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DALETTA PTY LTD v DISTRICT COUNCIL OF THE COPPER COAST [2007] SAERDC 2 (1 February 2007)

Last Updated: 8 February 2007

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.

DALETTA PTY LTD v DISTRICT COUNCIL OF THE COPPER COAST

[2007] SAERDC 2

Judgment of Commissioner Green

1 February 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - applicant appeal - refusal of the Council - two storey detached dwelling and balconies with boat store internalised, as constructed - Residential Zone - building siting adjacent Simms Cove cliff top - replacement of prior dwelling increasing setbacks to coastal boundary - infill development in Residential Zone between other dwellings - unusual locality context particularly with alignment of cliff top, relativity to other dwellings and visibility from public land - comparison with complying development conditions and opportunites - erosion protection works undertaken on adjacent Crown land on cliff face outside subject land and maintenance and managements issues associated therewith - key issues related to visual amenity impacts of the rear boundary setback of the dwelling and balcony and overlooking-privacy loss impacts to the spaces and rooms of an adjoining dwelling - amenity impacts and Development Plan criteria dictate an increased building setback and reduced obtrusiveness of the building elements, achieved by removal of a projecting balcony (as amended) - coastal protection works considered both for the short and long term - protective works likely to be adequate but subject to side protection and ongoing maintenance and management issues - implications for other development in the locality also considered - proposal as amended sufficiently in accord with the Development Plan - conditional Provisional Development Plan Consent granted - appeal allowed.
Development Act 1993; Development Regulations 1993; Crown Lands Act 1929, referred to.
Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321; Rivergum Homes Pty Ltd v District Council of the Copper Coast [2005] SAERDC 10; Adelaide Hills Council v Gibson [2006] SASC 181; City of Charles Sturt v Hatch [1999] EDLR 485, considered.

DALETTA PTY LTD v DISTRICT COUNCIL OF THE COPPER COAST
[2007] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an applicant appeal against the decision of the District Council of the Copper Coast (the Council), to refuse Development Application No. 340/085/06 made under the Development Act 1993, seeking Provisional Development Plan Consent for a detached dwelling, balconies and garage/boat store building at Moonta Bay.
2 The Council refused the application for the following reasons:

The development fails to comply with the following provisions of the Development Plan.

Council Wide
Residential development
Objective 2
Principles 9, 10, 12, 15, 16, 17 and 19.
Appearance of Land and Development
Objectives 2 and 4
Principles 1.
Coastal Development
Objectives 1, 3, 7, 10, 11 and 12
Principles 4, 11, 31 and 32

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

Registration date of application:	February 2006 (sometime after the 2^nd and before the 21^st)
Subject land address:	7A Trelawney Street, Moonta Bay (Lot 583 FP 198764, CT Vol 5650, Fol. 796)
Existing use:	Detached dwelling (recently constructed following Exhibit A2/A3) with new swimming pool (Exhibit A6) and old outbuilding (refer survey plan from Exhibit R2/R3 attached, of portion of the land)
Proposal:	Two storey detached dwelling and balconies with garage/boat store internalised, as constructed (refer Exhibit A1 with sheet 1 of 19 attached)
Relevant authority:	District Council of the Copper Coast
Relevant/appropriate Development Plan:	Copper Coast (DC) consolidated 22 September 2005
Relevant Zone:	Residential (RZ hereafter) MAP CoCo/20
Date of decision:	19 April 2006
Appeal lodged:	28 April 2006
Conference concluded:	13 June 2006

4 The Court viewed the subject land and locality on Tuesday, 3 October 2006 in the presence of the parties. Witnesses providing evidence to assist the Court and to which regard is given comprised, in the appellant’s case, Mr D Dunning, Director of the appellant company, concerning background information and his involvement; Ms J Nolan an experienced qualified consulting town planner (refer Exhibit A7); and Dr P Mitchell an experienced qualified consulting Geotechnical Engineer (refer Exhibit A8); and in the respondent’s case, Ms E Seifried, a joint owner of the adjoining property to the south at 7 Trelawney Street as to her opinions of the proposal and experiences in the area; Mr D Hutchison an experienced qualified consulting town planner (refer Exhibit R4 and Exhibit R1, pp.33-55); and Mr T Magryn an experienced qualified consulting Civil (structural and coastal) Engineer (refer Exhibit R2).

The Subject Land

5 From the Certificate of Title (though at slight variance to a surveyors plan Exhibit R1 p.26), the site has a frontage of 15.29 metres to Trelawney Street, northern and southern boundary depths of 64.07 and 58.90 metres respectively; and a western angled rear boundary on the coastal side of approximately 16.26 metres, providing for a site area in the order of 940 square metres.
6 The western boundary of the land is adjacent the top of the coastal cliff that is setback approximately 1.5-4.0 metres angled from south to north, which form Simms Cove and its beach, some 1.2 km south of Moonta Bay proper – Bay Road and the jetty.
7 The land accommodates an old, large garage/shed on its eastern (road) and part of the southern boundary and toward the western parts a large two storey detached dwelling (with balconies and internal garage/boat store) and with both a parallel and forward projecting balcony on the western or sea side and a narrower parallel balcony on the eastern side, all built in late 2005 purportedly on the basis of the plans and approval in Exhibits A2 and A3. A new replacement swimming pool and fence enclosure also exist, and said to be approved by Exhibit A6. It sits under the forward projecting balcony.
8 The land is relatively flat now, sitting perhaps 900mm lower than its neighbour to the south (No. 7) and a similar height higher compared to its neighbour to the north (No. 9). An older retaining wall and fence exist along the southern boundary and retaining walls, steps and landscaping/rock gardens exist on the western side straddling the boundary and onto Crown Land (refer Exhibit R4, attachment 1).
9 The land as presently developed is shown in photos (oblique and aerial) within Exhibit R2 and the attachment to Exhibit A4, and as it previously was with a prior single storey detached dwelling, partially straddling the western boundary (Exhibit A4), and in photos in Exhibits A9 and R4 attachment 2.
10 Considerable retaining and revegetation work has occurred particularly in recent years on the cliff face in front of the subject land, like a number of other occurrences and with gated steps projecting from the top of the cliff to the beach (vide photos in Exhibits A13 and R2).

The Proposal

11 The development proposal is contained in Exhibit A1 and it seeks to regularise and have approved what has been built on site and particularly its siting in respect to property boundaries. Key differences or amendments compared to Exhibit A3 – "the original" approved plans (and assuming the Council’s position regarding siting with the face of the dwelling at its north-western point being set back 17.3 metres from the north-western corner boundary and approximately 16 metres to the nearest point of the western boundary) are:
• the dwelling face at the south-western corner sited some 5.8 metres (scaled) from the south-western corner of the land, the nearest point of the western boundary and with the roofed balcony at its south-western corner some 3.5 metres to the south-western corner of the land (and of no real significance in this assessment, angled post supports amended to vertical ones);
• the dwelling face at the north-western corner sited some 10.0 metres (scaled) from the nearest point on the western boundary and the projecting balcony (6.5 metres in height above ground level), angled to the western boundary and set back some 1.2 to 2.6 metres at its corners;
• an increase in the projecting, angled balcony size (proposed at 7.75 metres compared to 6.7 metres as approved) from the dwelling face to its outer western edge and of somewhat increased width and area;
• external windows/door alterations including the laundry door changed to a store window; three vertical windows reduced to two facing south from the family room; reduced window pane width to the south facing bedroom 1 and north facing bedroom 2 and kitchen windows; and
• internal changes comprising a swap of the store and laundry locations and a large bedroom 3 converted to two bedrooms numbered 3 and 4; and a large games room converted to two smaller games and study rooms (both capable of use as bedrooms).
12 Other than some consequence for private open space guidelines and provision (number of rooms that are bedrooms or capable of being used as bedrooms increased from 4 to 6), the alterations outlined in the last two dot points are not of any significant town planning substance.
13 Certain on-going maintenance and management work is implied for the coastal cliff and Council’s original approval, Exhibit A2, included a condition No. 14 having regard to the Coast Protection Board advice (Exhibit A5) and engineering reports and advice (refer Exhibits A10, A11 and attachment 3 of R4).

The Locality

14 Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal impacts upon, to a notable degree, the locality boundary in this matter is to be based primarily on visual impact and character perception factors and with regard to physical coastal processes. I have had regard to that put forward by Mr Hutchison and generally described by Ms Nolan. I define the locality to comprise that shown on the locality plan attached to Exhibit R4 prepared by Mr Hutchison together with three dwellings to the south on the opposite corners of Trelawney Street with Simms Cove Road and the frontage of land and dwellings on the eastern side of Trelawney Street up to Francis Place. It includes more densely spaced development along Francis and Queens Place and the unmade Plymonth Street south of 7 Trelawney Street.
15 Other than the coast (in the Urban Coastal Zone (UCZ)) abutting the subject land and other cliff top fronted land, the locality zoning is entirely Residential Zone (RZ) with a Tourist Accommodation (Harry Point) Zone, new subdivision and some recent large two storey dwellings forming a backdrop south of Simms Cove Road (refer backdrop in photo 2 of Exhibit A13).
16 Land use is mostly residential, excepting a few vacant allotments, public roads, and the public car park and recreation area on the small peninsula at the end of Simms Cove Road and natural coastal areas used at times for passive and active recreation purposes. The beach was sandy at the time of viewing and of moderate width and the coastal cliffs in the order of 9-10 metres high above the beach and AHD in its central parts, reducing to perhaps 4-5 metres to the southern and northern perimeters. Along the cliff face, some areas are laid back, some vertical and some with overhangs. There is evidence that over many years structures (such as steps/gates, a small boat slip way and retaining works) have been erected on the face. Collapse and coastal as well as terrestrial erosion is evident in parts. It is described as being made of collapsible sands that are weak when wet. A varied limestone nodule layer lies about two thirds up in parts, seemingly slowing erosion rates. The analysis of Mr Magryn, whilst problematic and not very accurate, nevertheless indicates the general extent of erosion over the last 56 years (Exhibit R2, aerial and other photographs).
17 Dwelling types are mostly detached dwellings, though there are a few semi-detached dwellings. Allotment sizes and shapes are varied and built form includes a mix of single and two storey buildings, many, where available, capitalising on coastal views. There is also a mix of age and condition with a few remnant old dwelling/cottages, a number of medium aged buildings of average to poor condition and a number of new dwellings and buildings of contemporary architectural style in reasonably good condition.
18 Building setbacks to side and road boundaries are quite varied from 0 to perhaps 10 metres or more. They are also varied to the beach (a rear boundary for most allotments) ranging from perhaps 6-20 metres. Ms Nolan has described in detail the curved coast and the staggered setbacks of dwellings north and south of the subject land (refer Exhibit A7 at paras 4.2 and 4.3). The dwelling to the immediate north (No. 9) sits a little forward of the dwelling face proposed (as existing). The dwelling to the south (No. 7), a very old cottage, sits well back from both its western boundary and the alignment of the proposed (existing) dwelling with a relatively large open, lawned front yard area. It would have also done so relative to the dwelling siting as assumed approved by the Council (Exhibit A3).
19 In the words of Ms Nolan, with which I concur:

The locality has a seaside character brought about by both the style, form and siting of dwellings, the proximity of the Bay and prominence of boats and boat storage infrastructure. The locality exhibits a clear "holiday" ambience although the quality and extent of new development also achieves an impression of permanent occupation for many of the properties in the area.

20 Residential and public realm amenity levels are relatively high, particularly in near proximity to the coast and where coastal views are available, but moderated and reduced moving eastward and with numerous buildings (dwellings and outbuildings), fences, and yard/garden areas being unattractive and of poor quality.

Relevant Development Plan Provisions

21 I have noted the provisions referred to by counsel and the witnesses and I find the following to be the provisions in the relevant-appropriate Development Plan of most assistance to an assessment of the proposal, including the key issues in dispute:

RESIDENTIAL ZONE (RZ)
Objectives: 1, 3 and 5; and
Principles of Development Control: 1, 5 and 6.

URBAN COASTAL ZONE (UCZ)
Objectives: 1 and 2.
Principles of Development Control: 2, 4 and 6.

COUNCIL WIDE (CW hereafter)
DEVELOPMENT GENERALLY
Objectives: 1 and 2; and
Principles of Development Control: 1, 2 and 3(c).

APPEARANCE OF LAND AND BUILDINGS
Objectives: 2 and 4; and
Principles of Development Control: 1 and 2.

RESIDENTIAL DEVELOPMENT
Objectives: 2 and 5 (and paras 1 and 3 thereafter); and
Principles of Development Control: 3(b), 6, 7(d)(f), 9-12, 14-17, 19-21 and 23(c).

COASTAL DEVELOPMENT
Objectives: 1-8, and 10-15; and
Principles of Development Control: 1, 3, 4, 11, 15, 30, 31, 33 and 42.

Processing

22 The Council processed the proposal as a Category 1 application and as such no representations were received. There was no requirement for government agency referrals pursuant to Schedule 8 of the Development Regulations 1993, although the Council referred the prior application leading to the approval in Exhibit A2, to the Coast Protection Board for advice (refer Exhibit A5). That advice remains of relevance.

Background and Approach to Assessment

23 Section 33(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-appropriate Development Plan and s 35(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 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.
24 In terms of s 35 and the provisions of the relevant Development Plan, particularly RZ, the amended proposal is neither a complying nor a non-complying development having regard to the relevant principles. It is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pro’s and con’s and considering whether the proposal is conducive to the distilled overall intent, purpose and desired character and amenity of the relevant Zone and in the specific locality context. 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 with a better or a so-called ideal design solution or planning outcome. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent. Having said that, minor amendments can still be sought and included in a decision.
25 It is also of some relevance to consider and compare what development is either complying in the RZ and complying or not classed as "development" under the Act and regulations, forming part of a reasonable expectation for development on the subject land and in the locality.
26 There are a large number and combination of circumstances and considerations in the assessment of this matter, more so than usual. In addition to the task of identifying, applying and weighing up the relevant Development Plan guidelines as referred to above, there are the following aspects that also require careful consideration and weighting:

1. The proposal before the Court (Exhibit A1) is lodged on a without prejudice basis given approval to a previous application (Exhibits A2 and A3) and a dispute between the parties leading to a Section 84 Notice and pending appeal against it by the appellant, concerning siting of the dwelling and balcony in particular. In this matter, the Court is asked to assume that the Council’s position with regard to setback of the building from the rear (western) coastal boundary is correct.

2. The development for which Provisional Development Plan Consent is sought and to be adjudged in these proceedings exists (given Exhibits A2, A3 and A6 and presumably the understanding, interpretation and then construction works by the appellant). However, in the light of the approach in Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321, at p.324, and Rivergum Homes Pty Ltd v District Council of the Copper Coast [2005] SAERDC 10 at para 27, whilst its near complete existence is a great help in assessing visual amenity and other impacts, this position and its existence is neither to the advantage nor the disadvantage of the appellant.

3. The proposed (existing) dwelling replaces a prior detached dwelling (refer Exhibit A9 and other photos elsewhere), that straddled the western (coastal) boundary of the land (vide Exhibit A4) and increased setbacks to that boundary are now proposed, thus improving and minimising certain impacts and risks.

4. The proposal represents an infill development in a RZ on an existing allotment with Crown Land between the western boundary of the subject land and the cliff top, but with clear coastal and terrestrial erosion risks and issues for the long term not just for this land, but for many allotments and dwellings along the cliff tops at Moonta Bay – Simms Cove.

5. The unusual locality context including the shape of the coastal geography, and positioning of the public beach, road and car parking area with panoramic views at the end of Simms Cove Road, as well as the position, siting and form of many private buildings on allotments and certain structures or works on or over the adjacent cliff bank.

6. Complying development includes (regulations Schedule 4, Part 1, 1(1)(a)), the "construction of a new building in the same, or substantially the same, position as a building which was demolished within the previous 3 years where the new building has the same, or substantially the same, layout and external appearance as the previous building".

7. Acknowledgement of the complying development policy context for the Zone (RZ PDC 5) enabling large sheds/garages/outbuildings up to 40 square metres in area and 3.5 metres in height to be located within 600mm of rear boundaries (in this case the western boundary facing the coast), to be borne in mind when weighing up and considering the impacts of the proposed building.

8. The erosion protection works undertaken and relied upon, on adjacent Crown Land on the cliff face – based on engineering advice and recommendations, advice of the Coast Protection Board (Exhibit A5) and Council’s condition 14 on the prior development approval (Exhibit A2) – with regard to on-going maintenance and management issues and implications of either individual actions or non-action of neighbours or possible collective response and works by either the Council or the State in the future.

Planning Assessment

27 I agree with the parties that the two key bundle of issues revolve around visual amenity impact of the design and siting (to the private and public realms) and coastal protection considerations and risks due to the siting and proximity to the cliff top and cliff face of the proposed (existing) building. Adequacy of private open space for the dwelling with the internal modifications, resulting in potentially two additional bedrooms, but given the additional outdoor deck space both front and rear and proximity to a very large coastal open spaces, whilst not meeting the guideline in CW Residential Development PDC 19, is nevertheless, assessed to be acceptable – a point conceded by Mr Hutchison.

Visual Amenity Impacts

28 The key elements for consideration are the rear (western – coastal) boundary setback of the dwelling and balcony (affecting both public realm visual amenity, for example from the beach and the peninsula car park to the south, and on the private visual amenity, particularly coastal view reduction from parts of the lawn and front verandah of the adjoining dwelling set well back at 7 Trelawney Street); and overlooking – privacy loss impacts (to the front open space, verandah and front bedroom windows of the adjoining dwelling at 7 Trelawney Street).
29 Considering the latter first, the eastern upper level balcony of the proposed (existing) dwelling on the subject land has a wing wall to the south (and north) side, that ensures no overlooking to the front verandah or front open space of No. 7. The western upper level balcony proposed has no wing wall to the south (or north) side, no doubt to maximise the angles of private views from the balcony and within the dwelling toward the south and north (as encouraged by RZ Objective 3(d)). As a result, from the southern end of the balcony a direct view can be obtained to the whole of the front open space and verandah and, apparently, into front windows of the dwelling at No. 7. That is not satisfactory. Partial views may also be obtained from two vertical shaped openable windows of the Family Room at first floor level over the same area and features of No. 7. Whilst not shown on the elevation plan, some obscure glazing has been placed in the lower two panes of each window, however they are openable. A condition of any consent granted, could readily ensure obscure glazing to be 1.7 metres above floor level and openable windows to more than 200mm.
30 In my assessment, whilst the front of No. 7 is relatively open to view generally, including from the unmade public road to the south, it would be reasonable having regard to CW Residential Development Objective 5 para 3 and Principles 7(d)(iii) and 9, to have either an opaque glazing panel or other opaque wing wall to 1.7 metres in height above the balcony floor level to the southern end. This can also be a condition of any consent. It is not required on the northern side due to the line, angle of views and predominantly downward views to the roof of the single storey dwelling at No. 9.
31 Secondly, I assess private amenity impacts of coastal view reduction given the setback and siting of the proposed dwelling both as it stands alone, or in comparison to the assumed original siting (Exhibit A3) setback a further 6 metres or so to the east, away from the western boundary. Under either scenario, there will be a reduction in north-west angled coastal views from perhaps half of the front open space and from parts of the verandah of No. 7. There will remain however, extensive direct and open views to the west and to the south-west over the coast including the sea and from the front part of the open space to the north-west. Other than RZ Objective 3(d) referring to "development to maximise outlook ... to the physical attributes of the area" and CW Residential Development Principle 7(d)(i), there are no specific guideline criteria for the protection of private views enjoyed by existing development or other land to the coast or to other physical attributes of an area. I also note the relative general position of the original dwelling on the subject land (Exhibits A4 and A9) that would have caused a similar, if not greater impediment to the north-west angled coastal views from No. 7. The siting of the proposed dwelling and balcony are assessed to be acceptable under the consideration of reduction of coastal views.
32 There are a number of other private visual amenity impacts from the appearance of the proposed dwelling and balcony visible above the retaining wall and fence between Nos. 7 and 7A, and from some overshadowing caused to parts of the front open space of No. 7 to the south. The proposed dwelling and roof combined protrudes by some 5 metres for a length of 15 metres or so, and the roof is designed to curve away from the southern boundary. The upper walls are punctuated by the vertical, and one horizontal, windows. Given these factors, I assess it to sufficiently meet relevant guidelines regarding bulk, articulation and appearance including RZ Objectives 1 and 5 and CW Residential Development Objectives 2 and 5 (and paragraph thereafter), PDC 3(b), 6, 7, 9, 10 and 15 and Coastal Development PDC 15. The northern elevation is of even less significance given the positions of the dwelling, outbuildings and other features of No. 9.
33 Thirdly, turning to the visual impacts of the building and balcony setback and siting relative to the rear, western - coastal boundary on the public realm, particularly from the beach and coast to the west and south-west and the public car park and viewing point at the end of the small peninsula west of Simms Cove Road. The building will be prominently visible from external vantage points both near, within approximately 30-100 metres and far, from perhaps 100 and up to 200 metres (and from further afield but with much less prominence); as would have been the previous single storey dwelling (refer Exhibit A9), but somewhat more so than the assumed original setback and siting approval (Exhibits A2 and A3)), 6 metres or so further back or eastward from that boundary. The extending roofed balcony, projecting some 7.5 metres from the face of the two storey dwelling to within 1.2 metres at its closest to the boundary and being some 6.5 metres in height, is particularly so. I assess it to be a unique jarring element that is visually dominant, skylined to view from the beach from many positions and angles, not sited sympathetically with the built form character of the locality and impacting negatively on the visual amenity and built form appearance in the public realm. It is strongly at odds with CW Coastal Development Principle 15:

15 Development within urban and tourist accommodation zones should be designed and sited in sympathy with the existing natural and built form character of its locality. It should not be out of scale, of conflicting colour or materials or detract from any natural backdrop to the zone, nor project above the skyline visible from the coast.

34 It also fails to sufficiently meet CW Appearance of Land and Buildings Objectives 1 and 4, and Principles 1 and 2; and Residential Development Objectives 2 and 3, Principle 3(b) and perhaps Principle 9 (visual dominance nuisance to adjoining residents).
35 Even mindful of and having regard to complying development policies for outbuildings up to 3.5 metres in height and within 600mm of the rear (in this case western-coastal) boundary, the previous dwelling siting and form, and the existence of the approvals Exhibits A2/A3, as well as other building setbacks in the locality, the minimal setback, coupled with the greater height and obtrusiveness of the balcony and its front columns and roof form are not acceptable. The photo on (counted) p.8 of Exhibit R2 is particularly instructive.
36 Visual amenity qualities will, in all of the circumstances, be unreasonably and unacceptably impacted upon and reduced by the balcony projection. I deduct from the oral evidence of Ms Nolan an acknowledgement of the impact of the balcony and that its curtailment was both potentially practical and would minimise impacts and improve visual amenity. However, I assess in all the relevant circumstances and factors to be weighed up, including the prior approval, that the balance of the dwelling siting and setback as well as other aspects of its appearance are acceptable on visual amenity impact grounds.
37 In my assessment, the projecting balcony needs to be reduced to the alignment with the balance of the west facing balcony, that is, a relatively generous width of 2.4 metres (by some 13 metres in length). If shade is desired over the swimming pool, a lightweight, sail cloth style of structure of much lower height than 6.5 metres may be appropriate.
38 Some regard is given to the design and siting of future dwellings and potential balconies on vacant allotments nearby to the south (or redevelopment of other near properties in the locality). Whilst very much each on their own merits, approval to the proposed projecting balcony could be utilised to support other similar siting and design, that in this case I assess not to be in accord with the Development Plan guidelines cited above.

Coastal Protection Considerations
(CW Development Generally Objectives 1, 2(b); Coastal Development Objectives 1-8, 10-15 and PDC 1, 3, 4, 11, 30, 31, 33, 34 and 42)

39 The adjacent coastal cliff is angled to the western boundary of the subject land and located approximately 1.5 metres (southern end) and 4 metres (northern end) to the west. The width of the cliff face is in the order of 10-11 metres and its height in the order of 9-10 metres above AHD. It is generally described by Dr Mitchell as comprising sandy soil at the top with a calcrete layer approximately two thirds the way up, in parts and with a silty sand at the bottom. It is said to be relatively strong when dry but of a collapsing and weaker nature when wet. The coastal-marine erosion processes are at work particularly at the base but also on the whole face and terrestrial erosion processes (mainly stormwater runoff) at work at the top.
40 The subject land allotment relative to such cliffs is not unique, indeed there may be as many as 50 or so within the RZ from Simms Cove Road to Bay Road and the jetty in not dissimilar (though of course locally variable) circumstances.
41 The evidence of Dr Mitchell (as well as Mr Magryn) and the view and photos, indicate the extent and nature of certain private works on the cliff face designed to protect particularly the face adjacent the subject land and by others adjacent their properties, from erosion. The analysis of Mr Magryn utilising aerial photography suggests erosion by both marine and terrestrial processes and an easterly, lateral movement of the "cliff top" over the last 56 years of several even up to 10 metres. As acknowledged by Mr Magryn it is open to error and not possible to predict with any accuracy. In addition, the private works on the cliff face appear to have had and are likely to have a protective slowing effect on that movement (acknowledged by both engineers). Nevertheless, collapses have and are likely to continue to occur (as shown in the photo (counted) p.10 in Exhibit R2) north of the subject land.
42 I have carefully considered the evidence of both expert engineers together with the prior written advice of the Coast Protection Board (Exhibit A5 dated 15 February 2004), concerning works proposed and associated with the prior development application and approval (Exhibits A2 and A3). The advice of the latter found its way as an inclusion numbered condition 14 of the consent/development approval in Exhibit A2.
43 Whilst acknowledging the processes, Dr Mitchell as the proponent designer of the protective works for the cliff face and the Coast Protection Board, indicate acceptability and no objection to the specified works. It would appear that they have been undertaken (vide Exhibit A13) except with respect to application to a distance of 8 metres sideways in front of adjoining properties. Apparently the adjoining owners were not receptive to such works. According to Dr Mitchell, there are alternatives for additional side protective works to the edges of the work already undertaken that could be implemented, if the further work in front of the other properties is not able to be implemented.
44 Mr Magryn acknowledged the design selected, the work undertaken (as far as was visible or from photos), that it was a protective improvement compared to the cliff face with no such works and the alternatives for side protective works. However his opinion was that it was not adequate or sufficient in the long term and that further collapse was likely. He believed that marine processes were more of a problem and issue than terrestrial ones (contrary to the views of the Coast Protection Board). He would recommend a different design solution at the base with a geotextile style base, large rocks, not mortared or fixed to enable some flexibility of movement, but filled with smaller rocks and then large boulders on top, as I understand it. Neither engineer had closely considered, anticipated or assessed the possible affects of the existing or other protective works on the long term littoral sand movement on the beach. That remains an unknown.
45 The proposed development application (assuming the proposed dwelling and balcony are 6 metres closer to the cliff top than previously approved), does not affect the above factors and issues any more or less than the approved application (Exhibits A2 and A3), and with the replacement swimming pool approved by the Council (Exhibit A6). The factors of the close positioning of the previous dwelling now replaced; the complying development for replacement of buildings (Schedule 4 Part 1, 1(1)(a) of the Regulations) in substantially the same location, and in the RZ for a large shed/garage/outbuilding only 600mm from the rear (western-coastal) boundary and therefore approximately 3 metres from the cliff top at its closest; and the Council approval of the new swimming pool within perhaps 5 metres of the cliff top, are all relevant factors to take into consideration.
46 I find that appropriate protection from coastal hazards is provided and can be ensured (CW Coastal Development Objective 10 and Principle 30). Principle 34, seeking to tie in other commitments by the Council is problematic. It does not appear to have been the adopted approach of the Council to date. I accept, on the basis of the opinions, evidence or positions of Dr Mitchell and the Coast Protection Board that the protective works are likely to be adequate, subject to side protection and on-going maintenance and management responsibilities and actions by the adjacent owner/proponent (the appellant), where necessary, and as envisaged by CW Coastal Development Objective 1, para 6 thereafter, Objectives 3 and 12 and Principle 31(a).
47 The long-term erosion forces and future of the cliff cannot be easily predicted and potentially, as envisaged in CW Coastal Development Objective 4 and paras 1 and 2 thereafter, or in Principle 42, some areas, allotments or dwellings/other buildings may need to be removed to alternative locations whether voluntarily or by compulsory acquisition or by other redevelopment and management program of government. That does not, in my assessment mean no infill or replacement development on private allotments in the RZ of the kind proposed, that improves the risk position, increases protection, and sets buildings back further than other relevant benchmarks as cited above.
48 I consider that the proposed development will not exacerbate, and in some respects improve, the position with respect to coastal protection goals and measures. It will not aggravate or create coastal-marine or terrestrial erosion of itself. I acknowledge that it does not meet certain guidelines in the Plan, for example Coastal Development Principle 11 with regard to embankments or Principle 31 in part or 33 with regard to erosion buffers to allow for 100 years of coastal retreat. However, I do not consider, having regard to all the relevant factors, that this is fatal to the application. Removal of the forward projecting balcony and two column supports, as mooted above for visual amenity reasons, would marginally improve the position but the approved and developed swimming pool is a constraint, encouraging on-going long term private protection measures.
49 Mr Hutchison’s evidence, whilst nominally as an independent expert (having regard to his long involvement with the Council and his repeated appearances giving evidence in its cases), was often voiced or prefaced as being the Council’s position, no more so than on this issue. He explained the Council’s desire to defer likely general protective works (and public works costs) along the cliff face from Moonta Bay to Simms Cove, for as long as possible, and that timing is an issue for it. He felt that the further back the buildings are sited the better (within reason). His evidence, purportedly as an independent expert, was not compelling, or to be preferred over that of Ms Nolan.
50 I have considered, in the light of Adelaide Hills Council v Gibson [2006] SASC 181 and City of Charles Sturt v Hatch [1999] EDLR 485, the potential and any ramifications for a flow on effect to other land and future proposals that may come before the planning authority, arising from approval to this development, in coastal protection terms. However, I conclude that it is not a significant consideration or a reservation as, for this issue particularly, all of the relevant circumstances are unique to this matter and unique to each land parcel, including the degree of improvement and protection proposed, and therefore to be properly adjudged on an individual merits and fact and degree basis.

Conclusions

51 The development proposal has been assessed having regard to the evidence, what was seen on the view, the relevant Development Plan provisions and in the light of all relevant circumstances and factors. It is found to be acceptable and certain deficiencies, including the provision of private open space, the propensity for overlooking, view reduction and coastal protection implications, not fatal, and sufficiently meeting the Development Plan, except with respect to the protruding balcony, on visual amenity reasoning. A relatively minor amendment to the development proposal (not changing the essential nature and purpose of the proposal), involving removing the projecting balcony element and its re-alignment with the proposed (existing) 2.4 metre wide balcony, and if desired, perhaps replaced with a light weight sail shade structure over the swimming pool, of less height, mooted above, may sufficiently overcome a significant visual amenity shortcoming, that otherwise is considered to be fatal to the application. That option was put to both planners and counsel for both parties addressed it, with counsel for the appellant indicating it was amenable and open to further consideration of amendments to the western balcony.
52 The Court afforded the appellant the opportunity to make further minor amendments to the development proposal as mooted, and both parties the opportunity to confer and place further submissions before the Court regarding conditions of Provisional Development Plan Consent, including related to upper level south facing windows (obscure glazing and limited openability); of wing wall obscure screening to 1.7 metres on the southern end of the west facing balcony; and for side/edge protective works to the adjacent cliff face and on-going management – maintenance responsibilities offered by the appellant but subject to the approval and satisfaction of the Crown, if necessary.
53 I heard the parties on 15 December 2006 and on 25 January 2007 regarding amended plans and conditions. Amended plans were tendered (Exhibit A14) along the lines referred to above, including the introduction of a shade sail, and window and other screening treatments. The Council opposed the attaching position of the sail fixing and therefore its height and obtrusiveness and sought a condition to modify it. I do not agree that such further variation is necessary on visual grounds. The front (western) elevation indicates the relatively limited extent of the shade sail above the upper balcony/balustrade level. Of more importance is ensuring that the shade sail colour complements the building, rather than stands out obtrusively. A condition can achieve that.
54 The appellant suggested two draft conditions. One condition requiring maintenance of the existing protection works on the cliff was not opposed by the Council and is supported by CW Coastal Development Objective 3 and Principles 30 and 31. A second condition dealing with possible future side protection works on the cliff should it be required, was not opposed in principle by the Council, but rather the likely design approach to such possible works was not agreed between the respective engineers of the parties (refer Exhibits A15 and R5). I agree with the submissions of the appellant that a more flexible approach to possible further protection works is preferred, rather than the engineers attempting to find an agreement on the design approach now for what is an uncertain future occurrence and with technology and design treatments likely to be advancing over the years.
55 Hence, I propose a modification of the draft condition to specify the objective outcome required and that the design work be undertaken and supervised by an appropriately qualified engineer, and such a condition is supported by the Development Plan clauses referred to above.
56 I understand that in setting-finalising an enforcement action concerning the building, the question of timing of the rectification works would be specified and that it is not appropriate to do so in this merits matter.
57 On the above basis with amended plans and conditions, I find that the amended proposal will be sufficiently in accord with the Development Plan to warrant conditional Provisional Development Plan Consent.

Decision

58 The appeal is upheld and the decision of the Council reversed on the basis of amended plans and the attachment of conditions to the issue of Provisional Development Plan Consent as follows:

1. The development shall be undertaken in accordance with the plans, drawings, specifications and other documents submitted with and forming part of the application, including the amended plans prepared by Artec Building Designers Pty Ltd dated 13 December 2006, described as Site Plan Elevations, and Plan Layout, all marked Exhibit A14, except where varied by the following conditions.

2. Stormwater disposal from the development hereby approved shall be in accordance with the plans referred to above and shall be maintained at all times to the satisfaction of the Council.

3. The shade sail affixed to the western balcony shall be of a colour to complement and blend with the walls of the dwelling to the reasonable satisfaction of the Council.

4. Subject to and in accordance with the terms of any consent, requirement or direction made by or on behalf of:

(a) the Minister to whom the administration of the Crown Lands Act 1929 (or any amendment or substitution thereof) is for the time-being committed or a delegate of that Minister;

(b) any other person or body for the time-being having the care, control or management of the relevant land (the cliff facing Simms Cove); or

(c) any other authority whose consent may be necessary, or having the power as a matter of law to make any such requirement or direction;

the person for the time-being having the benefit of this consent shall, insofar as they are able, at all times maintain and keep in good repair all existing protection works, including associated vegetation on section 3000, Hundred of Wallaroo in the area named Moonta Bay adjacent to the site of the development for the purpose of protecting that land and the site of the development from coastal and terrestrial erosion.

5. In the event that the land comprising the cliffs facing Simms Cove immediately to the north and/or immediately to the south of the existing protection works erodes to the sides of the existing GO-grid protection walling in a manner that adversely affects the stability of the subject land or the integrity of the existing protection works, the person for the time-being having the benefit of this consent shall, and insofar as they are able, subject to the same qualifications in clauses 4(a) to 4(c) above, install further side protection works to provide for the stability of the subject land and the integrity of the cliff and existing protection works. Such further works shall be designed and the implementation supervised by a suitably qualified Engineer with coastal/civil engineering experience, agreed to by both the Council and the person having the benefit of this consent.

59 There will be an order to that effect.

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1	This is an applicant appeal against the decision of the District Council of the Copper Coast (the Council), to refuse Development Application No. 340/085/06 made under the Development Act 1993, seeking Provisional Development Plan Consent for a detached dwelling, balconies and garage/boat store building at Moonta Bay.
2	The Council refused the application for the following reasons:

5	From the Certificate of Title (though at slight variance to a surveyors plan Exhibit R1 p.26), the site has a frontage of 15.29 metres to Trelawney Street, northern and southern boundary depths of 64.07 and 58.90 metres respectively; and a western angled rear boundary on the coastal side of approximately 16.26 metres, providing for a site area in the order of 940 square metres.
6	The western boundary of the land is adjacent the top of the coastal cliff that is setback approximately 1.5-4.0 metres angled from south to north, which form Simms Cove and its beach, some 1.2 km south of Moonta Bay proper – Bay Road and the jetty.
7	The land accommodates an old, large garage/shed on its eastern (road) and part of the southern boundary and toward the western parts a large two storey detached dwelling (with balconies and internal garage/boat store) and with both a parallel and forward projecting balcony on the western or sea side and a narrower parallel balcony on the eastern side, all built in late 2005 purportedly on the basis of the plans and approval in Exhibits A2 and A3. A new replacement swimming pool and fence enclosure also exist, and said to be approved by Exhibit A6. It sits under the forward projecting balcony.
8	The land is relatively flat now, sitting perhaps 900mm lower than its neighbour to the south (No. 7) and a similar height higher compared to its neighbour to the north (No. 9). An older retaining wall and fence exist along the southern boundary and retaining walls, steps and landscaping/rock gardens exist on the western side straddling the boundary and onto Crown Land (refer Exhibit R4, attachment 1).
9	The land as presently developed is shown in photos (oblique and aerial) within Exhibit R2 and the attachment to Exhibit A4, and as it previously was with a prior single storey detached dwelling, partially straddling the western boundary (Exhibit A4), and in photos in Exhibits A9 and R4 attachment 2.
10	Considerable retaining and revegetation work has occurred particularly in recent years on the cliff face in front of the subject land, like a number of other occurrences and with gated steps projecting from the top of the cliff to the beach (vide photos in Exhibits A13 and R2).

11	The development proposal is contained in Exhibit A1 and it seeks to regularise and have approved what has been built on site and particularly its siting in respect to property boundaries. Key differences or amendments compared to Exhibit A3 – "the original" approved plans (and assuming the Council’s position regarding siting with the face of the dwelling at its north-western point being set back 17.3 metres from the north-western corner boundary and approximately 16 metres to the nearest point of the western boundary) are:
•	the dwelling face at the south-western corner sited some 5.8 metres (scaled) from the south-western corner of the land, the nearest point of the western boundary and with the roofed balcony at its south-western corner some 3.5 metres to the south-western corner of the land (and of no real significance in this assessment, angled post supports amended to vertical ones);
•	the dwelling face at the north-western corner sited some 10.0 metres (scaled) from the nearest point on the western boundary and the projecting balcony (6.5 metres in height above ground level), angled to the western boundary and set back some 1.2 to 2.6 metres at its corners;
•	an increase in the projecting, angled balcony size (proposed at 7.75 metres compared to 6.7 metres as approved) from the dwelling face to its outer western edge and of somewhat increased width and area;
•	external windows/door alterations including the laundry door changed to a store window; three vertical windows reduced to two facing south from the family room; reduced window pane width to the south facing bedroom 1 and north facing bedroom 2 and kitchen windows; and
•	internal changes comprising a swap of the store and laundry locations and a large bedroom 3 converted to two bedrooms numbered 3 and 4; and a large games room converted to two smaller games and study rooms (both capable of use as bedrooms).
12	Other than some consequence for private open space guidelines and provision (number of rooms that are bedrooms or capable of being used as bedrooms increased from 4 to 6), the alterations outlined in the last two dot points are not of any significant town planning substance.
13	Certain on-going maintenance and management work is implied for the coastal cliff and Council’s original approval, Exhibit A2, included a condition No. 14 having regard to the Coast Protection Board advice (Exhibit A5) and engineering reports and advice (refer Exhibits A10, A11 and attachment 3 of R4).

14	Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal impacts upon, to a notable degree, the locality boundary in this matter is to be based primarily on visual impact and character perception factors and with regard to physical coastal processes. I have had regard to that put forward by Mr Hutchison and generally described by Ms Nolan. I define the locality to comprise that shown on the locality plan attached to Exhibit R4 prepared by Mr Hutchison together with three dwellings to the south on the opposite corners of Trelawney Street with Simms Cove Road and the frontage of land and dwellings on the eastern side of Trelawney Street up to Francis Place. It includes more densely spaced development along Francis and Queens Place and the unmade Plymonth Street south of 7 Trelawney Street.
15	Other than the coast (in the Urban Coastal Zone (UCZ)) abutting the subject land and other cliff top fronted land, the locality zoning is entirely Residential Zone (RZ) with a Tourist Accommodation (Harry Point) Zone, new subdivision and some recent large two storey dwellings forming a backdrop south of Simms Cove Road (refer backdrop in photo 2 of Exhibit A13).
16	Land use is mostly residential, excepting a few vacant allotments, public roads, and the public car park and recreation area on the small peninsula at the end of Simms Cove Road and natural coastal areas used at times for passive and active recreation purposes. The beach was sandy at the time of viewing and of moderate width and the coastal cliffs in the order of 9-10 metres high above the beach and AHD in its central parts, reducing to perhaps 4-5 metres to the southern and northern perimeters. Along the cliff face, some areas are laid back, some vertical and some with overhangs. There is evidence that over many years structures (such as steps/gates, a small boat slip way and retaining works) have been erected on the face. Collapse and coastal as well as terrestrial erosion is evident in parts. It is described as being made of collapsible sands that are weak when wet. A varied limestone nodule layer lies about two thirds up in parts, seemingly slowing erosion rates. The analysis of Mr Magryn, whilst problematic and not very accurate, nevertheless indicates the general extent of erosion over the last 56 years (Exhibit R2, aerial and other photographs).
17	Dwelling types are mostly detached dwellings, though there are a few semi-detached dwellings. Allotment sizes and shapes are varied and built form includes a mix of single and two storey buildings, many, where available, capitalising on coastal views. There is also a mix of age and condition with a few remnant old dwelling/cottages, a number of medium aged buildings of average to poor condition and a number of new dwellings and buildings of contemporary architectural style in reasonably good condition.
18	Building setbacks to side and road boundaries are quite varied from 0 to perhaps 10 metres or more. They are also varied to the beach (a rear boundary for most allotments) ranging from perhaps 6-20 metres. Ms Nolan has described in detail the curved coast and the staggered setbacks of dwellings north and south of the subject land (refer Exhibit A7 at paras 4.2 and 4.3). The dwelling to the immediate north (No. 9) sits a little forward of the dwelling face proposed (as existing). The dwelling to the south (No. 7), a very old cottage, sits well back from both its western boundary and the alignment of the proposed (existing) dwelling with a relatively large open, lawned front yard area. It would have also done so relative to the dwelling siting as assumed approved by the Council (Exhibit A3).
19	In the words of Ms Nolan, with which I concur:

23	Section 33(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-appropriate Development Plan and s 35(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 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.
24	In terms of s 35 and the provisions of the relevant Development Plan, particularly RZ, the amended proposal is neither a complying nor a non-complying development having regard to the relevant principles. It is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pro’s and con’s and considering whether the proposal is conducive to the distilled overall intent, purpose and desired character and amenity of the relevant Zone and in the specific locality context. 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 with a better or a so-called ideal design solution or planning outcome. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent. Having said that, minor amendments can still be sought and included in a decision.
25	It is also of some relevance to consider and compare what development is either complying in the RZ and complying or not classed as "development" under the Act and regulations, forming part of a reasonable expectation for development on the subject land and in the locality.
26	There are a large number and combination of circumstances and considerations in the assessment of this matter, more so than usual. In addition to the task of identifying, applying and weighing up the relevant Development Plan guidelines as referred to above, there are the following aspects that also require careful consideration and weighting:

28	The key elements for consideration are the rear (western – coastal) boundary setback of the dwelling and balcony (affecting both public realm visual amenity, for example from the beach and the peninsula car park to the south, and on the private visual amenity, particularly coastal view reduction from parts of the lawn and front verandah of the adjoining dwelling set well back at 7 Trelawney Street); and overlooking – privacy loss impacts (to the front open space, verandah and front bedroom windows of the adjoining dwelling at 7 Trelawney Street).
29	Considering the latter first, the eastern upper level balcony of the proposed (existing) dwelling on the subject land has a wing wall to the south (and north) side, that ensures no overlooking to the front verandah or front open space of No. 7. The western upper level balcony proposed has no wing wall to the south (or north) side, no doubt to maximise the angles of private views from the balcony and within the dwelling toward the south and north (as encouraged by RZ Objective 3(d)). As a result, from the southern end of the balcony a direct view can be obtained to the whole of the front open space and verandah and, apparently, into front windows of the dwelling at No. 7. That is not satisfactory. Partial views may also be obtained from two vertical shaped openable windows of the Family Room at first floor level over the same area and features of No. 7. Whilst not shown on the elevation plan, some obscure glazing has been placed in the lower two panes of each window, however they are openable. A condition of any consent granted, could readily ensure obscure glazing to be 1.7 metres above floor level and openable windows to more than 200mm.
30	In my assessment, whilst the front of No. 7 is relatively open to view generally, including from the unmade public road to the south, it would be reasonable having regard to CW Residential Development Objective 5 para 3 and Principles 7(d)(iii) and 9, to have either an opaque glazing panel or other opaque wing wall to 1.7 metres in height above the balcony floor level to the southern end. This can also be a condition of any consent. It is not required on the northern side due to the line, angle of views and predominantly downward views to the roof of the single storey dwelling at No. 9.
31	Secondly, I assess private amenity impacts of coastal view reduction given the setback and siting of the proposed dwelling both as it stands alone, or in comparison to the assumed original siting (Exhibit A3) setback a further 6 metres or so to the east, away from the western boundary. Under either scenario, there will be a reduction in north-west angled coastal views from perhaps half of the front open space and from parts of the verandah of No. 7. There will remain however, extensive direct and open views to the west and to the south-west over the coast including the sea and from the front part of the open space to the north-west. Other than RZ Objective 3(d) referring to "development to maximise outlook ... to the physical attributes of the area" and CW Residential Development Principle 7(d)(i), there are no specific guideline criteria for the protection of private views enjoyed by existing development or other land to the coast or to other physical attributes of an area. I also note the relative general position of the original dwelling on the subject land (Exhibits A4 and A9) that would have caused a similar, if not greater impediment to the north-west angled coastal views from No. 7. The siting of the proposed dwelling and balcony are assessed to be acceptable under the consideration of reduction of coastal views.
32	There are a number of other private visual amenity impacts from the appearance of the proposed dwelling and balcony visible above the retaining wall and fence between Nos. 7 and 7A, and from some overshadowing caused to parts of the front open space of No. 7 to the south. The proposed dwelling and roof combined protrudes by some 5 metres for a length of 15 metres or so, and the roof is designed to curve away from the southern boundary. The upper walls are punctuated by the vertical, and one horizontal, windows. Given these factors, I assess it to sufficiently meet relevant guidelines regarding bulk, articulation and appearance including RZ Objectives 1 and 5 and CW Residential Development Objectives 2 and 5 (and paragraph thereafter), PDC 3(b), 6, 7, 9, 10 and 15 and Coastal Development PDC 15. The northern elevation is of even less significance given the positions of the dwelling, outbuildings and other features of No. 9.
33	Thirdly, turning to the visual impacts of the building and balcony setback and siting relative to the rear, western - coastal boundary on the public realm, particularly from the beach and coast to the west and south-west and the public car park and viewing point at the end of the small peninsula west of Simms Cove Road. The building will be prominently visible from external vantage points both near, within approximately 30-100 metres and far, from perhaps 100 and up to 200 metres (and from further afield but with much less prominence); as would have been the previous single storey dwelling (refer Exhibit A9), but somewhat more so than the assumed original setback and siting approval (Exhibits A2 and A3)), 6 metres or so further back or eastward from that boundary. The extending roofed balcony, projecting some 7.5 metres from the face of the two storey dwelling to within 1.2 metres at its closest to the boundary and being some 6.5 metres in height, is particularly so. I assess it to be a unique jarring element that is visually dominant, skylined to view from the beach from many positions and angles, not sited sympathetically with the built form character of the locality and impacting negatively on the visual amenity and built form appearance in the public realm. It is strongly at odds with CW Coastal Development Principle 15:

34	It also fails to sufficiently meet CW Appearance of Land and Buildings Objectives 1 and 4, and Principles 1 and 2; and Residential Development Objectives 2 and 3, Principle 3(b) and perhaps Principle 9 (visual dominance nuisance to adjoining residents).
35	Even mindful of and having regard to complying development policies for outbuildings up to 3.5 metres in height and within 600mm of the rear (in this case western-coastal) boundary, the previous dwelling siting and form, and the existence of the approvals Exhibits A2/A3, as well as other building setbacks in the locality, the minimal setback, coupled with the greater height and obtrusiveness of the balcony and its front columns and roof form are not acceptable. The photo on (counted) p.8 of Exhibit R2 is particularly instructive.
36	Visual amenity qualities will, in all of the circumstances, be unreasonably and unacceptably impacted upon and reduced by the balcony projection. I deduct from the oral evidence of Ms Nolan an acknowledgement of the impact of the balcony and that its curtailment was both potentially practical and would minimise impacts and improve visual amenity. However, I assess in all the relevant circumstances and factors to be weighed up, including the prior approval, that the balance of the dwelling siting and setback as well as other aspects of its appearance are acceptable on visual amenity impact grounds.
37	In my assessment, the projecting balcony needs to be reduced to the alignment with the balance of the west facing balcony, that is, a relatively generous width of 2.4 metres (by some 13 metres in length). If shade is desired over the swimming pool, a lightweight, sail cloth style of structure of much lower height than 6.5 metres may be appropriate.
38	Some regard is given to the design and siting of future dwellings and potential balconies on vacant allotments nearby to the south (or redevelopment of other near properties in the locality). Whilst very much each on their own merits, approval to the proposed projecting balcony could be utilised to support other similar siting and design, that in this case I assess not to be in accord with the Development Plan guidelines cited above.

39	The adjacent coastal cliff is angled to the western boundary of the subject land and located approximately 1.5 metres (southern end) and 4 metres (northern end) to the west. The width of the cliff face is in the order of 10-11 metres and its height in the order of 9-10 metres above AHD. It is generally described by Dr Mitchell as comprising sandy soil at the top with a calcrete layer approximately two thirds the way up, in parts and with a silty sand at the bottom. It is said to be relatively strong when dry but of a collapsing and weaker nature when wet. The coastal-marine erosion processes are at work particularly at the base but also on the whole face and terrestrial erosion processes (mainly stormwater runoff) at work at the top.
40	The subject land allotment relative to such cliffs is not unique, indeed there may be as many as 50 or so within the RZ from Simms Cove Road to Bay Road and the jetty in not dissimilar (though of course locally variable) circumstances.
41	The evidence of Dr Mitchell (as well as Mr Magryn) and the view and photos, indicate the extent and nature of certain private works on the cliff face designed to protect particularly the face adjacent the subject land and by others adjacent their properties, from erosion. The analysis of Mr Magryn utilising aerial photography suggests erosion by both marine and terrestrial processes and an easterly, lateral movement of the "cliff top" over the last 56 years of several even up to 10 metres. As acknowledged by Mr Magryn it is open to error and not possible to predict with any accuracy. In addition, the private works on the cliff face appear to have had and are likely to have a protective slowing effect on that movement (acknowledged by both engineers). Nevertheless, collapses have and are likely to continue to occur (as shown in the photo (counted) p.10 in Exhibit R2) north of the subject land.
42	I have carefully considered the evidence of both expert engineers together with the prior written advice of the Coast Protection Board (Exhibit A5 dated 15 February 2004), concerning works proposed and associated with the prior development application and approval (Exhibits A2 and A3). The advice of the latter found its way as an inclusion numbered condition 14 of the consent/development approval in Exhibit A2.
43	Whilst acknowledging the processes, Dr Mitchell as the proponent designer of the protective works for the cliff face and the Coast Protection Board, indicate acceptability and no objection to the specified works. It would appear that they have been undertaken (vide Exhibit A13) except with respect to application to a distance of 8 metres sideways in front of adjoining properties. Apparently the adjoining owners were not receptive to such works. According to Dr Mitchell, there are alternatives for additional side protective works to the edges of the work already undertaken that could be implemented, if the further work in front of the other properties is not able to be implemented.
44	Mr Magryn acknowledged the design selected, the work undertaken (as far as was visible or from photos), that it was a protective improvement compared to the cliff face with no such works and the alternatives for side protective works. However his opinion was that it was not adequate or sufficient in the long term and that further collapse was likely. He believed that marine processes were more of a problem and issue than terrestrial ones (contrary to the views of the Coast Protection Board). He would recommend a different design solution at the base with a geotextile style base, large rocks, not mortared or fixed to enable some flexibility of movement, but filled with smaller rocks and then large boulders on top, as I understand it. Neither engineer had closely considered, anticipated or assessed the possible affects of the existing or other protective works on the long term littoral sand movement on the beach. That remains an unknown.
45	The proposed development application (assuming the proposed dwelling and balcony are 6 metres closer to the cliff top than previously approved), does not affect the above factors and issues any more or less than the approved application (Exhibits A2 and A3), and with the replacement swimming pool approved by the Council (Exhibit A6). The factors of the close positioning of the previous dwelling now replaced; the complying development for replacement of buildings (Schedule 4 Part 1, 1(1)(a) of the Regulations) in substantially the same location, and in the RZ for a large shed/garage/outbuilding only 600mm from the rear (western-coastal) boundary and therefore approximately 3 metres from the cliff top at its closest; and the Council approval of the new swimming pool within perhaps 5 metres of the cliff top, are all relevant factors to take into consideration.
46	I find that appropriate protection from coastal hazards is provided and can be ensured (CW Coastal Development Objective 10 and Principle 30). Principle 34, seeking to tie in other commitments by the Council is problematic. It does not appear to have been the adopted approach of the Council to date. I accept, on the basis of the opinions, evidence or positions of Dr Mitchell and the Coast Protection Board that the protective works are likely to be adequate, subject to side protection and on-going maintenance and management responsibilities and actions by the adjacent owner/proponent (the appellant), where necessary, and as envisaged by CW Coastal Development Objective 1, para 6 thereafter, Objectives 3 and 12 and Principle 31(a).
47	The long-term erosion forces and future of the cliff cannot be easily predicted and potentially, as envisaged in CW Coastal Development Objective 4 and paras 1 and 2 thereafter, or in Principle 42, some areas, allotments or dwellings/other buildings may need to be removed to alternative locations whether voluntarily or by compulsory acquisition or by other redevelopment and management program of government. That does not, in my assessment mean no infill or replacement development on private allotments in the RZ of the kind proposed, that improves the risk position, increases protection, and sets buildings back further than other relevant benchmarks as cited above.
48	I consider that the proposed development will not exacerbate, and in some respects improve, the position with respect to coastal protection goals and measures. It will not aggravate or create coastal-marine or terrestrial erosion of itself. I acknowledge that it does not meet certain guidelines in the Plan, for example Coastal Development Principle 11 with regard to embankments or Principle 31 in part or 33 with regard to erosion buffers to allow for 100 years of coastal retreat. However, I do not consider, having regard to all the relevant factors, that this is fatal to the application. Removal of the forward projecting balcony and two column supports, as mooted above for visual amenity reasons, would marginally improve the position but the approved and developed swimming pool is a constraint, encouraging on-going long term private protection measures.
49	Mr Hutchison’s evidence, whilst nominally as an independent expert (having regard to his long involvement with the Council and his repeated appearances giving evidence in its cases), was often voiced or prefaced as being the Council’s position, no more so than on this issue. He explained the Council’s desire to defer likely general protective works (and public works costs) along the cliff face from Moonta Bay to Simms Cove, for as long as possible, and that timing is an issue for it. He felt that the further back the buildings are sited the better (within reason). His evidence, purportedly as an independent expert, was not compelling, or to be preferred over that of Ms Nolan.
50	I have considered, in the light of Adelaide Hills Council v Gibson [2006] SASC 181 and City of Charles Sturt v Hatch [1999] EDLR 485, the potential and any ramifications for a flow on effect to other land and future proposals that may come before the planning authority, arising from approval to this development, in coastal protection terms. However, I conclude that it is not a significant consideration or a reservation as, for this issue particularly, all of the relevant circumstances are unique to this matter and unique to each land parcel, including the degree of improvement and protection proposed, and therefore to be properly adjudged on an individual merits and fact and degree basis.

51	The development proposal has been assessed having regard to the evidence, what was seen on the view, the relevant Development Plan provisions and in the light of all relevant circumstances and factors. It is found to be acceptable and certain deficiencies, including the provision of private open space, the propensity for overlooking, view reduction and coastal protection implications, not fatal, and sufficiently meeting the Development Plan, except with respect to the protruding balcony, on visual amenity reasoning. A relatively minor amendment to the development proposal (not changing the essential nature and purpose of the proposal), involving removing the projecting balcony element and its re-alignment with the proposed (existing) 2.4 metre wide balcony, and if desired, perhaps replaced with a light weight sail shade structure over the swimming pool, of less height, mooted above, may sufficiently overcome a significant visual amenity shortcoming, that otherwise is considered to be fatal to the application. That option was put to both planners and counsel for both parties addressed it, with counsel for the appellant indicating it was amenable and open to further consideration of amendments to the western balcony.
52	The Court afforded the appellant the opportunity to make further minor amendments to the development proposal as mooted, and both parties the opportunity to confer and place further submissions before the Court regarding conditions of Provisional Development Plan Consent, including related to upper level south facing windows (obscure glazing and limited openability); of wing wall obscure screening to 1.7 metres on the southern end of the west facing balcony; and for side/edge protective works to the adjacent cliff face and on-going management – maintenance responsibilities offered by the appellant but subject to the approval and satisfaction of the Crown, if necessary.
53	I heard the parties on 15 December 2006 and on 25 January 2007 regarding amended plans and conditions. Amended plans were tendered (Exhibit A14) along the lines referred to above, including the introduction of a shade sail, and window and other screening treatments. The Council opposed the attaching position of the sail fixing and therefore its height and obtrusiveness and sought a condition to modify it. I do not agree that such further variation is necessary on visual grounds. The front (western) elevation indicates the relatively limited extent of the shade sail above the upper balcony/balustrade level. Of more importance is ensuring that the shade sail colour complements the building, rather than stands out obtrusively. A condition can achieve that.
54	The appellant suggested two draft conditions. One condition requiring maintenance of the existing protection works on the cliff was not opposed by the Council and is supported by CW Coastal Development Objective 3 and Principles 30 and 31. A second condition dealing with possible future side protection works on the cliff should it be required, was not opposed in principle by the Council, but rather the likely design approach to such possible works was not agreed between the respective engineers of the parties (refer Exhibits A15 and R5). I agree with the submissions of the appellant that a more flexible approach to possible further protection works is preferred, rather than the engineers attempting to find an agreement on the design approach now for what is an uncertain future occurrence and with technology and design treatments likely to be advancing over the years.
55	Hence, I propose a modification of the draft condition to specify the objective outcome required and that the design work be undertaken and supervised by an appropriately qualified engineer, and such a condition is supported by the Development Plan clauses referred to above.
56	I understand that in setting-finalising an enforcement action concerning the building, the question of timing of the rectification works would be specified and that it is not appropriate to do so in this merits matter.
57	On the above basis with amended plans and conditions, I find that the amended proposal will be sufficiently in accord with the Development Plan to warrant conditional Provisional Development Plan Consent.