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LOVRINOV v CITY OF CHARLES STURT [2007] SAERDC 3 (5 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.

LOVRINOV v CITY OF CHARLES STURT

[2007] SAERDC 3

Judgment of Commissioner Mosel

5 February 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development application for two 2 storey residential flat buildings comprising, in total, 4 dwellings - Residential 2A Zone - existing development in the locality and the proximity of the subject land to the beach a relevant consideration - the type, form, siting and density of the proposed development the principal planning issues - the scheme of the Plan a relevant consideration in deciding whether the type of development relevant is suitable for the proposal - the intent of the provisions for the Coastal Strip is among the considerations - form, siting and density results in a "tight" development but is nonetheless sufficient to satisfy the relevant design provisions - appeal allowed - Provisional Development Plan Consent granted subject to conditions.
Development Act 1993; Environment Resources and Development Court Act 1993, referred to.

LOVRINOV v CITY OF CHARLES STURT
[2007] SAERDC 3

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 By development application dated 9 April 2003, Mr G Lovrinov applied for Provisional Development Plan Consent to demolish the existing dwelling on the land at 125 Military Road ("the subject land") and undertake development described by the City of Charles Sturt ("the Council") as follows: "four two-storey dwellings within two separate buildings with associated on-site landscaping, car parking and vehicle access way". The long and seemingly arduous events leading to the decision of the Council to refuse consent are listed on pp 93 and 94 of Exhibit R1. The appeal was initiated. In the 12 month period in which the matter was the subject of a conference held pursuant to s 16 of the Environment Resources and Development Court Act 1993 the parties were not able to reach a settlement. The matter thus proceeded to hearing.
2 The decision notification dated 7 September 2005 (p 100, Exhibit R1), sets out a number of reasons for the Council’s refusal. Its decision was made in respect of the proposed development detailed in a set of plans that were the subject of a series of amendments over the 25 month period between the lodgement of the development application and the decision.
3 The proposed development upon which these proceedings are based were received by the Court as Exhibit A1. The proposal is detailed on 15 separate plans. The plans have been further amended but not to the extent that changes the essential nature of the proposal to which the decision of the Council relates.
4 There is no dispute between the parties that the Development Plan for the City of Henley and Grange dated 16 January 2003 ("the Plan") applies in the assessment of the development proposed. Since the lodgement of the development application, the Plan has been consolidated into the Development Plan for the whole of the City of Charles Sturt. The provisions of the Development Plan that apply to the subject land today play no part in the assessment.
5 In these proceedings Mr D Batge and Mr K Barnes, both qualified and experienced planners, provided expert evidence. Their statements of evidence, respectively, were received as Exhibits A2 and R2. Mr Lovrinov appeared in person. Ms Savva, of counsel, appeared for the Council.

The Subject Land

6 No. 125 Military Road is roughly rectangular in shape. It is on the high side of the road and faces east. It has a frontage of 20.35 metres and an (approximate) average width and depth, respectively, of 20 metres and 51.2 metres. The area of the subject land is 1015 square metres.
7 Exhibit A3 is a site survey produced by State Surveys. Among other things it depicts spot levels and contours. The highest point on the land is near its rear (western) boundary (RL 105.52). From that point it drops about 6 metres to the front boundary.
8 Before it was first subdivided the land probably formed part of a large north/south sand dune. However, with the construction of the existing dwelling and driveway and the creation of benches the subject land, like most if not all of its neighbours, reveals little about its former slope. By my observation, the surface of the subject land along the southern boundary is most likely to approximate natural ground level.
9 The existing dwelling is sited about 40 metres from the Military Road boundary. It is an old single storey dwelling perched on the high spot of the subject land about 4.5 metres from the rear boundary.

The Development Proposed

10 The plans attached to this decision depict the essential features of the proposal. The table below are extracts from a statistical summary of the proposal prepared by Mr Batge (Exhibit A2);

Dwelling Footprints	Dwg 1 – 94.9m² Dwg 2 – 94.9m² Dwg 3 – 75.8m² Dwg 4 – 75.8m²
Total Building Footprint	341.4m²
Total Floor Area	528m²
Overall Site Coverage	33.3%
Floor Area Ratio	0.51:1
Driveway & Car Parking Coverage	350m² (51.2%)
Setbacks	Street: 8.5m Side Bdys: 1m Rear Dwgs – 6 m grnd 7.65 upper Front Dwgs – 1.4 & 6.2m Rear Bdy: 6m
No. Bedrooms	3 in each dwelling
Car Parking	Dwg 1: 4 spaces Dwg 2: 3 spaces Dwg 3: 2 spaces Dwg 4: 2 spaces
Private Open Space	Dwg 1: 50m² (see below) Dwg 2: 50m² (see below) Dwg 3: 52.8m² (see below) Dwg 4: 52.8m² (see below)

11 During the hearing, there was an agreement between the experts that the private open spaces for Dwellings 1 and 2 are larger than indicated in Exhibit A1 and probably in the region of 60-61 square metres (transcript pp 104-105). Plan PL02C shows the area of the rear yards for Dwellings 3 and 4 to be 56 square metres.
12 The layout of the buildings indicate that some parts of the subject land will be used in common (driveways and gardens). I do not think the experts were in dispute that the averaging method for calculating the site area for each dwelling (as a method of measuring density) was appropriate in the circumstances. Using this method the average area for each site is about 254 square metres.
13 The Appellant is a practising architect. He designed the proposal. Although the plans can be deciphered and all necessary details are included, the way in which they are presented is well short of that which I expect from a person in that profession. It was necessary for several aspects of the proposal to be clarified by Mr Lovrinov in evidence (transcript pp 87-90). I have taken his evidence, in this respect, into account.
14 I have also taken into account the views of the experts about the proper characterisation of the proposal. It comprises two, 2 storey residential flat buildings each having within them two dwellings. However, each pair of dwellings sit side by side, form one building and have independent entry points, private open space and undercover car parking. These features clearly distinguish the proposal from the 1960’s three storey residential flat building immediately to the south.

A Context for Assessment

15 The subject land is depicted on Map HeG/5 in the Plan. It is within the Residential 2A Zone ("the Zone").
16 The nature of existing development within the relevant locality is a consideration in the assessment. In this instance, the relevant locality is defined by those properties that are visible from or have a view of the subject land and those in the vicinity of the subject land that might display elements of the "seaside character" – a term used in Objective 2 for the Zone. Although there is very little between the locality plans prepared by the experts, I think Mr Batge’s is closer to the mark. It includes recently constructed dwellings along Seaview Road and Ozone Street which have the form and overall appearance of dwellings that resemble those recently introduced to many seaside suburbs.
17 For convenience I have below reproduced aspects of Mr Batge’s description of the character of development in the locality:

• The allotments of the southern side of the subject land contains a residential flat building complex of 10 residential units. This building appears to be circa 1960 and is something of a predominant feature within the locality due to its bulk, three storey height, scale, appearance and white colour.
...
• On the allotment adjoining the northern side of the subject land is a large two-storey, cream brick and tile roofed detached dwelling set well forward on its allotment.
...
• Relatively new and large two-storey buildings at numbers 3 and 5 Ozone Street sit high and are readily apparent within parts of the locality.
• Dwellings to the rear of the subject land front Seaview Road, are detached and present their rear yards towards the rear of the subject land.
• Dwellings along the opposite side of Military Road are generally single storey, a mix of styles, age and quality.
• A new ... seaside style dwelling [has been established] at no 9 Tyler Street.
• The eastern side of the locality is on flat terrain, however, the subject land and its neighbours to the north and south slope upwards from Military Road to elevate the dwellings above those on the opposite side of the street.

18 On my observation, the development of the land on the western side of Military Road over several years has resulted in substantial modification to its pre-development topography. With few exceptions the type, age and level of maintenance of the dwellings and the care afforded to the (large) parcels of land on which they sit has resulted in a visual amenity that is mediocre. In the very near vicinity of the subject land the character and amenity of land is influenced by the three storey residential flat building and associated flat roofed carports to the south (10 dwellings on a parcel of land having an area of 1100 square metres), the large two storey detached dwelling to the north and other large dwellings to the south and west. With the exceptions of a few houses with flat/skillion roofs, the dwellings in the locality have gable and hip roof forms.
19 Whether the proposed development adequately complies within the relevant provisions of the Plan is a matter that can be resolved by reference to the following questions:

(a) Is the type of residential development proposed (four, 2 storey residential flat buildings) sufficiently in accord with the desired character for the Zone?
(b) Is the form, siting and density of the proposal sufficiently compatible with policy intent for the Zone once the character and local circumstances are factored into the assessment?

20 For consideration in the assessment are the following definitions from Schedule 1, Development Regulations 1993:

detached dwelling means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation;
dwelling means a building or part of a building used as a self-contained residence;
residential flat building means a single building in which there are two or more dwellings, but does not include a semi-detached dwelling, a row dwelling or a group dwelling;

semi-detached dwelling means a dwelling--

(a) occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and

(b) comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building;

21 The scheme of the Development Plan has a bearing on the assessment. Objectives 1 and 2 and Principles 1 and 2 for the Zone are relevant in determining its intent and purpose:

Objective 1: A zone accommodating primarily single-storey detached and semi-detached dwellings.
Objective 2: Development west of Military Road that enhances the seaside character through appropriate design, roof forms, materials and colours.
1 Development undertaken in the Residential 2A Zone should be, primarily, single-storey detached and semi-detached dwellings on individual allotments; but detached dwellings, row dwellings or semi-detached dwellings, of up to two-storeys, and single-storey residential flat buildings may be suitable in certain parts of the zone. (emphasis added)
2 Development in the Coastal Strip should enhance the seaside character through use of light coloured materials, detailed roof forms, building articulation, use of appropriate landscaping and design and location of vehicle garaging. Roof pitch should be less than 5 degrees or greater than 25 degrees. Where the established character of a locality involves front fences, as part of development of dwellings, front fences should be incorporated. (emphasis added)

22 The terms of Principle 2 are directed to development within part of the area of the Council referred to as the Coastal Strip. The preamble to Council Wide Principles 39 to 134 defines the Coastal Strip as follows:

...

(a) north of Burbridge Road between the coast(1) and Military Road, and also including sites with a frontage to the eastern side of Military Road within the Residential 1, 1A, 2A and 2B Zones; and

(b) south of Burbridge Road with a frontage to Seaview Road.

23 The subject land falls within that part of the Coastal Strip identified in (a) above. Thus when assessing a development, the provisions for the Zone are to be read and applied with reference to the policy intent embodied in Principles 39 to 134 inclusive.
24 Having regard to the key issues in these proceedings the provisions that apply to land in the Coastal Strip of most relevance are Council wide Principles 45, 46, 74, 75, 78, 84, 86, 89, 91, 93, 94, 97 and 102. Also relevant are several Council wide provisions under the heading "Residential Development" such as Principles 15, 16, 19, 22, 23, 25, 30, 31, 32, 33, 34, 35 and 37.

Assessment

Is the type of residential use proposed suitable?

25 I said earlier that the scheme of the Plan is a consideration in determining whether the proposal, properly characterised, is contemplated by the provisions for the Zone. By virtue of it being a proposal for 2 storey residential flat buildings it is clear that it is in conflict with Objective 1 for the Zone. However, the terms of Principle 1 suggests that a range of other types of dwellings may be suitable in certain (unspecified) parts of the Zone. Principle 1, as Mr Barnes observed in his evidence, does not include the form of two storey dwelling proposed. Why this is the case is not immediately obvious. Nevertheless, the provisions for the Zone, at face value, do not speak in favour of the development proposed.
26 Taken alone, this is an obstacle in the way of the Appellants case. However, there are other considerations. Firstly, I observed previously, that each building comprises two, 2 storey dwellings that sit side-by-side and form a single building. Each building has an appearance similar to two, 2 storey semi-detached dwellings or adjoined "apartments". It is true that, in the case of Dwellings 1, 3 and 4, a common driveway is necessary for access and only one of the four dwellings is capable of having an exclusive site with a frontage to a public road. However, in all other respects, each dwelling functions independently and would appear to be of a design and standard of accommodation at the superior end of the design quality spectrum.
27 If Principle 1 sought to exclude dwellings of a type other than those that have an exclusive site with a frontage to a public road (a feature that distinguishes residential flat buildings from detached dwellings and semi-detached dwellings) it would have, by necessity, proscribed single storey residential flat buildings. It does not. It might be that the purpose of Principle 1 is to encourage a range of two storey dwellings in certain parts of the Zone but exclude those in which each self contained residence is stacked one on top of the other. This form of development is often accompanied by detached carport/garages, external staircases, common entry halls or corridors and shared service areas (the way in which No. 123 Military Road is developed is one such example). If that is the intention of the authors of the Plan, the configuration and appearance of the proposed development – which eschews these features – is a consideration when assessing it against Principle 1.
28 Secondly, in determining whether the subject land is situated in a "suitable" part of the Zone (Principle 1) in addition to the prevailing conditions in the locality, the principles that apply to the Coastal Strip are a consideration. Taken together, the principles indicate an intent by the authors of the Plan to differentiate the type of dwelling and building form suitable for this part of the Zone from others in which the terms of Objective 1 would appear to be most applicable (for example on the eastern side of Military Road).
29 The provisions include Principles 45 and 46 which are expressed thus:

45 Allotments within residential areas should meet the projected requirements of people with different housing needs and should enable housing diversity.
46 Residential allotments should have the appropriate area, configuration and dimensions for:

(a) the siting and construction of a dwelling and ancillary outbuildings;
(b) the provision of private open space;
(c) convenient vehicle access and parking; and

(d) the intended use of the allotment or site in accordance with the relevant zone or policy area. (emphasis added)

30 An important feature of Principle 46 is the associated Design Techniques. Design Technique 46.3 contemplates in the Coastal Strip the creation of allotments having an area as low as 240 square metres. This is not a decisive statement about the density suitable in this part of the Zone. However, it is the only (commonly used) measure of density for the Zone to be found in the Plan.
31 It is also of some relevance that the list of conditions for complying development (Principle 3 and Table HeG/1) for the Zone (which, inter alia, establish site areas for detached and semi-detached dwellings and are often a guide for the desired density for the Zone) are specifically exempted from application in respect of a site which "has a frontage to Military Road or is located west of Military Road".
32 Principles 94 and 97 are also relevant. The former establishes a desired building envelope for a "building" in the Coastal Area. Figure HeG/8 suggests that the Plan contemplates buildings of quite substantial height above the natural ground level. Principle 97 establishes the maximum floor area ratio (FAR) of "any residential building" at 0.6:1 and 0.8:1 for, respectively, single storey and greater than single storey buildings. By reference to the definition of FAR in Schedule 1 of the Development Regulations 1993 it is plain to see that the Coastal Strip contemplates a residential building which has a floor area significantly in excess than that proposed. This is a conclusion supported by the exemption from the site coverage limitation in Council wide Principle 19. In so saying I note that the proposal has a site coverage (33.3%) well below that which applies to residential development generally.
33 It would not be a proper approach to cast aside the terms of Objective 1 and Principle 1 when determining the extent to which the type of residential development complies with the Zone provisions. However, distilling the intent of the Zone necessitates the consideration of provisions that apply to the Coastal Strip. These provisions, when read as a whole, contemplate a residential development of a more diverse type and, in all likelihood, at a (higher) intensity than considered by the specific terms of Objective 1 and Principle 1 to be suitable in the rest of the Zone. Having done so I have reached the conclusion that the provisions for the Zone do not proscribe the type and form of dwelling proposed for the subject land. I am reinforced in reaching this conclusion by the topographic features of the subject land and land in the near vicinity and the bulk and appearance of buildings and the amenity of the locality generally.

Is the form, density and siting of the proposal in adequate conformity with the Plan?

34 The evidence of Mr Barnes and Mr Batge covered, in quite some detail, the extent to which the proposal complies with several design related principles. Having considered their evidence, viewed the subject land in the presence of the parties and considered the many principles that apply I have reached the following conclusions in respect of the principal issues of siting and design:
• Overall the design of the roof of each building accords with the rather (unusual) provisions in Principle 2 for the Zone. It is true that the design of the roof for each building does not resemble those illustrated in Design Technique 7(d) nor does it resemble the roof form that predominates the locality. However, the terms of Principle 75 urges that the design elements in paras (a) to (h) inclusive be applied in a compatible way with the provisions for the Zone – in this case the applicable provision is Principle 2. Principle 2 is one statement about the desired character of buildings for the Zone. In any event, the height of each building (influenced as it is by excavation, the respect that the proposal pays to the general slope of the land and modest floor to ceiling height) provides a comfortable relationship with its neighbours (one purpose of Design Technique 75(d)). Plan PL09C (Exhibit A1) clearly indicates the extent of compatibility. The overall shape of the building is, admittedly, "box-like". This outcome is partly a consequence of the choice of roof-pitch available in Principle 2. Nevertheless, from most viewpoints the different planes, setbacks and fenestrations are sufficient to give an appearance of buildings commonly found in seaside suburbs.
• The side and rear setback distances satisfy, to an acceptable extent the relevant provisions. By my calculations the buildings are within the building envelopes depicted in Principle 94. The deficiencies in the rear and side setback distances (Principles 24 and 93) of Dwellings 3 and 4 are minor. In any event, the deleterious visual impact of the upper floor of Dwellings 3 and 4 that might be otherwise occasioned by a reduced setback is diminished to an acceptable extent because of the intended excavation and finished floor level.
• The setback distance from the nearest part of Dwellings 1 and 2 to the street boundary is a matter for consideration under Principles 84 and 85. At 8-8.5 metres the building sits comfortably with its neighbour to the north (itself a large and imposing 2 storey dwelling with a roof ridge height equivalent to the proposal). I acknowledge that when the main face of the wall of the large 3 storey building to the south is taken into account, the proposal is in substantial conflict with Principle 85(a)(ii). However, when the carports in front of the building are taken into account together with the general building line of properties for a distance of 100 metres north and south of the subject land the intent of Principle 84(a) (one purpose of which is enhance the existing streetscape character) is achieved.
• Principle 102 establishes guidelines for open space for detached, semi-detached and row dwellings. To the extent that the guidelines apply to the proposed development, the evidence of both experts suggest each dwelling is deficient by between 2-4 square metres (Dwellings 1 and 2) and 6 square metres (Dwellings 3 and 4). To some extent these deficiencies are compensated for by balconies (which are, nonetheless, not designed precisely in accordance with Principle 103) and the proximity of the site to the River Torrens Linear Park (approximately 140 metres) and the Coastal reserve (approximately 220 metres). Where development enjoys reasonable proximity to such open space and recreational assets, by virtue of Principle 102, a reduced open space allocation for each dwelling as proposed is acceptable. The intent of Principle 37 is met.
• In my view, the provisions of Principle 114 (undercroft parking) do not apply. The proposal simply involves the garages associated with Dwellings 1 and 2 – the floor of which sits 0.53 metres above the adjacent water table – being set into the upward slope of the land.
• The density of the proposed development using the averaging method is within the range contemplated by the design techniques associated with Principle 46. In any event, the size, site coverage (33.3%) and layout of the proposed building satisfies to an adequate extent the intent of that Principle and other relevant provisions such as Principles 15, 25 and 31. The evidence indicates that with minor adjustments, Principle 16 can be adequately addressed.

Conclusions

35 Any conflict between the proposed development and the terms of Objective 1 and Principle 1 for the Zone is resolved by the intended form and largely independent function of each dwelling and building and the scope for the diverse range of housing the Plan intends for land within the Coastal Strip
36 Having reached that conclusion, the principal test then resides in the appropriateness of the proposed development with respect to its form, siting and density. Having considered all of the circumstances I have concluded that while the proposal is "tight" it nonetheless adequately satisfies the relevant design provisions. The configuration, orientation and layout of the various components of each building, the way in which their bulk is concealed by excavation and the respect the proposal pays to the overall topography of the land renders the proposal as a whole a compatible element in the streetscape.
37 I informed the parties of my assessment and conclusions by Memorandum in the above terms and that, subject to the imposition of appropriate conditions, Provisional Development Plan Consent would be granted. At the resumption of the hearing on 1 February 2007, Ms Savva handed to the Court a list of conditions of the Council. Mr Lovrinov was content with them. The conditions are appropriate in the circumstances.
38 The appeal is allowed. An order will be forthcoming granting Provisional Development Plan Consent to Mr Lovrinov to undertake the proposed development described in Development Application No. 252/00797/03 subject to the following conditions:

1. The proposal shall be developed in accordance with the details and approved plans dated August 2005 as amended on 2 November 2006 (Exhibit A1) except where varied by the conditions herein and shall be completed prior to occupation of the proposed development.

2. The side and rear upper storey windows of all dwellings and the front upper level windows of dwellings 3 and 4 shall be screened to 1.7 metres in height as measured above the finished floor level, to prevent overlooking into the private open space and dwellings of adjacent properties. The screening shall be provided prior to the occupation of the proposed development.

3. The front balconies of dwellings 1 and 2 be treated with screening to a height of 1.7 metres on the northern sides. The screening shall prevent overlooking into the private open space and dwellings of adjoining properties. The screening shall be provided prior to the occupation of the proposed development.

4. All stormwater runoff shall be directed away from neighbouring properties.

5. All stormwater from buildings and paved areas shall be disposed of in such a manner that it does not result in the entry of water into a building or affect the stability of a building.

6. Stormwater be disposed of in accordance with details and calculations prepared by MCE Consulting Engineers Pty Ltd, Job No. 1387 (Exhibit R3), except where amended as follows:

(i) a silt trap shall be provided within the drainage system before discharge to the street gutter levels; and

(ii) the driveway levels at the property boundary are to be specified at a minimum of 0.3 metres above the adjacent street gutter level.

7. The proposed landscaping shall be established on the site in accordance with the approved plan prior to the occupation of the site and it shall be maintained and nurtured at all times, with any diseased or dying plants replaced.

8. The landscaping depicted on the approved plans shall be established within three months from the date of occupation of the proposed development and maintained in a good condition at all times.

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1	By development application dated 9 April 2003, Mr G Lovrinov applied for Provisional Development Plan Consent to demolish the existing dwelling on the land at 125 Military Road ("the subject land") and undertake development described by the City of Charles Sturt ("the Council") as follows: "four two-storey dwellings within two separate buildings with associated on-site landscaping, car parking and vehicle access way". The long and seemingly arduous events leading to the decision of the Council to refuse consent are listed on pp 93 and 94 of Exhibit R1. The appeal was initiated. In the 12 month period in which the matter was the subject of a conference held pursuant to s 16 of the Environment Resources and Development Court Act 1993 the parties were not able to reach a settlement. The matter thus proceeded to hearing.
2	The decision notification dated 7 September 2005 (p 100, Exhibit R1), sets out a number of reasons for the Council’s refusal. Its decision was made in respect of the proposed development detailed in a set of plans that were the subject of a series of amendments over the 25 month period between the lodgement of the development application and the decision.
3	The proposed development upon which these proceedings are based were received by the Court as Exhibit A1. The proposal is detailed on 15 separate plans. The plans have been further amended but not to the extent that changes the essential nature of the proposal to which the decision of the Council relates.
4	There is no dispute between the parties that the Development Plan for the City of Henley and Grange dated 16 January 2003 ("the Plan") applies in the assessment of the development proposed. Since the lodgement of the development application, the Plan has been consolidated into the Development Plan for the whole of the City of Charles Sturt. The provisions of the Development Plan that apply to the subject land today play no part in the assessment.
5	In these proceedings Mr D Batge and Mr K Barnes, both qualified and experienced planners, provided expert evidence. Their statements of evidence, respectively, were received as Exhibits A2 and R2. Mr Lovrinov appeared in person. Ms Savva, of counsel, appeared for the Council.

6	No. 125 Military Road is roughly rectangular in shape. It is on the high side of the road and faces east. It has a frontage of 20.35 metres and an (approximate) average width and depth, respectively, of 20 metres and 51.2 metres. The area of the subject land is 1015 square metres.
7	Exhibit A3 is a site survey produced by State Surveys. Among other things it depicts spot levels and contours. The highest point on the land is near its rear (western) boundary (RL 105.52). From that point it drops about 6 metres to the front boundary.
8	Before it was first subdivided the land probably formed part of a large north/south sand dune. However, with the construction of the existing dwelling and driveway and the creation of benches the subject land, like most if not all of its neighbours, reveals little about its former slope. By my observation, the surface of the subject land along the southern boundary is most likely to approximate natural ground level.
9	The existing dwelling is sited about 40 metres from the Military Road boundary. It is an old single storey dwelling perched on the high spot of the subject land about 4.5 metres from the rear boundary.

11	During the hearing, there was an agreement between the experts that the private open spaces for Dwellings 1 and 2 are larger than indicated in Exhibit A1 and probably in the region of 60-61 square metres (transcript pp 104-105). Plan PL02C shows the area of the rear yards for Dwellings 3 and 4 to be 56 square metres.
12	The layout of the buildings indicate that some parts of the subject land will be used in common (driveways and gardens). I do not think the experts were in dispute that the averaging method for calculating the site area for each dwelling (as a method of measuring density) was appropriate in the circumstances. Using this method the average area for each site is about 254 square metres.
13	The Appellant is a practising architect. He designed the proposal. Although the plans can be deciphered and all necessary details are included, the way in which they are presented is well short of that which I expect from a person in that profession. It was necessary for several aspects of the proposal to be clarified by Mr Lovrinov in evidence (transcript pp 87-90). I have taken his evidence, in this respect, into account.
14	I have also taken into account the views of the experts about the proper characterisation of the proposal. It comprises two, 2 storey residential flat buildings each having within them two dwellings. However, each pair of dwellings sit side by side, form one building and have independent entry points, private open space and undercover car parking. These features clearly distinguish the proposal from the 1960’s three storey residential flat building immediately to the south.

15	The subject land is depicted on Map HeG/5 in the Plan. It is within the Residential 2A Zone ("the Zone").
16	The nature of existing development within the relevant locality is a consideration in the assessment. In this instance, the relevant locality is defined by those properties that are visible from or have a view of the subject land and those in the vicinity of the subject land that might display elements of the "seaside character" – a term used in Objective 2 for the Zone. Although there is very little between the locality plans prepared by the experts, I think Mr Batge’s is closer to the mark. It includes recently constructed dwellings along Seaview Road and Ozone Street which have the form and overall appearance of dwellings that resemble those recently introduced to many seaside suburbs.
17	For convenience I have below reproduced aspects of Mr Batge’s description of the character of development in the locality:

23	The subject land falls within that part of the Coastal Strip identified in (a) above. Thus when assessing a development, the provisions for the Zone are to be read and applied with reference to the policy intent embodied in Principles 39 to 134 inclusive.
24	Having regard to the key issues in these proceedings the provisions that apply to land in the Coastal Strip of most relevance are Council wide Principles 45, 46, 74, 75, 78, 84, 86, 89, 91, 93, 94, 97 and 102. Also relevant are several Council wide provisions under the heading "Residential Development" such as Principles 15, 16, 19, 22, 23, 25, 30, 31, 32, 33, 34, 35 and 37.

25	I said earlier that the scheme of the Plan is a consideration in determining whether the proposal, properly characterised, is contemplated by the provisions for the Zone. By virtue of it being a proposal for 2 storey residential flat buildings it is clear that it is in conflict with Objective 1 for the Zone. However, the terms of Principle 1 suggests that a range of other types of dwellings may be suitable in certain (unspecified) parts of the Zone. Principle 1, as Mr Barnes observed in his evidence, does not include the form of two storey dwelling proposed. Why this is the case is not immediately obvious. Nevertheless, the provisions for the Zone, at face value, do not speak in favour of the development proposed.
26	Taken alone, this is an obstacle in the way of the Appellants case. However, there are other considerations. Firstly, I observed previously, that each building comprises two, 2 storey dwellings that sit side-by-side and form a single building. Each building has an appearance similar to two, 2 storey semi-detached dwellings or adjoined "apartments". It is true that, in the case of Dwellings 1, 3 and 4, a common driveway is necessary for access and only one of the four dwellings is capable of having an exclusive site with a frontage to a public road. However, in all other respects, each dwelling functions independently and would appear to be of a design and standard of accommodation at the superior end of the design quality spectrum.
27	If Principle 1 sought to exclude dwellings of a type other than those that have an exclusive site with a frontage to a public road (a feature that distinguishes residential flat buildings from detached dwellings and semi-detached dwellings) it would have, by necessity, proscribed single storey residential flat buildings. It does not. It might be that the purpose of Principle 1 is to encourage a range of two storey dwellings in certain parts of the Zone but exclude those in which each self contained residence is stacked one on top of the other. This form of development is often accompanied by detached carport/garages, external staircases, common entry halls or corridors and shared service areas (the way in which No. 123 Military Road is developed is one such example). If that is the intention of the authors of the Plan, the configuration and appearance of the proposed development – which eschews these features – is a consideration when assessing it against Principle 1.
28	Secondly, in determining whether the subject land is situated in a "suitable" part of the Zone (Principle 1) in addition to the prevailing conditions in the locality, the principles that apply to the Coastal Strip are a consideration. Taken together, the principles indicate an intent by the authors of the Plan to differentiate the type of dwelling and building form suitable for this part of the Zone from others in which the terms of Objective 1 would appear to be most applicable (for example on the eastern side of Military Road).
29	The provisions include Principles 45 and 46 which are expressed thus:

30	An important feature of Principle 46 is the associated Design Techniques. Design Technique 46.3 contemplates in the Coastal Strip the creation of allotments having an area as low as 240 square metres. This is not a decisive statement about the density suitable in this part of the Zone. However, it is the only (commonly used) measure of density for the Zone to be found in the Plan.
31	It is also of some relevance that the list of conditions for complying development (Principle 3 and Table HeG/1) for the Zone (which, inter alia, establish site areas for detached and semi-detached dwellings and are often a guide for the desired density for the Zone) are specifically exempted from application in respect of a site which "has a frontage to Military Road or is located west of Military Road".
32	Principles 94 and 97 are also relevant. The former establishes a desired building envelope for a "building" in the Coastal Area. Figure HeG/8 suggests that the Plan contemplates buildings of quite substantial height above the natural ground level. Principle 97 establishes the maximum floor area ratio (FAR) of "any residential building" at 0.6:1 and 0.8:1 for, respectively, single storey and greater than single storey buildings. By reference to the definition of FAR in Schedule 1 of the Development Regulations 1993 it is plain to see that the Coastal Strip contemplates a residential building which has a floor area significantly in excess than that proposed. This is a conclusion supported by the exemption from the site coverage limitation in Council wide Principle 19. In so saying I note that the proposal has a site coverage (33.3%) well below that which applies to residential development generally.
33	It would not be a proper approach to cast aside the terms of Objective 1 and Principle 1 when determining the extent to which the type of residential development complies with the Zone provisions. However, distilling the intent of the Zone necessitates the consideration of provisions that apply to the Coastal Strip. These provisions, when read as a whole, contemplate a residential development of a more diverse type and, in all likelihood, at a (higher) intensity than considered by the specific terms of Objective 1 and Principle 1 to be suitable in the rest of the Zone. Having done so I have reached the conclusion that the provisions for the Zone do not proscribe the type and form of dwelling proposed for the subject land. I am reinforced in reaching this conclusion by the topographic features of the subject land and land in the near vicinity and the bulk and appearance of buildings and the amenity of the locality generally.

34	The evidence of Mr Barnes and Mr Batge covered, in quite some detail, the extent to which the proposal complies with several design related principles. Having considered their evidence, viewed the subject land in the presence of the parties and considered the many principles that apply I have reached the following conclusions in respect of the principal issues of siting and design:
•	Overall the design of the roof of each building accords with the rather (unusual) provisions in Principle 2 for the Zone. It is true that the design of the roof for each building does not resemble those illustrated in Design Technique 7(d) nor does it resemble the roof form that predominates the locality. However, the terms of Principle 75 urges that the design elements in paras (a) to (h) inclusive be applied in a compatible way with the provisions for the Zone – in this case the applicable provision is Principle 2. Principle 2 is one statement about the desired character of buildings for the Zone. In any event, the height of each building (influenced as it is by excavation, the respect that the proposal pays to the general slope of the land and modest floor to ceiling height) provides a comfortable relationship with its neighbours (one purpose of Design Technique 75(d)). Plan PL09C (Exhibit A1) clearly indicates the extent of compatibility. The overall shape of the building is, admittedly, "box-like". This outcome is partly a consequence of the choice of roof-pitch available in Principle 2. Nevertheless, from most viewpoints the different planes, setbacks and fenestrations are sufficient to give an appearance of buildings commonly found in seaside suburbs.
•	The side and rear setback distances satisfy, to an acceptable extent the relevant provisions. By my calculations the buildings are within the building envelopes depicted in Principle 94. The deficiencies in the rear and side setback distances (Principles 24 and 93) of Dwellings 3 and 4 are minor. In any event, the deleterious visual impact of the upper floor of Dwellings 3 and 4 that might be otherwise occasioned by a reduced setback is diminished to an acceptable extent because of the intended excavation and finished floor level.
•	The setback distance from the nearest part of Dwellings 1 and 2 to the street boundary is a matter for consideration under Principles 84 and 85. At 8-8.5 metres the building sits comfortably with its neighbour to the north (itself a large and imposing 2 storey dwelling with a roof ridge height equivalent to the proposal). I acknowledge that when the main face of the wall of the large 3 storey building to the south is taken into account, the proposal is in substantial conflict with Principle 85(a)(ii). However, when the carports in front of the building are taken into account together with the general building line of properties for a distance of 100 metres north and south of the subject land the intent of Principle 84(a) (one purpose of which is enhance the existing streetscape character) is achieved.
•	Principle 102 establishes guidelines for open space for detached, semi-detached and row dwellings. To the extent that the guidelines apply to the proposed development, the evidence of both experts suggest each dwelling is deficient by between 2-4 square metres (Dwellings 1 and 2) and 6 square metres (Dwellings 3 and 4). To some extent these deficiencies are compensated for by balconies (which are, nonetheless, not designed precisely in accordance with Principle 103) and the proximity of the site to the River Torrens Linear Park (approximately 140 metres) and the Coastal reserve (approximately 220 metres). Where development enjoys reasonable proximity to such open space and recreational assets, by virtue of Principle 102, a reduced open space allocation for each dwelling as proposed is acceptable. The intent of Principle 37 is met.
•	In my view, the provisions of Principle 114 (undercroft parking) do not apply. The proposal simply involves the garages associated with Dwellings 1 and 2 – the floor of which sits 0.53 metres above the adjacent water table – being set into the upward slope of the land.
•	The density of the proposed development using the averaging method is within the range contemplated by the design techniques associated with Principle 46. In any event, the size, site coverage (33.3%) and layout of the proposed building satisfies to an adequate extent the intent of that Principle and other relevant provisions such as Principles 15, 25 and 31. The evidence indicates that with minor adjustments, Principle 16 can be adequately addressed.

35	Any conflict between the proposed development and the terms of Objective 1 and Principle 1 for the Zone is resolved by the intended form and largely independent function of each dwelling and building and the scope for the diverse range of housing the Plan intends for land within the Coastal Strip
36	Having reached that conclusion, the principal test then resides in the appropriateness of the proposed development with respect to its form, siting and density. Having considered all of the circumstances I have concluded that while the proposal is "tight" it nonetheless adequately satisfies the relevant design provisions. The configuration, orientation and layout of the various components of each building, the way in which their bulk is concealed by excavation and the respect the proposal pays to the overall topography of the land renders the proposal as a whole a compatible element in the streetscape.
37	I informed the parties of my assessment and conclusions by Memorandum in the above terms and that, subject to the imposition of appropriate conditions, Provisional Development Plan Consent would be granted. At the resumption of the hearing on 1 February 2007, Ms Savva handed to the Court a list of conditions of the Council. Mr Lovrinov was content with them. The conditions are appropriate in the circumstances.
38	The appeal is allowed. An order will be forthcoming granting Provisional Development Plan Consent to Mr Lovrinov to undertake the proposed development described in Development Application No. 252/00797/03 subject to the following conditions: