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ALLEN v DISTRICT COUNCIL OF ROBE [2007] SAERDC 39 (30 July 2007)

Last Updated: 1 August 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.

ALLEN v DISTRICT COUNCIL OF ROBE

[2007] SAERDC 39

Judgment of Commissioner Green

30 July 2007

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refusal by the Council - semi-detached dwellings - Historic (Conservation) Zone - dwelling density - assessment generally limited to that issue - rationale behind dwelling density guidelines; amenity, character and infrastructure implications considered - limited case by the Council - proposal sufficiently meets Development Plan - appeal allowed - decision of the Council reversed - conditional Provisional Development Plan Consent granted.
Development Act 1993; Development Regulations 1993, referred to.
SA Housing Trust v Development Assessment Commission & Corporation of the City of Marion (1994) 63 SASR 35, considered.

ALLEN v DISTRICT COUNCIL OF ROBE
[2007] SAERDC 39

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an applicant appeal against the decision of the District Council of Robe (the Council hereafter) made under delegation by the Development Assessment Panel (DAP) established under the Development Act 1993, to refuse to grant Provisional Development Plan Consent to Development Application No. 822/0160/07 made under the Act, for semi-detached dwellings at Robe.
2 The sole reason given for the Council refusal was:

1. That the proposed allotment sizes will be at substantial variance with Principle 35 of the Historic (Conservation) Zone Residential Policy Area of the District Council of Robe’s Development Plan.

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

Registration date of application:	1 March 2007
Subject land address:	10A Elizabeth Street, Robe (Allotment 23, DP 65468, CT Vol.5930 Fol.333)
Existing use:	Vacant residential allotment
Proposal:	Erect single storey semi-detached dwellings with decks, garaging, fencing and landscaping
Relevant authority:	District Council of Robe
Relevant/appropriate Development Plan:	Robe (DC) consolidated version 11 January 2007
Relevant Area/Zone/Policy Area:	Historic/Historic (Conservation)/Residential – MAP Ro/1 (Overlay 1) (Enlargement A), Ro/10 and Ro/16
Date of decision:	3 April 2007
Appeal lodged:	5 April 2007
Conference concluded:	15 May 2007

4 The Court viewed the subject land and the locality on the morning of Thursday, 5 July 2007 in the presence of the parties.
5 The appellant called only Mr M Richardson, a qualified consulting town planner who advised the Council on the application, under subpoena (with respect to Exhibit R1, pp.7-8 and Exhibit A2) and not required to produce a statement of evidence of his opinion given his appearance on that basis. As an aside, and for the Council’s benefit, it is not unusual for either an officer of a Council or other persons providing reports, recommendations and advice to a Council (its Development Assessment Panel), to be summoned to give evidence before this Court. The input of Mr R Wood, the Council’s heritage adviser is also noted. The only witness in the respondent Council’s case was Mr W Peden, a layperson, Mayor of the Council and, I understand, a member of the Development Assessment Panel.
6 I advised the respondent’s advocate, Mr Hender, chairperson of the DAP and a farmer, that Mr Peden could not speak on behalf of the Council as a body, or the Development Assessment Panel, and could only give evidence as a layperson and about facts or experiences known to him. He raised some concerns about possible infrastructure ramifications of approval to the application and a so-called precedent effect for other development applications.
7 The Court was advised on the view by the Council representatives, that whilst it had received copy documents prepared by a legal firm, and a statement of expert evidence from a qualified town planner/architect, some days before the hearing as required by the Court Rules, all perused by me, it would not be represented by that or any other legal firm, nor would it be calling the expert due to the financial difficulties and priorities of the Council. The hearing proceeded accordingly, however, that position is most unfortunate. The statement received from the expert is not relied upon but in effect became contextual material of which both parties and the Court were aware.

The Subject Land

8 The subject land is a rectangular east-west orientated allotment on the western side of Elizabeth Street, south of Lord Syleham Street, two allotments removed from the golf course to the south (forming a dead-end to Elizabeth Street). It has a frontage of 18.97 metres to Elizabeth Street, depth of 32.94 metres and site area of approximately 625 square metres. It sits slightly below road level and is relatively level with some filling thereon. It has no trees or other features of note.

The Proposal

9 The development proposal before the Court was the subject of minor amendments to plans and in effect comprises Exhibit A1 (floor plan and site plan, sheets 1 and 3 of 3); Exhibit A4 (elevations, sheet 3 of 7); and Exhibit A5 (elevations, sheet 2 of 7). Exhibit A5 includes minor amendments to the front elevations following the recommendations of Mr Wood, heritage adviser to the Council. Exhibit A4 comprising side and rear elevations is new information but not representing any amendment. It simply completes the picture of the development and should have been available to the Council when it made its decision.
10 Counsel for the appellant also indicated during the view and the hearing that his clients were prepared to amend the siting of the building (by increasing its front street setback by 1 metre and reducing its rear boundary setback by the same amount), should that be required by the Court (vide Historic (Conservation) Zone, Principle 9(a)(c)). The amendments in Exhibit A4 and information in Exhibit A5 with or without the further siting amendment, not before the DAP for the Council, are minor and can be properly considered and determined by the Court arising from the hearing.
11 Each dwelling is the same in terms of floor area, layout and elevations, though of course, one is a mirror image of the other. Each dwelling was calculated by the designer to have a total floor area of approximately 98 square metres, garage of approximately 23.6 square metres, front deck of some 14 square metres and rear private open space (with 1.8 metre high Colorbond fencing to external side rear and presumably internal boundaries), of some 133 square metres. Site coverage for the purposes of general Principle of Development Control 55(a) was calculated by the designer as 38.9% (compared to the guide of 50%) and private open space for the purposes of general Principle 55(b) calculated at 133 square metres compared to the guide of 20% of the site area, namely 62.48 square metres.
12 The front setback of the main face of the dwellings is 5.0 metres and to the garage on each side 6.5 metres. A low deck projects forward of each dwelling into and becoming part of the front landscaped area. The dwellings are sited 10.76 metres from the rear boundary and 3.49 metres from the side boundaries, except for the garages (2.6 metre high walls by 6.6 metres long) that are located on the southern and northern boundaries (vide general Principle 43 and Designed Technique 43.1 and with some regard to general Principles 39 and 40/41, with the latter two not expressly applicable to the Historic (Conservation) Zone).

The Locality

13 Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal affects, to a notable degree, the locality boundary in this matter is to be based on a combination of visual, character perception and traffic generation factors. There is no defined locality before me from the experts or in any of the reports. I define the locality to extend as follows:

• to the south beyond four residential allotments into the golf course open space for some 100 metres;
• to the north beyond Lord Syleham Street to a low ridge and the corner of Elizabeth and George Streets for some 150 metres;
• to the west up to Davenport Street, a distance of some 70-100 metres; and
• to the east along Lord Syleham Street up to its intersection with Union Street, a distance of some 150 metres.

When put to Mr Richardson, he did not disagree with that definition.

14 Except for the golf course in the Special Use Zone, the balance of the locality is within the Historic (Conservation) Zone and the Residential Policy Area, and except for a police station on Lord Syleham Street to the east and the golf course, it is used entirely for residential purposes, including I surmise, more intensively during holiday periods.
15 Most buildings are single storey (except for the size of the police station and two-storey semi-detached dwellings adjoining it to the east), and detached dwelling residential type, although there are exceptions including three row dwellings/residential flats on the eastern periphery; further semi-detached dwellings (with a third dwelling apparently approved to attach to them) on the north-western corner of Elizabeth and Lord Syleham Streets; three older residential flat/row dwellings at the south-western corner of Elizabeth and George Streets; and two units on the eastern side of Davenport Street adjoining the golf course. There are also a few vacant allotments.
16 Age and condition of buildings are very mixed from new and good, to old and fair to poor, and a number have intermediate characteristics. Dwellings to the north of Lord Syleham Street are mostly older with "heritage", cottage characteristics with masonry walling and pitched, generally corrugated galvanised iron roofing (including five with Local Heritage Place status – Fig Ro(Hlt)/5), whilst those south of that road are not old and do not exhibit such characteristics.
17 Front and side building setbacks are most varied ranging from close to generous (vide Historic (Conservation) Zone Principle 9). Site areas per dwelling are mostly in the low-density range, probably greater than 500 square metres, however the average or actual site areas per dwelling (refer Historic (Conservation) Zone Principle 35), of the medium density development appears to be in the 300-450 square metres range. Site widths for dwellings are mostly broad to generous, however for the new two-storey semi-detached dwelling development at 20A/B Lord Syleham Street, it was observed to be in the order of 8 metres per dwelling (confirmed at 7.8 metres by Exhibit A3). These dwellings also have no setbacks to side boundaries.
18 Amenity levels for residential purposes are relatively high due to the coastal/golf course proximity and ambience but marred by the appearance and condition of several dwellings, outbuildings (including sheds) and fencing.

The Relevant Development Plan Provisions

19 I have noted certain provisions referred to by counsel, the advocate and the witnesses and I find the following to be the provisions in the relevant/appropriate Development Plan of assistance to an assessment of the proposal focusing on the key issue in dispute:

ROBE (DC) (General hereafter)
Objectives: 4, 15, 16, 18, 22 and 32; and
Principles of development control: 1, 11, 15, 22, 23, 45, 74, 82-85, and 169.

Historic (Conservation) Zone (H(C)Z hereafter)
Desired Character Statement: Para 1, sentence 1; para 3, sentence 1 and para 5, sentence 2.
Objectives: 1, 3 and 5; and
Principles of development control: 8, 9, 10, 37 and 38; and
Residential Policy Area
Principles of development control: 34, 35 and 36.

20 The overall structure of zones envisaging residential development in Robe has also been examined and the following noted:

• Residential Zone (RZ hereafter) the Desired Character Statement, Objectives 1, 2 and 5, and Principles 3 and 13 (site area per dwelling also 400 square metres);

• Residential (Coastal) (Frenchman Bay) Zone Principle 2(c) – site area per dwelling of 500 square metres; and
• Commercial (Lake Butler) Zone around the marina and Principle 9(i) - site area per dwelling of 350 square metres.

21 In terms of processing, the development was categorised by the Council as a Category 1 development, no public notification undertaken and there appeared to be no requirements for statutory referrals.

Approach to Assessment

22 Section 88(2)(a) of the Act encourages the Court to "only seek to deal with and resolve those issues in dispute between the parties" and should not consider any aspect of the decision and the assessment that is not being challenged. Despite there being some minor deficiencies acknowledged by Mr Richardson, such as the internal layout and direct access to private open space, whether building design maximises access to solar energy and a northern orientation and its degree of roof-scape compatibility, and notwithstanding the discretion available to the Court provided by s 88(2)(b) to hear the whole matter and all issues de novo, afresh, I decline to do so as those other issues are minor, not significant and accordingly a more detailed approach is not justified or required to determine it.
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 appropriate/relevant 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 must be assessed, including on appeal, if all aspects and issues are to be considered and heard de novo (s 88(2)(b)). However, there may be an intent that only the relevant provisions are to be considered if the matter is limited to those issues in dispute (s 88 (2)(a)), which is still heard de novo. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters
24 In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Plan guidelines, weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the H(C)Z and tested in the specific site and locality context. The 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. 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.

Planning Assessment

25 This assessment focuses on the single issue in dispute, raised by the Council as its reason for refusal of the application, namely dwelling density expressed as "site area per dwelling of any type". The case of the respondent Council was that it took no objection with the design, layout and appearance of the proposed development. I have over-viewed those aspects and agree that they are not contentious and sufficiently meet the Plan.
26 The relevant guide in the H(C)Z Principle 35 is that site area per dwelling of any type "should not be less than 400 square metres ...". The proposal has a site area per dwelling of some 312.48 square metres.
27 As context, and by size, the other main zone for residential development in Robe, the RZ, also has the same 400 square metres guide, whilst for residential development in other zones as noted above, it is either 350 or 500 square metres. I take account of the context of that zoning structure and density differentiation.
28 Apparently, on the imprecise submission and evidence in the Council’s case, prior to the Development Plan amendment of 3 November 2005, different guidelines applied to dwelling densities, which it was implied, may explain certain medium density residential development "standards" in the locality and elsewhere in Robe. That is of little relevance now, except in recognition of the particular density and character of development in the relevant locality (as defined), at present, for assessment of this matter.
29 It must also be remembered that a guideline clause such as H(C)Z Principle 35 is not mandatory and as a matter of law (South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35 at p.38) no one principle such as Principle 35, is necessarily more important than other standards and objectives in the Plan and it is a matter to be determined on the facts of each case. Nevertheless the dwelling density factor is acknowledged as an important "building block" in the composition of the overall character and amenity of a developed township (or urban) area, but it is one only of a suite or range of guidelines, standards and characteristics that go to make up the overall picture.
30 It is important to consider the general planning rationale behind the site area per dwelling guideline and not just the numerical standard. It is likely, given the thrust of all of the Development Plan guidelines for Robe, particularly the Desired Character Statement for the H(C)Z and other zones, that the primary emphasis is on protection-preservation of historic character (and enhancement thereof), and on visual amenity – that is of vistas, streetscapes, localities and zones. Another rationale potentially in the minds of the authors of the Plan, though I agree with counsel for the appellant, not expressed in the Plan, may have been implications for infrastructure – such as water supply, effluent treatment, stormwater management from covered/paved areas, electricity provision, traffic and parking management – as a result of additional households and population implicit in the nominated dwelling density figures.
31 The appellants’ case, through the evidence of Mr Richardson, including his oral evidence and examination before the Court, the other documentary material before the Council and the Court, referred to above, and submissions, was that both the locality character context and the specific design features of the proposal (single storey, low coverage, adequate front-side-rear setbacks – with the Court finding no requirement to increase front setbacks given adjoining building setbacks and relevant guidelines; small built form scale; building details including roof/parapet design and detailing, and materials/colours), are sufficient to offset the smaller site areas per dwelling. On that basis the overall visual amenity, "fit" between existing dwellings, relationship-compatibility with Local Heritage Places (though somewhat removed to the north), maintenance of and perceptions of impact upon historic character (including the desired single storey, small-scale form), are such that the intent and spirit of the H(C)Z and the Plan as a whole are met and consent is therefore warranted.
32 Nothing of consequence was put before the Court in the respondent’s case about amenity and character implications or impacts arising from the development proposal.
33 On the consideration of a potential further rationale of the site area per dwelling guide for infrastructure planning and service delivery, and whilst Mr Peden and the Council’s advocate echoed the issue, once raised from the Bench, they provided no evidence of a factual nature or of substance validating such a concern. Given that, and the absence of a link or reference to such consideration in the Development Plan and as submitted by the appellant, I cannot raise that potential concern to the heights that dictates or justifies a refusal to the specific application, and notwithstanding possible arguments of incremental and growing impacts on infrastructure planning, if that approach was to be perpetuated.
34 Whilst the degree of variance to the guideline in Zone Principle 35 is substantial (some 20% less) and is of significance, acknowledged by Mr Richardson, and being even less than envisaged in the more intensely developed area around the marina (350 square metres per dwelling envisaged), it is appropriate with assessment of every application to weigh up all relevant factors, including the factors in support - compliance with Plan guidelines (including for example a building envelope very close to meeting H(C)Z Principle 36, should a land division proceed in due course to place each dwelling on a separate Torrens Title) and factors against, with variances to the Plan guidelines.
35 The potential importance of this decision to future residential development density in Robe (arguably whether in the H(C)Z or the RZ), and to subsequent assessments under the current relevant Development Plan regime, is acknowledged. That is, consideration of the outcomes of a "flow-on effect" for future development in the locality in particular, for current allotment sizes of between 620-800 square metres and widths of 18-20 metres. There is some risk of that, however, on the evidence, the specific design and on my general assessment, such variance is one factor only going to make up the character and amenity of the whole, and as a whole, the proposed development sufficiently accords with that envisaged and the intent of the H(C)Z, applied and weighed up in the specific locality context.
36 The lack of a thorough, professional case or expert evidence for the Council, left the Court with no evidence to warrant rejection of the application, confirmed by my general assessment. Any concern about the implications of greater dwelling density upon infrastructure planning and provision (in the near or more distant future), was not made out or substantiated in the Council’s case.

Conclusions

37 Pursuant to s 88(2)(a) the Court generally limited the appeal and assessment to the issues raised in dispute between the parties. However in doing so, I have considered in a general sense, the whole development and all relevant issues and Development Plan criteria and the Plan as a whole, as if the Court had proceeded on the basis of s 88(2)(b). The variance to H(C)Z Principle 35 is acknowledged, however on the evidence, what I saw on the view, from my assessment and a consideration of the relevant Development Plan provisions and all relevant matters, I find that on balance the development proposal warrants conditional Provisional Development Plan Consent. The conditions recommended in the report to the DAP are incorporated together with a limited number of other standard conditions.

Decision

38 The appeal is allowed, the decision of the Council reversed. Provisional Development Plan Consent is granted to DA No. 822/016/07 subject to compliance with the following conditions:

1. The development shall be undertaken in accord with amended proposal plans comprising as a group, sheets 1 and 3 of 3, Rev.D (marked Exhibit A1), sheet 3 of 7, Rev.F (marked Exhibit A4), and sheet 2 of 7, Rev.F (marked Exhibit A5), except where varied by any conditions of this consent or as may be further approved by the Council as a minor variation prior to Development Approval.

2. The external surfaces of the building shall be finished in colours, which, in the reasonable opinion of the Council, harmonise and blend with the natural landscape and are of low reflectivity. If such materials are not pre-coloured, they shall be colour finished by painting or other means within 6 months of completion of the development.

3. The front of the subject land shall be landscaped with suitable species, in accord with further landscaping detail to be submitted to and approved by the Council prior to the issue of Building Rules Consent for the development proposal. Such planting shall be implemented in the first available planting season after completion of all building work and shall be maintained in good health, or plants that may become diseased or die, promptly replaced, all to the reasonable satisfaction of the Council.

4. The crossovers and driveways to each garage shall be paved or otherwise surfaced, drained and constructed to the reasonable satisfaction of the Council, prior to occupation of either dwelling.

5. Approval shall be obtained from the District Council of Robe (pursuant to Waste Control Regulations) for the plumbing and drainage system and connected to the Septic Tank Effluent Drainage Scheme (STEDS), prior to the issue of the Development Approval.

39 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 Robe (the Council hereafter) made under delegation by the Development Assessment Panel (DAP) established under the Development Act 1993, to refuse to grant Provisional Development Plan Consent to Development Application No. 822/0160/07 made under the Act, for semi-detached dwellings at Robe.
2	The sole reason given for the Council refusal was:

4	The Court viewed the subject land and the locality on the morning of Thursday, 5 July 2007 in the presence of the parties.
5	The appellant called only Mr M Richardson, a qualified consulting town planner who advised the Council on the application, under subpoena (with respect to Exhibit R1, pp.7-8 and Exhibit A2) and not required to produce a statement of evidence of his opinion given his appearance on that basis. As an aside, and for the Council’s benefit, it is not unusual for either an officer of a Council or other persons providing reports, recommendations and advice to a Council (its Development Assessment Panel), to be summoned to give evidence before this Court. The input of Mr R Wood, the Council’s heritage adviser is also noted. The only witness in the respondent Council’s case was Mr W Peden, a layperson, Mayor of the Council and, I understand, a member of the Development Assessment Panel.
6	I advised the respondent’s advocate, Mr Hender, chairperson of the DAP and a farmer, that Mr Peden could not speak on behalf of the Council as a body, or the Development Assessment Panel, and could only give evidence as a layperson and about facts or experiences known to him. He raised some concerns about possible infrastructure ramifications of approval to the application and a so-called precedent effect for other development applications.
7	The Court was advised on the view by the Council representatives, that whilst it had received copy documents prepared by a legal firm, and a statement of expert evidence from a qualified town planner/architect, some days before the hearing as required by the Court Rules, all perused by me, it would not be represented by that or any other legal firm, nor would it be calling the expert due to the financial difficulties and priorities of the Council. The hearing proceeded accordingly, however, that position is most unfortunate. The statement received from the expert is not relied upon but in effect became contextual material of which both parties and the Court were aware.

9	The development proposal before the Court was the subject of minor amendments to plans and in effect comprises Exhibit A1 (floor plan and site plan, sheets 1 and 3 of 3); Exhibit A4 (elevations, sheet 3 of 7); and Exhibit A5 (elevations, sheet 2 of 7). Exhibit A5 includes minor amendments to the front elevations following the recommendations of Mr Wood, heritage adviser to the Council. Exhibit A4 comprising side and rear elevations is new information but not representing any amendment. It simply completes the picture of the development and should have been available to the Council when it made its decision.
10	Counsel for the appellant also indicated during the view and the hearing that his clients were prepared to amend the siting of the building (by increasing its front street setback by 1 metre and reducing its rear boundary setback by the same amount), should that be required by the Court (vide Historic (Conservation) Zone, Principle 9(a)(c)). The amendments in Exhibit A4 and information in Exhibit A5 with or without the further siting amendment, not before the DAP for the Council, are minor and can be properly considered and determined by the Court arising from the hearing.
11	Each dwelling is the same in terms of floor area, layout and elevations, though of course, one is a mirror image of the other. Each dwelling was calculated by the designer to have a total floor area of approximately 98 square metres, garage of approximately 23.6 square metres, front deck of some 14 square metres and rear private open space (with 1.8 metre high Colorbond fencing to external side rear and presumably internal boundaries), of some 133 square metres. Site coverage for the purposes of general Principle of Development Control 55(a) was calculated by the designer as 38.9% (compared to the guide of 50%) and private open space for the purposes of general Principle 55(b) calculated at 133 square metres compared to the guide of 20% of the site area, namely 62.48 square metres.
12	The front setback of the main face of the dwellings is 5.0 metres and to the garage on each side 6.5 metres. A low deck projects forward of each dwelling into and becoming part of the front landscaped area. The dwellings are sited 10.76 metres from the rear boundary and 3.49 metres from the side boundaries, except for the garages (2.6 metre high walls by 6.6 metres long) that are located on the southern and northern boundaries (vide general Principle 43 and Designed Technique 43.1 and with some regard to general Principles 39 and 40/41, with the latter two not expressly applicable to the Historic (Conservation) Zone).

14	Except for the golf course in the Special Use Zone, the balance of the locality is within the Historic (Conservation) Zone and the Residential Policy Area, and except for a police station on Lord Syleham Street to the east and the golf course, it is used entirely for residential purposes, including I surmise, more intensively during holiday periods.
15	Most buildings are single storey (except for the size of the police station and two-storey semi-detached dwellings adjoining it to the east), and detached dwelling residential type, although there are exceptions including three row dwellings/residential flats on the eastern periphery; further semi-detached dwellings (with a third dwelling apparently approved to attach to them) on the north-western corner of Elizabeth and Lord Syleham Streets; three older residential flat/row dwellings at the south-western corner of Elizabeth and George Streets; and two units on the eastern side of Davenport Street adjoining the golf course. There are also a few vacant allotments.
16	Age and condition of buildings are very mixed from new and good, to old and fair to poor, and a number have intermediate characteristics. Dwellings to the north of Lord Syleham Street are mostly older with "heritage", cottage characteristics with masonry walling and pitched, generally corrugated galvanised iron roofing (including five with Local Heritage Place status – Fig Ro(Hlt)/5), whilst those south of that road are not old and do not exhibit such characteristics.
17	Front and side building setbacks are most varied ranging from close to generous (vide Historic (Conservation) Zone Principle 9). Site areas per dwelling are mostly in the low-density range, probably greater than 500 square metres, however the average or actual site areas per dwelling (refer Historic (Conservation) Zone Principle 35), of the medium density development appears to be in the 300-450 square metres range. Site widths for dwellings are mostly broad to generous, however for the new two-storey semi-detached dwelling development at 20A/B Lord Syleham Street, it was observed to be in the order of 8 metres per dwelling (confirmed at 7.8 metres by Exhibit A3). These dwellings also have no setbacks to side boundaries.
18	Amenity levels for residential purposes are relatively high due to the coastal/golf course proximity and ambience but marred by the appearance and condition of several dwellings, outbuildings (including sheds) and fencing.

•	Residential (Coastal) (Frenchman Bay) Zone Principle 2(c) – site area per dwelling of 500 square metres; and
•	Commercial (Lake Butler) Zone around the marina and Principle 9(i) - site area per dwelling of 350 square metres.

22	Section 88(2)(a) of the Act encourages the Court to "only seek to deal with and resolve those issues in dispute between the parties" and should not consider any aspect of the decision and the assessment that is not being challenged. Despite there being some minor deficiencies acknowledged by Mr Richardson, such as the internal layout and direct access to private open space, whether building design maximises access to solar energy and a northern orientation and its degree of roof-scape compatibility, and notwithstanding the discretion available to the Court provided by s 88(2)(b) to hear the whole matter and all issues de novo, afresh, I decline to do so as those other issues are minor, not significant and accordingly a more detailed approach is not justified or required to determine it.
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 appropriate/relevant 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 must be assessed, including on appeal, if all aspects and issues are to be considered and heard de novo (s 88(2)(b)). However, there may be an intent that only the relevant provisions are to be considered if the matter is limited to those issues in dispute (s 88 (2)(a)), which is still heard de novo. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters
24	In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Plan guidelines, weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the H(C)Z and tested in the specific site and locality context. The 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. 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.

25	This assessment focuses on the single issue in dispute, raised by the Council as its reason for refusal of the application, namely dwelling density expressed as "site area per dwelling of any type". The case of the respondent Council was that it took no objection with the design, layout and appearance of the proposed development. I have over-viewed those aspects and agree that they are not contentious and sufficiently meet the Plan.
26	The relevant guide in the H(C)Z Principle 35 is that site area per dwelling of any type "should not be less than 400 square metres ...". The proposal has a site area per dwelling of some 312.48 square metres.
27	As context, and by size, the other main zone for residential development in Robe, the RZ, also has the same 400 square metres guide, whilst for residential development in other zones as noted above, it is either 350 or 500 square metres. I take account of the context of that zoning structure and density differentiation.
28	Apparently, on the imprecise submission and evidence in the Council’s case, prior to the Development Plan amendment of 3 November 2005, different guidelines applied to dwelling densities, which it was implied, may explain certain medium density residential development "standards" in the locality and elsewhere in Robe. That is of little relevance now, except in recognition of the particular density and character of development in the relevant locality (as defined), at present, for assessment of this matter.
29	It must also be remembered that a guideline clause such as H(C)Z Principle 35 is not mandatory and as a matter of law (South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35 at p.38) no one principle such as Principle 35, is necessarily more important than other standards and objectives in the Plan and it is a matter to be determined on the facts of each case. Nevertheless the dwelling density factor is acknowledged as an important "building block" in the composition of the overall character and amenity of a developed township (or urban) area, but it is one only of a suite or range of guidelines, standards and characteristics that go to make up the overall picture.
30	It is important to consider the general planning rationale behind the site area per dwelling guideline and not just the numerical standard. It is likely, given the thrust of all of the Development Plan guidelines for Robe, particularly the Desired Character Statement for the H(C)Z and other zones, that the primary emphasis is on protection-preservation of historic character (and enhancement thereof), and on visual amenity – that is of vistas, streetscapes, localities and zones. Another rationale potentially in the minds of the authors of the Plan, though I agree with counsel for the appellant, not expressed in the Plan, may have been implications for infrastructure – such as water supply, effluent treatment, stormwater management from covered/paved areas, electricity provision, traffic and parking management – as a result of additional households and population implicit in the nominated dwelling density figures.
31	The appellants’ case, through the evidence of Mr Richardson, including his oral evidence and examination before the Court, the other documentary material before the Council and the Court, referred to above, and submissions, was that both the locality character context and the specific design features of the proposal (single storey, low coverage, adequate front-side-rear setbacks – with the Court finding no requirement to increase front setbacks given adjoining building setbacks and relevant guidelines; small built form scale; building details including roof/parapet design and detailing, and materials/colours), are sufficient to offset the smaller site areas per dwelling. On that basis the overall visual amenity, "fit" between existing dwellings, relationship-compatibility with Local Heritage Places (though somewhat removed to the north), maintenance of and perceptions of impact upon historic character (including the desired single storey, small-scale form), are such that the intent and spirit of the H(C)Z and the Plan as a whole are met and consent is therefore warranted.
32	Nothing of consequence was put before the Court in the respondent’s case about amenity and character implications or impacts arising from the development proposal.
33	On the consideration of a potential further rationale of the site area per dwelling guide for infrastructure planning and service delivery, and whilst Mr Peden and the Council’s advocate echoed the issue, once raised from the Bench, they provided no evidence of a factual nature or of substance validating such a concern. Given that, and the absence of a link or reference to such consideration in the Development Plan and as submitted by the appellant, I cannot raise that potential concern to the heights that dictates or justifies a refusal to the specific application, and notwithstanding possible arguments of incremental and growing impacts on infrastructure planning, if that approach was to be perpetuated.
34	Whilst the degree of variance to the guideline in Zone Principle 35 is substantial (some 20% less) and is of significance, acknowledged by Mr Richardson, and being even less than envisaged in the more intensely developed area around the marina (350 square metres per dwelling envisaged), it is appropriate with assessment of every application to weigh up all relevant factors, including the factors in support - compliance with Plan guidelines (including for example a building envelope very close to meeting H(C)Z Principle 36, should a land division proceed in due course to place each dwelling on a separate Torrens Title) and factors against, with variances to the Plan guidelines.
35	The potential importance of this decision to future residential development density in Robe (arguably whether in the H(C)Z or the RZ), and to subsequent assessments under the current relevant Development Plan regime, is acknowledged. That is, consideration of the outcomes of a "flow-on effect" for future development in the locality in particular, for current allotment sizes of between 620-800 square metres and widths of 18-20 metres. There is some risk of that, however, on the evidence, the specific design and on my general assessment, such variance is one factor only going to make up the character and amenity of the whole, and as a whole, the proposed development sufficiently accords with that envisaged and the intent of the H(C)Z, applied and weighed up in the specific locality context.
36	The lack of a thorough, professional case or expert evidence for the Council, left the Court with no evidence to warrant rejection of the application, confirmed by my general assessment. Any concern about the implications of greater dwelling density upon infrastructure planning and provision (in the near or more distant future), was not made out or substantiated in the Council’s case.