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KENTLEY PTY LTD v CITY OF MITCHAM [2007] SAERDC 49 (5 October 2007)

Last Updated: 9 October 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.

KENTLEY PTY LTD v CITY OF MITCHAM

[2007] SAERDC 49

Judgment of Commissioner Hamnett

5 October 2007

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for construction of two two-storey semi-detached dwellings – refused by Council – appeal – whether proposal consistent with desired character of the relevant zone - extent of cut and fill – prominence of site – Provisional Development Plan Consent granted, subject to conditions.
Development Act 1993, referred to.
City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244; Ottewill v City of Mitcham ERDC 345 of 1997; City of Mitcham v Ansaar & Anor [2006] SASC 78; Daleport Holdings Pty Ltd v Brooks & Ors [2007] SASC 260, considered.

KENTLEY PTY LTD v CITY OF MITCHAM
[2007] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against a decision by the City of Mitcham ("the Council") to refuse an application by Faye Hambour to construct two semi-detached dwellings on land at 11 Pages Road, Mitcham. The subject land lies within the Residential (Foothills) Zone as defined in the Mitcham (City) Development Plan, as consolidated on 22 September 2005. At its meeting on 7 March 2007 the Council’s Development Assessment Panel refused the application, on the grounds that "the bulk, scale, style and form (of the) proposed development is contrary to the desired character of the zone and locality in which the land is situated" and that the proposal was also contrary to several specified provisions of the Mitcham (City) Development Plan. Following a conference of the parties on 3 May 2007 an amended proposal was prepared and considered at a meeting of the Development Assessment Panel on 4 July 2007 but this was also found to be unacceptable by the panel and the matter proceeded to a hearing.
2 At the start of the hearing the Court was informed that, in the period since the appeal had been lodged, Ms Hambour had sold the subject land and an application was made to amend the name of the Appellant to that of the purchaser, Kentley Pty Ltd. No objection was raised to this and the name of the Appellant was amended accordingly.
3 The Appellant was represented by Mr J Hilditch, of counsel. Mr G Manos, of counsel, appeared for the Council. The Court heard expert evidence from three qualified town planning consultants, Mr. J Smith, Mr J Outhred and Mr P Brunning. The Court conducted a view of the subject land and its locality immediately prior to the hearing.

The Subject Land

4 The subject land is described in Certificate of Title Register Book, Volume 5281, Folio 286 as Allotment 171, Filed Plan 15754 in the area named Mitcham, Hundred of Adelaide. It is situated at 11 Pages Road, Mitcham and comprises a corner allotment of rectangular shape, with a small corner cut-off at the corner of Pages Road and Hoggs Road. The frontage to Pages Road, including the corner cut-off, is 25.65 metres. There is a longer frontage of 41.74 metres to Hoggs Road. The subject land has an area of approximately 1087m². The land slopes generally from southeast to northwest, with the southeastern corner of the allotment being some 6.7 metres higher than the northwest corner.
5 The subject land is currently occupied by a detached dwelling with a second storey located in the roof space. There is also a carport and a small shed on the land at present. Excavation on the eastern side has allowed the existing dwelling to be set into the slope and a number of low retaining walls indicate the earlier levelling of several sections of the land. Above the retaining wall on the northern boundary, and also along the eastern boundary, there is a wire fence, partly hidden by climbing plants. On the western boundary of the allotment on Pages Road there are three River Red Gums (Eucalyptus camaldulensis). All three are significant trees and are to be retained as part of the proposed development.

The Locality

6 Each of the three expert planning witnesses took a different approach to the definition of the locality. Mr Outhred identified a fairly extensive locality bounded by Church Road to the north, Carrick Hill Drive to the east and Brownhill Creek Road to the west and south. In determining the potential impact of the proposed development, Mr Outhred had regard to properties within an area extending up to 200 metres from the subject land.
7 Mr Smith’s locality was somewhat smaller and was based on the likely visibility of the proposed development from various points on Hoggs Road and Pages Road. This led him to identify an area extending for about 100 metres around the subject land.
8 Mr Brunning’s locality was smaller again, comprising most of the extent of Hoggs Road between Brownhill Creek Road and Carrick Hill Drive, plus a small extension for two blocks north along Pages Road. In his opinion this encompassed "...properties and land which are visible from the subject land, form part of the pattern and character of development and contribute to a ‘sense of place’".
9 On balance I prefer the approach taken by Mr Smith and Mr Brunning which defines the locality in this case primarily on the basis of the likely visibility of the proposed development from nearby properties and from various points along Hoggs Road and Pages Road. I also think that Mr Brunning’s locality best encompasses those sites and areas likely to have a direct visual connection with the proposed development. However, I have also taken some note of Mr Outhred’s evidence that this immediate locality of the subject land forms part of a larger residential area of coherent character, primarily comprising detached houses of diverse age and styles. There is a mix of two-storey and single-storey dwellings throughout this larger area. There are some large and imposing dwellings, several of which occupy elevated positions, taking advantage of the sloping character of the area. Allotments are generally in excess of 700 metres in size but there are some smaller allotments here and there, including two pairs of semi-detached dwellings at 25-27 and 19a -19b Church Road and an allotment of 630m² at 3 Pages Road.
10 At 12 Pages Road, immediately to the west of the subject land, is a large State Heritage-listed building known as ‘Rust Hall’ which sits on an allotment of more than 2600m². At 4 Hoggs Road, Haverhill House is a substantial local heritage-listed place and there are also several more two-storey dwellings on this southern (‘high’) side of Hoggs Road which are sited on their allotments so as to take advantage of views to the Adelaide Plains. A recently-constructed dwelling at 4a Hoggs Road falls into this latter category, as does its neighbour to the east at 2a Hoggs Road and there is another prominently sited dwelling on the corner of Hoggs Road and Carrick Hill Drive at 33 Carrick Hill Drive. Existing dwellings on the northern side of Hoggs Road to the east of the subject land appear as single-storey from the road but in several instances make use of the slope of the land to include a second, lower-storey at the rear. Most allotments along Hoggs Road are over 700m² in area but there are two smaller allotments at 11 and 13 Hoggs Road, west of Pages Road, each of which is a little under 550m².
11 Overall the locality is one which enjoys a high level of amenity. This derives not from any particular consistency of dwelling form, design or architectural style but from the generally high quality of dwellings, most of which date from the later decades of the twentieth century, from the topography and also from the many mature trees which exist in both the public road reserves and on private land.

The Proposal

12 The development proposal, which was the subject of the appeal, was described in a series of three plans and elevations prepared by D’Andrea and Associates Pty Ltd dated 7 August 2007 (Exhibit A1). The proposal is to demolish the existing dwelling on the subject land and to construct two two-storey semi-detached dwellings, including garages and decking on the land.
13 A separate application has been lodged for the subdivision of the subject land. When divided, the site for the western dwelling will have an area of 589m² and the site for the eastern dwelling will have an area of 498m². The western dwelling has a total floor area of some 289m² and site coverage of some 32%. The eastern dwelling has a total floor area of about 285m² and site coverage of about 40%. The western dwelling will have 119m² of private open space and the eastern dwelling will have 117m². The maximum ridge height of the roof of the western dwelling is 9.1 metres above existing ground level while, for the eastern dwelling, the maximum ridge height is about 8.4 metres.
14 The western dwelling is to be set back 8 metres from Pages Road at its closest point and 5.4 metres from Hoggs Road. The building will have a ground floor level of 120 metres AHD and the finished floor level of the first floor will be 123.1 metres. To accommodate the floor plate of this dwelling it is proposed to excavate below the existing surface level to a maximum depth of a little over 2 metres.
15 The eastern dwelling is to be set back by at least 6.8 metres from Hoggs Road at ground floor level. The ground floor of this building will be at 123.6 AHD, below the level of Hoggs Road, and the upper finished floor level will be at 126.7 AHD. This dwelling is to be benched into the slope, commencing at a level equivalent to the lower of two existing levelled benches on the eastern side of the site. Excavation at the extreme southeastern corner of the floor plate will be to a maximum depth of 1.4 metres and there will be some filling of about 1.2 metres at the northwest corner of the dwelling’s site.
16 The dwellings are to be of masonry construction with timber-framed windows. The walls will have a rendered, cream coloured finish and the roofs and verandahs will be of Slate Grey Colorbond.
17 Each dwelling is to be provided with a separate double garage and driveway with space to accommodate at least one visitor’s car. The garage for the western dwelling will face Pages Road while that for the eastern dwelling will face Hoggs Road.

Development Plan Provisions

18 As noted earlier, the subject land is located in the Residential (Foothills) Zone of the Mitcham (City) Development Plan, as consolidated on 22 September 2005. This is a large zone extending over a number of foothills suburbs within the City of Mitcham. There is a single objective for the zone as follows:

Objective 1: Development comprising detached dwellings at low densities where the site area, design, siting and appearance of development takes account of the particular topography of the area such that any development has minimal visual and environmental impact.

The Desired Character Statement for the zone reads as follows:

This zone is characterized by two main distinguishing features. The first relates to the topography of the area which ranges from gently undulating to very steep. The elevation of the area gently increases as the Adelaide plains merge with the foothills of the Mount Lofty Ranges. The second relates to the age of the housing stock; constructed primarily since the 1960's and 1970's, its condition is generally very good.
As a result the area has a relatively modern character with some very large homes built on generous allotments usually in excess of 600 square metres. Considerably larger allotments occur in the steeper portions of the area. Many houses are two-storey or split-level in design. Commanding views are available from the most elevated sections of the area, and consequently those areas are also quite visible from many viewing points on the flatter Adelaide plains and elsewhere.
The character of the zone should substantially remain the same, and new dwellings of similar density should continue to be developed in the area. Where appropriate new sites may be created for dwellings. However, considerable attention should be given to the impact of any subsequent development on the privacy and amenity of existing properties, and the appearance of the development if it is in a highly visible and prominent location. New development should also preserve and reinforce the environmental qualities of the area by avoiding interference with natural drainage lines and creeks, remnant vegetation, and minimising alteration to the natural ground levels.

Due to the age and condition of housing in the area and the steep topography in some parts, the zone is generally not suited to any higher density form of residential development than that already prevailing. Opportunities for dwellings with smaller site areas, which would add to the range of housing choices in the policy area, may be appropriate on relatively flat sites where environmental and amenity impacts are likely to be negligible.

19 Relevant Principles of Development Control for the Residential (Foothills) Zone are as follows:

Principle 1: Development should be in accordance with the objective and desired character of the zone.
Principle 3: Development of semi-detached dwellings and land division for such purposes should only occur where:
(a) the gradient of each semi-detached dwelling site is no steeper than 1-in-8;
(b) each dwelling site is greater than 450 square metres in area.

Principle 4: Development should be designed and sited to relate to the slope of the land, so that:
(a) the bulk and scale of the buildings do not dominate the landscape;
(b) the amount of cutting and filling of the natural ground profile is minimised;
(c) wherever possible, existing vegetation is used to screen the building and excavation or filling from view; and
(d) vistas obtained from adjoining dwellings and public open spaces are maintained wherever reasonably possible.

Principle 6: Development of more than one-storey in height should take account of the following factors:
(a) the height and bulk of the proposed building relative to adjoining dwellings;
(b) the design of the building being stepped in accordance with the slope of the land;
(c) the form of the building being articulated to break down its apparent bulk; in addition, the upper-storey of the dwelling should be set-back a greater distance from front and side boundaries than the lower-storey, as provided in principles of development control numbered 19 and 20 under the heading "Residential Development".

20 In addition to the zone provisions, there are several objectives and principles of development control from the ‘Metropolitan Adelaide’ and ‘Council Wide’ sections of the Development Plan which are of relevance to this matter, as follows:

METROPOLITAN ADELAIDE

Objective 6: A compact metropolitan area.

Objective 7: A variety and choice of dwelling types to meet the needs and preferences of all sections of the community.

Objective 9: Safe, pleasant, convenient and efficient residential zones.

Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects.

Principles of Development Control

Principle 3: Residential zones should be developed with housing to meet the needs of the metropolitan community.
Principle 9: Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.

COUNCIL WIDE

Objective 14: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.

Objective 16: A range of dwellings that meets the needs of residents.

Principles of Development Control

Principle 24: Earthworks resulting in the filling and/or excavation of land more than 1.5 metres above or below natural ground surface should be avoided, and only undertaken where existing vegetation, proposed landscaping or the form of the building would assist in screening the earthworks from view from the adjoining road.
In addition, retaining walls over one metre in height are to be:
(a) located a minimum of one metre inside the boundary of dwelling site;
(b) if located closer to a road boundary than a dwelling, constructed to allow landscaping to be installed above and over the wall;
(c) not greater than 1.5 metres high.

Principle 26: (a) Dwellings should:

(i) not detract from the character and amenity of adjoining development;
(ii) complement the desired character and streetscape of the locality;
(iii) if greater than one-storey in height, minimise overshadowing and intrusion into privacy of adjoining properties and impacts due to differences in scale; and
(iv) not be greater than two storeys or 8.0 metres high as measured from existing natural ground level (as may be determined by survey, prior to any earth works being undertaken) to the highest point of the building.

(b) Dwellings proposed to be developed on a sloping site should be designed and sited so as to be in keeping with the slope of the land, by incorporating the following measures:

(i) floor space should be articulated and, where appropriate, of split level design to minimise cut, fill and obtrusiveness of the proposed building;
(ii) the roof-form and profile should be designed to correspond with the natural slope of the site.
(iii) two-storey dwellings should be designed so that the building form and roof-form in particular are highly articulated, to minimise building bulk and visual impact.
.....

Principle 27 (a) Development should minimise the removal of existing vegetation on the site and provide appropriate replacement of any vegetation that is required to be removed. Development should not involve the removal of any remnant native vegetation or other vegetation that contributes to the character of the site and the desired character of the locality.
(b) Development should preserve the long-term stability and health of existing vegetation by avoiding construction, excavation and filling of land close to the trunks of trees and minimising impervious surfaces beneath the canopy of trees. In particular, the construction of dwellings and in-ground swimming pools, or the excavation or filling of land that alters the natural ground level by more than 300 millimetres, should not be undertaken beneath the canopy of any tree.
(c) Development should provide landscaping that enhances the appearance and amenity of the site and complements the desired character of the locality. Landscaping should incorporate species of a type and size appropriate to their location, and have regard to the species contained in Table Mit/2.....
Principal 149: Development should incorporate landscaping as an integral part of the design of the development.

21 Also of some relevance to the assessment of the proposed development in my view are Metropolitan Objectives 1, 2 and 8 and Principles 4, 8, 11 and 14; and Council Wide Objectives 4, 5, 8, 15, 17, 19, 20, 21, 22, 23 and 27 and Council Wide Principles 1, 2, 3, 16, 17, 18, 19, 20, 21, 22, 28, 32, 37, 39, 40, 41, 74, 131, 145, 146, 147, 150, 151, 152, 153, 154, 177, 179, 180, 181 and 182.

Assessment

22 It was accepted by all parties that the proposed dwellings were properly categorised as semi-detached as this term is defined in the First Schedule of the Development Regulations 1993.
23 Mr Smith and Mr Outhred were of the opinion that, overall, the proposal complied with the relevant provisions of the Development Plan and warranted consent. Mr Brunning’s opinion was that, while the matter was ‘finely-balanced’, he could not support the approval of the proposal since, in his assessment, it was contrary to the achievement of the desired future character of the zone, principally for the following three reasons:

• The proposed sites are less than the size typically evident within the locality;
• The slope of the land is steeper than that anticipated for smaller lot dwellings; and

• The form of the proposed development is inconsistent with the existing character of the locality in terms of its bulk, scale and appearance.

24 Turning first to the size of the proposed allotments, the Desired Character Statement for the zone speaks of ‘generous allotments usually in excess of 600 square metres’. Most allotments in the locality are substantially larger than this, but there is considerable variation. For example, 12 Pages Road, immediately to the west of the subject land, has an allotment size of 2605m². Immediately to the west again are numbers 11 and 13 Hoggs Road with areas of 537m² and 545m² respectively. 9 Hoggs Road, to the east of the subject land, has an area of 945m² while 9 Pages Road, to the north of the subject land, has an area of 1070m². The allotments created when the subject land is divided will be of 589m2 and 498m² respectively. Zone Principle 3 sets a minimum site area for semi-detached dwellings of 450m², so the proposed development meets this quantitative standard.

25 With regard to the slope of the land, Zone Principle 3 also requires that:

Development of semi-detached dwellings and land division for such purposes should only occur where:
(a) the gradient of each semi-detached dwelling site is no steeper than 1-in-8
....

26 Mr Smith calculated the natural slope of the subject land from the highest point at the southeast corner to the lowest point at the northwest corner as 1:7.6. Mr Brunning broadly agreed with this approach and calculated the slope as 1:7.52. On the basis of these calculations the land is marginally steeper than the 1:8 slope specified in Zone Principle 3. Mr Outhred suggested that a more relevant consideration was the gradient of the land through those parts of the site where building was proposed and here he assessed the slope as closer to 1:10. I agree with Mr Outhred’s approach and am satisfied that the subject land meets the slope criterion for semi-detached dwellings as set out in Zone Principle 3.
27 The slope of the land has implications for the amount of cut-and-fill which may be required. The Desired Character Statement for the zone requires that new development should minimize alteration to the natural ground levels. Zone Principle 4 requires that:

Principle 4: Development should be designed and sited to relate to the scope of the land, so that:
...
(b) The amount of cutting and filling of the natural ground profile is minimized.

28 Council Wide Principle 24 provides a quantitative indication of the amount of cut and fill which is acceptable:

Principle 24: Earthworks resulting in the filling and/or excavation of land more than 1.5 metres above or below natural ground surface should be avoided, and only undertaken where existing vegetation, proposed landscaping or the form of the building would assist in screening the earthworks from view from the adjoining road.

29 Principle 24 also requires that ‘retaining walls over one metre in height are to be:

(a) located a minimum of one metre inside the boundary of the dwelling site;

(b) if located closer to a road boundary than a dwelling, constructed to allow landscaping to be installed above and over the wall;

(c) not greater than 1.5 metres high.

30 Mr Smith argued that it made sense to have regard to actual ground levels rather than to some hypothetical notion of the ‘natural’ gradient or the ‘natural ground surface’, given the extent of excavation and levelling which has already occurred on the subject land. Mr Smith’s evidence was that excavation would be required to a maximum depth of a little over 2 metres at one point but that, for the most part, the depth of excavation required was within the 1.5 metre limit set by Council Wide Principle 24. Mr Smith and Mr Outhred argued that the design of the development had sought to minimize the need for retaining walls by providing different floor levels for the two dwellings. Where retaining walls were required, along the southeastern side of the eastern dwelling, along the northern boundary and along the Hoggs Road frontage, these would be less than 1.5 metres high.

I am satisfied that, while there may be some excavation in excess of the 1.5 metres referred to in Council Wide Principle 24 in limited areas, the general effect of the excavation will be to enable the proposed dwellings to be set into the slope in such a way as to reduce the bulk and scale of the development. The location of these excavations on the site is generally such as to minimise their visibility. However, I believe that more details of landscaping proposals for the Hoggs Road frontage and, indeed, for the whole site are required, in part ‘to assist in screening the earthworks from view from the adjoining road’. I shall return to this later.
Mr Brunning’s third argument for not supporting the proposal related to its bulk, scale and appearance. In his evidence he had particular regard to Zone Principles 4 and 6:
Principle 4: Development should be designed and sited to relate to the slope of the land, so that:
(a) the bulk and scale of the buildings do not dominate the landscape;
(b) the amount of cutting and filling of the natural ground profile is minimised;
(c) wherever possible, existing vegetation is used to screen the building and excavation or filling from view; and
(d) vistas obtained from adjoining dwellings and public open spaces are maintained wherever reasonably possible.
Principle 6: Development of more than one-storey in height should take account of the following factors:
(a) the height and bulk of the proposed building relative to adjoining dwellings;
(b) the design of the building being stepped in accordance with the slope of the land;
(c) the form of the building being articulated to break down its apparent bulk; in addition, the upper-storey of the dwelling should be set-back a greater distance from front and side boundaries than the lower-storey, as provided in (Council Wide) principles of development control numbered 19 and 20 under the heading "Residential Development".

31 The slope of the subject land and of adjoining allotments is such that, for the most part, the proposed development will be elevated above the land and building immediately to the north on Pages Road. Mr Outhred acknowledged that, given the slope of the land, the paving level of the eastern proposed dwelling would be approximately at the gutter level of the single-storey brick dwelling to the north. However, he suggested that this was not dissimilar to the relationship between the existing dwelling on the site and its northern neighbour. He was not of the opinion that the proposed semi-detached dwellings would dominate the single-storey building to the north because of the setback from the boundary of the lower levels, the further setback of the upper levels and the compliance of the proposed development with the side boundary building envelope requirements for two-storey dwellings set out in Council Wide Principle 19.
32 With regard to the adjoining dwelling at 9 Hoggs Road, it was Mr Smith’s evidence (illustrated by Exhibit A2) that the gutter level of the two-storey component of the proposed eastern dwelling would be at almost exactly the same level as the gutter level of the dwelling at 9 Hoggs Road and also at a similar level to the ridge line of the existing dwelling on the subject land. Mr Brunning suggested that the gutter level of the dwelling at 9 Hoggs Road was slightly lower and more likely to align with the ridgeline of the single-storey component of the proposed eastern dwelling.
33 The property at 9 Hoggs Road has a substantial verandah which provides views over the subject land and also across the adjoining property to the north. These views are likely to be somewhat reduced by the proposed development but not to a significant extent. It was common ground amongst the experts that there would be no issues of overshadowing caused by the proposed development and that overlooking would be avoided by the installation of obscure glazing in upper-storey windows on the northern and eastern elevations.
34 Mr Smith and Mr Outhred were in agreement that the proposed development complies with the requirement of Zone Principle 6(b) that the design of the building should be ‘stepped in accordance with the slope of the land’. However, Mr Brunning concluded that ‘while an honourable attempt has been made to address the slope of the land by stepping the finished floor levels’, the resulting built form would still have a visual mass that would be unduly dominant, particularly on the Hoggs Road frontage.

35 Mr Brunning’s evidence was also that a part of the proposed development would contravene Council Wide Principle 26, which requires that:

(a) Dwellings should:
....

(iv) not be greater than two storeys or 8.0 metres high as measured from existing natural ground level (as may be determined by survey, prior to any earth works being undertaken) to the highest point of the building.

36 In his evidence Mr Smith suggested again that a choice needed to be made between ‘existing’ and ‘natural’ ground levels since, on a site such as this, which has been previously modified, ‘existing’ and ‘natural’ ground levels were likely to be different. Mr Outhred’s evidence was that no portion of the proposed building was more than 8 metres higher than natural ground level. It appears from the evidence provided that short sections of the ridgelines of both dwellings will exceed the 8 metre limit.
37 Mr Brunning also suggested that the provisions of the Residential (Foothills) Zone relating to ‘highly visible and prominent locations’ were of some significance in the assessment of the proposed development. The fact that the subject land is a corner allotment would increase the prominence and visibility of the development in his view.
38 Zone Principle 5 states some conditions that need to be met by "development that would be prominently visible from the Adelaide Plains", but it was agreed between the expert planners that this particular principle had little relevance to the present proposal. The desired character statement for the zone requires that:

... considerable attention should be given to ... the appearance of the development if it is in a highly visible and prominent location.

39 I agree that the proposed development will not be ‘prominently visible’ from the Adelaide Plains. Moreover, as noted earlier, it is on the low side of Hoggs Road and less prominently sited, for example, than some of the dwellings on the southern side of Hoggs Road, further up the slope towards Carrick Hill Drive. It will no doubt be clearly visible to persons approaching the corner of Pages Road and Hoggs Road from the west, but the three significant trees to be retained on the Pages Road frontage of the land will have some effect in reducing the visual impact on that side. It seems to me that it is not plausible for Mr Brunning to restrict his locality to the limited area that he has identified and to argue simultaneously that this is one of those prominent and highly visible sites of which the Development Plan speaks and where special consideration is required. It is a corner site but I accept Mr Hilditch’s submission to the effect that there are many corner sites in Mitcham and that being on a corner does not, by itself, make a site ‘prominent’.
40 There is no doubt that the proposed dwellings will be much larger and relatively more visible from Hoggs Road than the existing dwelling on the site. Overall, however, I am satisfied that the variations in building setbacks, roof lines and floor levels, the articulation of the facades, the way in which the building steps down the slope and the different neutral colours selected for the roofs and walls will reduce the perceived bulk and scale of the development and will complement the desired character and streetscape of the locality.
41 Mr Brunning offered the opinion that a better solution on this land would be to develop the site with a pair of detached dwellings, similar in form and siting perhaps to the dwellings on the small allotments a little to the west of the subject land at 11 and 13 Hoggs Road. He was of the view that such a development would provide more scope for effective landscaping. Apart from the fact that such a proposal would be likely to fall foul of a number of quantitative Development Plan provisions relating to detached dwellings, I do not believe that this suggestion is of much help. The task is to assess the current proposal.
42 However, I do think that there are issues in relation to landscaping which need to be further considered. As noted earlier, the proposed development will retain three existing river red gums which are significant trees on the Pages Road frontage. The proposal also incorporates the recommendations of Mr Dean Nicolle, a qualified and experienced arborist, on the current and future health and safety of these three trees.
43 Council Wide Principle of Development Control 149 requires that ‘development should incorporate landscaping as an integral part of the design of the development’.
44 Council-wide Principle of Development Control 27(c) requires that:

(c) Development should provide landscaping that enhances the appearance and amenity of the site and complements the desired character of the locality. Landscaping should incorporate species of a type and size appropriate to their location, and have regard to the species contained in Table Mit/2.

45 Table Mit/2 provides a guide to appropriate landscaping species that may be planted within the Council area. Additional planting is proposed as part of the development, but this new planting is comprised entirely of introduced species of trees and shrubs. No details have been provided to show the location and layout of these proposed trees and shrubs and none of the proposed species appear in Table Mit/2. It is the case that gardens in this locality contain a wide variety of species, including many introduced plants. Nevertheless, I believe it is of importance that, to give effect to the intent of Principles of Development Control 149 and 27(c), a detailed landscape plan should be prepared for the site to the satisfaction of the Council by an appropriately qualified professional. This plan should specify suitable species and should pay particular attention to appropriate planting along the Hoggs Road frontage to assist with the screening of the development and, in general, to enhance the appearance and amenity of the site and complement the desired character of the locality.

Conclusion

46 Mr Manos in his closing submission suggested that it was important to be clear about the primary kind of development sought in this zone. He argued that this could be read unambiguously from the single objective for the zone which mentions only detached dwellings:

Development comprising detached dwellings at low densities where the site area, design, siting and appearance of development takes account of the particular topography of the area such that any development has minimal visual and environmental impact.

47 Mr Manos referred the Court to the recent decision of the Supreme Court in City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244. This matter concerned an application to demolish an existing dwelling and construct five single-storey dwellings within Policy Area 8 of the Residential (Central Plains) Policy Area. In his judgement Debelle J noted (para 11) that the Statement of Desired Character for the relevant policy area:

.....expressly states that the preferred form of development is for detached dwellings. The effect of the provisions relating to new development is that, if medium density development is to occur.....such development should also ensure that site areas per dwelling are sufficiently large to provide an adequate provision of unbuilt upon land, including private open space with each dwelling. The Development Plan does not seek medium density development in this policy area. Instead, it provides standards should that development occur.

48 I accept that the objective of the Residential (Foothills) Zone refers only to detached dwellings. However, the Desired Character Statement indicates that ‘Where appropriate new sites may be created for dwellings’ and Zone Principle 3 refers explicitly to semi-detached dwellings. Taking these together I have concluded that semi-detached dwellings, while not the norm in this zone, can be approved provided that they comply with the specific criteria set out in Zone Principle of Development Control 3 and that they are appropriate when considered in relation to all other relevant provisions of the Development Plan. These relevant provisions include the requirement expressed in the desired character statement for the zone that the character of the zone should substantially remain the same and that new dwellings should be of similar density to those currently existing in the area.
49 In relation to the requirement that dwellings in this zone be ‘low density’, Mr Manos referred the Court to the decision of Commissioner Turner in Ottewill v City of Mitcham ERDC 345 of 1997 to the effect that the meaning of the term ‘low density’ can be determined having regard to the standards for complying development in the zone. There is no precise guidance in the Development Plan as to the meaning of ‘low density’ and it may be that, in some circumstances, the standards for complying development can provide one indicator of the intentions of the Development Plan in relation to appropriate densities. However, in the present case, there was no evidence from any of the expert planners to suggest that the proposed development is anything other than low density. Indicators such as site coverage and the areas of private open space provided in relation to each dwelling lend ample support to the view that this is a low-density development and I accept this.
50 Mr Manos further referred the Court to the decision of the Supreme Court in City of Mitcham v Ansaar & Anor [2006] SASC 78 which concerned a proposal to divide land for residential purposes, also in the Residential (Foothills) Zone and where the extent of cut and fill was of some significance. In his judgement in this case Debelle J emphasised the wording of the fourth paragraph of the statement of Desired Character for the Residential (Foothills) Zone. (The relevant Development Plan in City of Mitcham v Ansaar was that consolidated on 5 June 2003 but the statement of desired character in that plan is identical to that in the relevant plan for the present matter). This paragraph reads as follows:

The character of the zone should substantially remain the same, and new dwellings of similar density should continue to be developed in the area. Where appropriate new sites may be created for dwellings. However, considerable attention should be given to the impact of any subsequent development on the privacy and amenity of existing properties, and the appearance of the development if it is in a highly visible and prominent location. New development should also preserve and reinforce the environmental qualities of the area by avoiding interference with natural drainage lines and creeks, remnant vegetation, and minimising alteration to the natural ground levels.

51 At Para 18 of his judgement, Debelle J emphasises the weight to be placed on the second sentence of the above paragraph:

The clear intent is that new residential allotments may only be created where it is appropriate to do so. When considering whether it is appropriate to create new residential allotments, regard should be had to the sentences which follow in that paragraph. These factors include preservation and re-inforcement of the environmental qualities of the area by, among other things, minimising alteration to natural ground levels. It follows that, if a proposed division of land does not preserve and re-inforce the environmental qualities and in particular does not minimise alteration to natural ground levels, it may not be an appropriate site for residential development.

52 On the issue of cut and fill, Mr Manos also referred to the judgement in Daleport Holdings Pty Ltd v Brooks & Ors [2007] SASC 260 where, at para 36, Debelle J indicated that:

.....it is no answer that the excavation will be screened by the proposed dwelling. The concerns of the Development Plan are not only with the visual aspect of excavation but their interference with natural landforms.

53 I accept that in assessing a proposal it is necessary to consider both the visual impact of excavation and the interference with natural forms. However, it appears that, in the Daleport case, the amount of excavation proposed was very substantial and well in excess of the requirement set out in the relevant Development Plan. In the current matter the amount of excavation proposed exceeds 1.5 metres only in two small areas of the site and then by only a small amount.
54 I am satisfied on the evidence that the proposed development does minimise cut and fill as required by Zone Principle of Development Control 4(b). It also meets all other quantitative standards set out in the relevant sections of the Development Plan or, to the extent that it fails to meet them, it does so by sufficiently small margins as to be of no consequence in my view. I have not reached my conclusion in this matter, however, by having a narrow regard for compliance with the minimum quantitative standards set for such matters as cut and fill, slope, site area and building height. I have sought also to have proper regard to the overall spirit and intent of the objectives and principles of the Residential (Foothills) Zone and to those other provisions and qualitative requirements of the Development Plan that I have identified as relevant.
55 In summary, the Residential (Foothills) Zone allows for semi-detached dwellings, provided that certain requirements of site area and slope can be met and where the development can be demonstrated to be appropriate with regard to other relevant provisions of the Development Plan, including the Desired Character of the Residential (Foothills) Zone. Having satisfied myself on balance that a development of this sort is acceptable within the zone, I have then made a planning judgement of whether the bulk, scale, form and design of the proposed dwellings complies with relevant provisions of the Development Plan. This site is not highly visible or prominent. Housing styles and allotment sizes in the locality are varied and diverse and include several two-storey dwellings on sites which are likely to be more visible than this one. It is a well-designed development which steps down the site in an appropriate way, has a varied roof line, is well-articulated, sets back its upper storeys appropriately and, overall, will sit comfortably in the existing streetscape and locality.
56 I have given careful consideration to all of the evidence, to the submissions of counsel and to what I saw on the view. Having done so, I have concluded that the proposal warrants consent.
57 I informed the parties of this conclusion by Memorandum and invited them to consider appropriate conditions of consent. On the resumption of proceedings Mr Manos, for the Council, provided a draft set of conditions. Mr Hilditch, for the Appellant indicated that he had been provided with a copy of these draft conditions and was broadly in agreement with them. He suggested some minor amendments for the purposes of clarifying the intent of the conditions and to remove duplication. Mr Manos made no objection to these suggestions, and they are reflected in the conditions, which I have set out below.
58 The Appeal is upheld. Development Plan Consent is granted to Development Application Number 080/1226/2006, subject to the following conditions:

1. The proposal shall be developed in accordance with the plans prepared by D’Andrea and Associates, as amended on 7 August 2007 (Exhibit A1), and with all other details relating to Development Application Number 080/1226/2006, except where varied by the following conditions of consent.

2. All building works detailed in the approved plans and required by any condition of approval shall be completed prior to the occupation of the development.

3. All scarring or physical disturbances of the land during any excavation work shall be restricted to only that which is shown on the approved plans and only as required for building work and/or access purposes.

4. All exposed faces of cut and/or fill shall be:

- rounded off to match and blend with the natural contours of the land;
- covered with approximately 100mm of topsoil immediately after excavation; and
- seeded to avoid erosion and reduce visual impact on amenity within six months of the site being excavated.

5. Retaining walls shall be used to contain cut and fill within the subject land.

6. Erosion control measures shall be maintained to the satisfaction of Council throughout the progress of the work.

7. During excavation, vegetation above and below the cut and fill areas shall be retained as far as practicable so as to avoid soil erosion caused by run-off water entering into the site and into the excavation.

8. Any additional excavated material not required as fill for the site shall be removed immediately after excavation.

9. A landscaping and paving plan, drawn to scale and prepared by a suitably qualified landscape architect or horticulturalist, shall be submitted to Council for approval prior to development approval being granted. The landscape plan shall include species of a size and type appropriate to the location and shall have regard to the species contained in Table Mit/2 of the Mitcham (City) Development Plan. The landscaping plan shall pay particular attention to appropriate planting along the Hoggs Road frontage, with the purpose of softening and enhancing the appearance of the development.

10. The landscaping shall be established within three months of the occupancy of the development which is the subject of this approval and shall be maintained in good condition at all times to the reasonable satisfaction of the Council. Vegetation shall be replaced if it dies or becomes diseased.

11. Measures to protect the significant trees on the subject land, including the establishment of a ‘tree protection zone’, shall be undertaken in strict accordance with the recommendations contained in the tree protection report prepared by Mr Dean Nicolle, dated 21 November 2006 and provided to the Court as part of Exhibit R1. The crown pruning recommended in Mr Nicolle’s report shall be carried out by a qualified arborist.

12. Services to the site and within the site shall be placed underground and shall be located so as to minimise the impact on the root zones of the significant trees. Service connections shall be provided beyond the boundaries of the tree protection zone.

13. The footings of the proposed dwellings shall be designed in such a way as to ensure that minimal disturbance to the roots of the significant trees occurs.

14. All fencing on the subject land shall be of a design, materials and height sufficient for the protection of privacy of occupiers of adjoining land and to a standard of construction and materials commensurate with the character and amenity of the locality, all to the reasonable satisfaction of Council. All fencing costs over and above those of a typical fence in the locality, required to address issues of privacy created by the development herein approved, shall be wholly borne by the developer.

15. All upper-storey windows, other than those on street elevations, shall be of fixed obscure glass, have fixed shutters or shall employ similar screening to a height of not less than 1.7 metres from the finished floor level.

16. All stormwater shall be effectively disposed of from the subject site to the Council drainage system.

17. A stormwater management plan shall be submitted to and approved by the Council prior to development approval being granted.

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URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/2007/49.html

1	This is an appeal against a decision by the City of Mitcham ("the Council") to refuse an application by Faye Hambour to construct two semi-detached dwellings on land at 11 Pages Road, Mitcham. The subject land lies within the Residential (Foothills) Zone as defined in the Mitcham (City) Development Plan, as consolidated on 22 September 2005. At its meeting on 7 March 2007 the Council’s Development Assessment Panel refused the application, on the grounds that "the bulk, scale, style and form (of the) proposed development is contrary to the desired character of the zone and locality in which the land is situated" and that the proposal was also contrary to several specified provisions of the Mitcham (City) Development Plan. Following a conference of the parties on 3 May 2007 an amended proposal was prepared and considered at a meeting of the Development Assessment Panel on 4 July 2007 but this was also found to be unacceptable by the panel and the matter proceeded to a hearing.
2	At the start of the hearing the Court was informed that, in the period since the appeal had been lodged, Ms Hambour had sold the subject land and an application was made to amend the name of the Appellant to that of the purchaser, Kentley Pty Ltd. No objection was raised to this and the name of the Appellant was amended accordingly.
3	The Appellant was represented by Mr J Hilditch, of counsel. Mr G Manos, of counsel, appeared for the Council. The Court heard expert evidence from three qualified town planning consultants, Mr. J Smith, Mr J Outhred and Mr P Brunning. The Court conducted a view of the subject land and its locality immediately prior to the hearing.

6	Each of the three expert planning witnesses took a different approach to the definition of the locality. Mr Outhred identified a fairly extensive locality bounded by Church Road to the north, Carrick Hill Drive to the east and Brownhill Creek Road to the west and south. In determining the potential impact of the proposed development, Mr Outhred had regard to properties within an area extending up to 200 metres from the subject land.
7	Mr Smith’s locality was somewhat smaller and was based on the likely visibility of the proposed development from various points on Hoggs Road and Pages Road. This led him to identify an area extending for about 100 metres around the subject land.
8	Mr Brunning’s locality was smaller again, comprising most of the extent of Hoggs Road between Brownhill Creek Road and Carrick Hill Drive, plus a small extension for two blocks north along Pages Road. In his opinion this encompassed "...properties and land which are visible from the subject land, form part of the pattern and character of development and contribute to a ‘sense of place’".
9	On balance I prefer the approach taken by Mr Smith and Mr Brunning which defines the locality in this case primarily on the basis of the likely visibility of the proposed development from nearby properties and from various points along Hoggs Road and Pages Road. I also think that Mr Brunning’s locality best encompasses those sites and areas likely to have a direct visual connection with the proposed development. However, I have also taken some note of Mr Outhred’s evidence that this immediate locality of the subject land forms part of a larger residential area of coherent character, primarily comprising detached houses of diverse age and styles. There is a mix of two-storey and single-storey dwellings throughout this larger area. There are some large and imposing dwellings, several of which occupy elevated positions, taking advantage of the sloping character of the area. Allotments are generally in excess of 700 metres in size but there are some smaller allotments here and there, including two pairs of semi-detached dwellings at 25-27 and 19a -19b Church Road and an allotment of 630m² at 3 Pages Road.
10	At 12 Pages Road, immediately to the west of the subject land, is a large State Heritage-listed building known as ‘Rust Hall’ which sits on an allotment of more than 2600m². At 4 Hoggs Road, Haverhill House is a substantial local heritage-listed place and there are also several more two-storey dwellings on this southern (‘high’) side of Hoggs Road which are sited on their allotments so as to take advantage of views to the Adelaide Plains. A recently-constructed dwelling at 4a Hoggs Road falls into this latter category, as does its neighbour to the east at 2a Hoggs Road and there is another prominently sited dwelling on the corner of Hoggs Road and Carrick Hill Drive at 33 Carrick Hill Drive. Existing dwellings on the northern side of Hoggs Road to the east of the subject land appear as single-storey from the road but in several instances make use of the slope of the land to include a second, lower-storey at the rear. Most allotments along Hoggs Road are over 700m² in area but there are two smaller allotments at 11 and 13 Hoggs Road, west of Pages Road, each of which is a little under 550m².
11	Overall the locality is one which enjoys a high level of amenity. This derives not from any particular consistency of dwelling form, design or architectural style but from the generally high quality of dwellings, most of which date from the later decades of the twentieth century, from the topography and also from the many mature trees which exist in both the public road reserves and on private land.

12	The development proposal, which was the subject of the appeal, was described in a series of three plans and elevations prepared by D’Andrea and Associates Pty Ltd dated 7 August 2007 (Exhibit A1). The proposal is to demolish the existing dwelling on the subject land and to construct two two-storey semi-detached dwellings, including garages and decking on the land.
13	A separate application has been lodged for the subdivision of the subject land. When divided, the site for the western dwelling will have an area of 589m² and the site for the eastern dwelling will have an area of 498m². The western dwelling has a total floor area of some 289m² and site coverage of some 32%. The eastern dwelling has a total floor area of about 285m² and site coverage of about 40%. The western dwelling will have 119m² of private open space and the eastern dwelling will have 117m². The maximum ridge height of the roof of the western dwelling is 9.1 metres above existing ground level while, for the eastern dwelling, the maximum ridge height is about 8.4 metres.
14	The western dwelling is to be set back 8 metres from Pages Road at its closest point and 5.4 metres from Hoggs Road. The building will have a ground floor level of 120 metres AHD and the finished floor level of the first floor will be 123.1 metres. To accommodate the floor plate of this dwelling it is proposed to excavate below the existing surface level to a maximum depth of a little over 2 metres.
15	The eastern dwelling is to be set back by at least 6.8 metres from Hoggs Road at ground floor level. The ground floor of this building will be at 123.6 AHD, below the level of Hoggs Road, and the upper finished floor level will be at 126.7 AHD. This dwelling is to be benched into the slope, commencing at a level equivalent to the lower of two existing levelled benches on the eastern side of the site. Excavation at the extreme southeastern corner of the floor plate will be to a maximum depth of 1.4 metres and there will be some filling of about 1.2 metres at the northwest corner of the dwelling’s site.
16	The dwellings are to be of masonry construction with timber-framed windows. The walls will have a rendered, cream coloured finish and the roofs and verandahs will be of Slate Grey Colorbond.
17	Each dwelling is to be provided with a separate double garage and driveway with space to accommodate at least one visitor’s car. The garage for the western dwelling will face Pages Road while that for the eastern dwelling will face Hoggs Road.

31	The slope of the subject land and of adjoining allotments is such that, for the most part, the proposed development will be elevated above the land and building immediately to the north on Pages Road. Mr Outhred acknowledged that, given the slope of the land, the paving level of the eastern proposed dwelling would be approximately at the gutter level of the single-storey brick dwelling to the north. However, he suggested that this was not dissimilar to the relationship between the existing dwelling on the site and its northern neighbour. He was not of the opinion that the proposed semi-detached dwellings would dominate the single-storey building to the north because of the setback from the boundary of the lower levels, the further setback of the upper levels and the compliance of the proposed development with the side boundary building envelope requirements for two-storey dwellings set out in Council Wide Principle 19.
32	With regard to the adjoining dwelling at 9 Hoggs Road, it was Mr Smith’s evidence (illustrated by Exhibit A2) that the gutter level of the two-storey component of the proposed eastern dwelling would be at almost exactly the same level as the gutter level of the dwelling at 9 Hoggs Road and also at a similar level to the ridge line of the existing dwelling on the subject land. Mr Brunning suggested that the gutter level of the dwelling at 9 Hoggs Road was slightly lower and more likely to align with the ridgeline of the single-storey component of the proposed eastern dwelling.
33	The property at 9 Hoggs Road has a substantial verandah which provides views over the subject land and also across the adjoining property to the north. These views are likely to be somewhat reduced by the proposed development but not to a significant extent. It was common ground amongst the experts that there would be no issues of overshadowing caused by the proposed development and that overlooking would be avoided by the installation of obscure glazing in upper-storey windows on the northern and eastern elevations.
34	Mr Smith and Mr Outhred were in agreement that the proposed development complies with the requirement of Zone Principle 6(b) that the design of the building should be ‘stepped in accordance with the slope of the land’. However, Mr Brunning concluded that ‘while an honourable attempt has been made to address the slope of the land by stepping the finished floor levels’, the resulting built form would still have a visual mass that would be unduly dominant, particularly on the Hoggs Road frontage.

36	In his evidence Mr Smith suggested again that a choice needed to be made between ‘existing’ and ‘natural’ ground levels since, on a site such as this, which has been previously modified, ‘existing’ and ‘natural’ ground levels were likely to be different. Mr Outhred’s evidence was that no portion of the proposed building was more than 8 metres higher than natural ground level. It appears from the evidence provided that short sections of the ridgelines of both dwellings will exceed the 8 metre limit.
37	Mr Brunning also suggested that the provisions of the Residential (Foothills) Zone relating to ‘highly visible and prominent locations’ were of some significance in the assessment of the proposed development. The fact that the subject land is a corner allotment would increase the prominence and visibility of the development in his view.
38	Zone Principle 5 states some conditions that need to be met by "development that would be prominently visible from the Adelaide Plains", but it was agreed between the expert planners that this particular principle had little relevance to the present proposal. The desired character statement for the zone requires that:

39	I agree that the proposed development will not be ‘prominently visible’ from the Adelaide Plains. Moreover, as noted earlier, it is on the low side of Hoggs Road and less prominently sited, for example, than some of the dwellings on the southern side of Hoggs Road, further up the slope towards Carrick Hill Drive. It will no doubt be clearly visible to persons approaching the corner of Pages Road and Hoggs Road from the west, but the three significant trees to be retained on the Pages Road frontage of the land will have some effect in reducing the visual impact on that side. It seems to me that it is not plausible for Mr Brunning to restrict his locality to the limited area that he has identified and to argue simultaneously that this is one of those prominent and highly visible sites of which the Development Plan speaks and where special consideration is required. It is a corner site but I accept Mr Hilditch’s submission to the effect that there are many corner sites in Mitcham and that being on a corner does not, by itself, make a site ‘prominent’.
40	There is no doubt that the proposed dwellings will be much larger and relatively more visible from Hoggs Road than the existing dwelling on the site. Overall, however, I am satisfied that the variations in building setbacks, roof lines and floor levels, the articulation of the facades, the way in which the building steps down the slope and the different neutral colours selected for the roofs and walls will reduce the perceived bulk and scale of the development and will complement the desired character and streetscape of the locality.
41	Mr Brunning offered the opinion that a better solution on this land would be to develop the site with a pair of detached dwellings, similar in form and siting perhaps to the dwellings on the small allotments a little to the west of the subject land at 11 and 13 Hoggs Road. He was of the view that such a development would provide more scope for effective landscaping. Apart from the fact that such a proposal would be likely to fall foul of a number of quantitative Development Plan provisions relating to detached dwellings, I do not believe that this suggestion is of much help. The task is to assess the current proposal.
42	However, I do think that there are issues in relation to landscaping which need to be further considered. As noted earlier, the proposed development will retain three existing river red gums which are significant trees on the Pages Road frontage. The proposal also incorporates the recommendations of Mr Dean Nicolle, a qualified and experienced arborist, on the current and future health and safety of these three trees.
43	Council Wide Principle of Development Control 149 requires that ‘development should incorporate landscaping as an integral part of the design of the development’.
44	Council-wide Principle of Development Control 27(c) requires that:

48	I accept that the objective of the Residential (Foothills) Zone refers only to detached dwellings. However, the Desired Character Statement indicates that ‘Where appropriate new sites may be created for dwellings’ and Zone Principle 3 refers explicitly to semi-detached dwellings. Taking these together I have concluded that semi-detached dwellings, while not the norm in this zone, can be approved provided that they comply with the specific criteria set out in Zone Principle of Development Control 3 and that they are appropriate when considered in relation to all other relevant provisions of the Development Plan. These relevant provisions include the requirement expressed in the desired character statement for the zone that the character of the zone should substantially remain the same and that new dwellings should be of similar density to those currently existing in the area.
49	In relation to the requirement that dwellings in this zone be ‘low density’, Mr Manos referred the Court to the decision of Commissioner Turner in Ottewill v City of Mitcham ERDC 345 of 1997 to the effect that the meaning of the term ‘low density’ can be determined having regard to the standards for complying development in the zone. There is no precise guidance in the Development Plan as to the meaning of ‘low density’ and it may be that, in some circumstances, the standards for complying development can provide one indicator of the intentions of the Development Plan in relation to appropriate densities. However, in the present case, there was no evidence from any of the expert planners to suggest that the proposed development is anything other than low density. Indicators such as site coverage and the areas of private open space provided in relation to each dwelling lend ample support to the view that this is a low-density development and I accept this.
50	Mr Manos further referred the Court to the decision of the Supreme Court in City of Mitcham v Ansaar & Anor [2006] SASC 78 which concerned a proposal to divide land for residential purposes, also in the Residential (Foothills) Zone and where the extent of cut and fill was of some significance. In his judgement in this case Debelle J emphasised the wording of the fourth paragraph of the statement of Desired Character for the Residential (Foothills) Zone. (The relevant Development Plan in City of Mitcham v Ansaar was that consolidated on 5 June 2003 but the statement of desired character in that plan is identical to that in the relevant plan for the present matter). This paragraph reads as follows:

53	I accept that in assessing a proposal it is necessary to consider both the visual impact of excavation and the interference with natural forms. However, it appears that, in the Daleport case, the amount of excavation proposed was very substantial and well in excess of the requirement set out in the relevant Development Plan. In the current matter the amount of excavation proposed exceeds 1.5 metres only in two small areas of the site and then by only a small amount.
54	I am satisfied on the evidence that the proposed development does minimise cut and fill as required by Zone Principle of Development Control 4(b). It also meets all other quantitative standards set out in the relevant sections of the Development Plan or, to the extent that it fails to meet them, it does so by sufficiently small margins as to be of no consequence in my view. I have not reached my conclusion in this matter, however, by having a narrow regard for compliance with the minimum quantitative standards set for such matters as cut and fill, slope, site area and building height. I have sought also to have proper regard to the overall spirit and intent of the objectives and principles of the Residential (Foothills) Zone and to those other provisions and qualitative requirements of the Development Plan that I have identified as relevant.
55	In summary, the Residential (Foothills) Zone allows for semi-detached dwellings, provided that certain requirements of site area and slope can be met and where the development can be demonstrated to be appropriate with regard to other relevant provisions of the Development Plan, including the Desired Character of the Residential (Foothills) Zone. Having satisfied myself on balance that a development of this sort is acceptable within the zone, I have then made a planning judgement of whether the bulk, scale, form and design of the proposed dwellings complies with relevant provisions of the Development Plan. This site is not highly visible or prominent. Housing styles and allotment sizes in the locality are varied and diverse and include several two-storey dwellings on sites which are likely to be more visible than this one. It is a well-designed development which steps down the site in an appropriate way, has a varied roof line, is well-articulated, sets back its upper storeys appropriately and, overall, will sit comfortably in the existing streetscape and locality.
56	I have given careful consideration to all of the evidence, to the submissions of counsel and to what I saw on the view. Having done so, I have concluded that the proposal warrants consent.
57	I informed the parties of this conclusion by Memorandum and invited them to consider appropriate conditions of consent. On the resumption of proceedings Mr Manos, for the Council, provided a draft set of conditions. Mr Hilditch, for the Appellant indicated that he had been provided with a copy of these draft conditions and was broadly in agreement with them. He suggested some minor amendments for the purposes of clarifying the intent of the conditions and to remove duplication. Mr Manos made no objection to these suggestions, and they are reflected in the conditions, which I have set out below.
58	The Appeal is upheld. Development Plan Consent is granted to Development Application Number 080/1226/2006, subject to the following conditions: