8 metre fence atop is proposed.
40	For the eastern dwelling of the pair (No. 4), minimal if any excavation on the front eastern side is required and with filling ranging from zero in the south-eastern corner to approximately 1000mm to the rear and north-western corners, producing a retaining wall of no more than 550mm to the north-eastern part of the eastern boundary and with 1.8 metre fencing atop.
41	The only relatively minor area of concern to me in the light of the Plan guidelines, is the level set for dwelling No. 3 and its north-western corner. This could, and I assess should (so as to minimise the extent of filling and height of combined retaining wall/fencing), be reduced by some 300-500mm to achieve a retaining wall in the north-western corner of no more than 1 metre. There are several alternatives to achieve this including: reducing the whole of the ground finished floor level of dwelling No. 3 and/or reducing the rear only ground finished floor level with a few internal steps and/or reducing the rear external paving and lawn areas in a stepped fashion. With such a relatively minor amendment, the visual amenity levels for both future internal site occupants of dwelling Nos. 1 and 2 and occupants of the dwelling to the north at 64 Devereux Road would be sufficiently maintained. On sloping land in the locality, such walls and fences are relatively common as a design solution.
42	Finally, the somewhat elevated appearance of the north-western corner and side wall of the double garage of dwelling No. 1 to Devereux Road and consequences for streetscape character and visual amenity as viewed by south-bound motorists, cyclists and pedestrians, requires further careful consideration. As proposed it would be more prominent than the existing buildings on the site and somewhat more prominent than a similar forward positioned, side boundary garage wall opposite at 53 Devereux Road – on the low side and as viewed from the frontage of 51 Devereux Road, which has lattice and some vegetation screening to soften it. I acknowledge that the proposed wall may only be some 1.2 metres higher than a typical 1.8 metre boundary fence, and located on a northern side, not giving rise to overlooking or overshadowing issues to the south. However, I consider that some further amendment is required to minimise its visual and streetscape impact to an acceptable level. Alterations may include setting the double garage back a further 1 metre from Devereux Road whilst maintaining an 8.5 metre length in the rear private open space area, and the inclusion of lattice and creepers on the northern wall (with approval from the adjoining owner); or reduction in the garage width by 0.6 – 0.9 metres making it a large single car garage and the planting of a row of slender trees/shrubs along the intervening boundary such as "Pencil" pines, Pittosporum "Screen-master" or other.
43	On a consideration of the evidence which comprised mixed opinions, the Development Plan guidelines applied in the local context including regard to RPA 25 adjoining, my assessment, and the relative ease and benefits of achieving further potential amendments to the FFL ground floor level of dwelling No. 3 and rear yard levels and as a result reduced rear retaining walls height; and to the double garage for dwelling No. 1 to reduce its visual impact, I consider that the development proposal if amended, could then sufficiently achieve local compatibility and harmony with the streetscape character, visual amenity of the locality and the overall intent of the RPA 24.

44	Firstly with regard to potential noise nuisance from air-conditioning plant (having regard to CW Objective 8 and Principle 122), to adjoining owners at 64 Devereux Road and/or 1 Cooper Place (or indeed the occupants of one or more of the other dwellings on the site), a condition of consent is required to address location and the minimisation of such impacts to a reasonable level.
45	Secondly, in terms of stormwater management (collection, treatment, re-use, discharge), I note the indicative stormwater proposals on sheet 3 of Exhibit A1, including 2,000-litre rainwater tanks to each dwelling and soakage pits to at least dwelling Nos. 3 and 4 and with other pipes, drains and sumps shown. The Court received no technical evidence regarding these proposals. Indicatively, they appear to meet the intent of CW Principle 74, 151 and 152 to the extent appropriate at provisional development plan consent stage, and a condition of consent to ensure the detailed scheme is to the Council’s satisfaction at the detailed design stage, would be appropriate.
46	Thirdly, there is the issue of energy efficiency or access to sunlight (CW Objectives 8 and 55; and Principles 134-137). Generally, the design of the dwellings (including the energy conservation measures in Exhibit A3), taking account of the fact that two dwellings are orientated north-south and two orientated east-west (given the frontages, dimensions, area and slope of the subject land), include reasonable design measures as outlined by Mr Vincent in Exhibit A7 at p18 and orally, though there was some criticism from Ms Bell only, about western facing windows. However, I discern from the plans for dwelling Nos. 3 (and 4) at the upper level to bedroom 3 and the activity room, an outline of an awning to those windows; I understand that the west facing windows to the meals area of dwelling No. 3 and pergola (marked as a loggia), is intended to provide some shading; and with regard to the windows to bedroom 1 and study of dwelling No. 1, and bedroom 2 and study of dwelling No. 2, those windows are of moderately narrow more vertical proportion and four medium sized deciduous tree growing to 10 metres are proposed (Exhibit A2) to provide some shading in due course. Verandahs, pergolas or eaves to those elevations would, in my assessment, be architecturally and stylistically inappropriate. However, it would be reasonable and appropriate to require, either by condition or notes on the plans, awnings to the eight windows in question.

48	Subject to the possibility of minor amendments mooted above, the proposal could achieve acceptable local compatibility and harmony with the locality and the applicable streetscapes.
49	Environmental design considerations including noise nuisance, stormwater management and energy efficiency and access to sunlight, can all be appropriately dealt with by conditions of consent in addition to the design features incorporated in the plans and other exhibits.
50	Overall, I found the evidence of Mr Vincent to be the more comprehensive, thorough and balanced and to be preferred, though certain aspects of the evidence and reservations held by Ms Bell, particularly about the extent of filling and levels for dwelling No. 3 and its rear yard and retaining walls, and the appearance of the north-western and northern side of the garage of dwelling No. 1, were supported.
51	Whilst the assessment and evidence (including that of Mr Vincent), revealed some variance to Development Plan guidelines such as to CW Principle 114 (front setbacks to dwelling Nos. 1 and 2); Principle 115(c)(d) (rear boundary setback); Principle 118(a) - site coverage being 1.5% or 5.3 square metres over the guideline, and 118(c) – total floor areas for dwelling Nos. 3 and 4 being 1.6% or 5 square metres over the guideline; and Principle 120(g) – private open space shape; the departures are not fatal to the application either individually or overall and in combination with each other. They are assessed not to be so significant to warrant rejection of the proposal. I do not assess the proposal to be an over development and subject to minor improvements/amendments as mooted above, it can sufficiently meet the guidelines in and general intent of RPA 24 including Objective 1 and Principle 1 as well as sufficiently meeting RZ Objectives 1, 2, 3, 5 and 8 and Principles 2, 3, 4, 5 and 6, subject to the attachment of conditions of consent. Whilst exceedingly subjective, I also assess the proposal to be of sufficient high quality and good design standard.

52	I issued a Memorandum to the parties dated 9 December 2005 and afforded the appellants the opportunity to make further minor amendments in response to the above assessment and aspects that remain in doubt, and present those to the respondent Council and the Court for further consideration. That opportunity was taken up. The parties also conferred with regard to conditions of any Provisional Development Plan Consent to be granted, including a consideration of certain topics for conditions as referred to above. In terms of procedural fairness, this course also enabled the respondent Council to make further submissions to the Court if it wished. The Council made such submissions, refer below, and put forward five conditions it sought to attach to any consent granted. The appellants were agreeable to the substance of the five conditions presented.
53	The matter resumed on 11 January 2006 where such amendments, submissions and recommended conditions were presented to the Court.
54	Turning to the three main outstanding issues, and firstly with respect to the height of the retaining wall in the north-western corner of the site for dwelling No. 3 (of some 1.5 metres with fence above), to be reduced to minimise visual impact to an appropriate level and with one or more options available. The appellants chose to reduce external levels to the rear of dwelling Nos. 3 and 4, necessitating the placement of rear steps to each and reducing the levels by some 450mm such that in the north-western corner the retaining wall would be in the order of 1.05 metres (refer Exhibit A11). In my assessment, that amendment will be a satisfactory solution and sufficiently minimise visual impact of a combined retaining wall and fence to the adjoining northern neighbours. The Council representatives were agreeable to that improvement.
55	Secondly, with respect to the appearance of the double garaging for dwelling No. 1 and particularly its northern side wall to be reviewed to minimise visual impact on the streetscape and with one or more options available. The advocate for the appellants submitted an amendment (Exhibit A10) as the appellants’ preference, which involved "flipping" the layout of dwelling No. 1 and garaging such that the driveway/garaging would be on the southern side, as at present, and the dwelling setback to the northern boundary. Council’s representative was supportive of this alternative and the advantages it achieved, particularly for the levels associated with the driveway and garaging and side setbacks achieved to the northern boundary and adjoining dwelling. In my assessment, the issue of the garaging or building dominance to Devereux Road is satisfactorily addressed by the amended proposal Exhibit A10 and provides for a more compatible 1.5 metre side setback to the north, whilst retaining adequate space, dimensions and useability of rear private open space and with a more desirable north/north-eastern orientation of living rooms.
56	Thirdly, with respect to west facing windows of dwelling Nos. 1 and 2, and with respect to energy efficiency and the possibility of awnings being introduced to those windows to reduce summer heat intake and improve thermal efficiency, whilst maintaining winter sun. This element (or the use of verandahs or pergolas) is expressly sought by Council Wide Principle 137. The advocate for the appellants submitted a preference for a glazing solution (refer Exhibits A9 and A13) in lieu of awnings and including selection of proprietary Pilkington ComfortPlus 6.38mm glazing to the eight windows in question. The Council’s representative and submissions opposed that solution and sought a condition requiring implementation of awnings.
57	I assess that whilst a glazing solution could be effective, the Court has not heard or received evidence from any independent expert or source about this and the Development Plan clearly seeks awnings. The Australian Window Association, Window Energy Rating Scheme printout (part of Exhibit A13), also acknowledges for windows to the west, "... the best way to stop radiant solar heat gain is to shade the glass ...". Accordingly, a condition will be attached requiring awning treatments to the west facing windows of dwelling Nos. 1 and 2.
58	The further minor amendments incorporated in Exhibit A11, modified by Exhibit A10, can also be properly determined by the Court in this appeal process. In addition, no external owners/occupiers would be prejudiced by them and to the contrary, improvements and benefits would be achieved.
59	I conclude that with the amendments now presented and with the attachment of appropriate conditions of consent, and on the basis of the evidence, the view and my assessment, and having regard to the submissions of counsel (including reference to several authorities), the amended proposal sufficiently meets the Development Plan both as a whole and in terms of specific relevant guidelines, to warrant Provisional Development Plan Consent.