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OEHMS v PORT PIRIE REGIONAL COUNCIL [2008] SAERDC 6 (31 January 2008)

Last Updated: 5 February 2008

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.

OEHMS v PORT PIRIE REGIONAL COUNCIL

[2008] SAERDC 6

Judgment of Commissioner Mosel

31 January 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for a roof that adjoins two existing outbuildings - Rural Living Zone - Policy Area 8 (Port Pirie Country Living) - subject land the subject of Land Management Agreements (LMA) - the definition of total floor area considered - s 57(12) considered - LMA has become, by de facto, a planning instrument for the locality - it is a factor to be taken into account - the proposal exceeds both the guidelines in the Plan and the relevant terms of the LMA - the proposed building conflicts to an unacceptable extent with Zone Principle 9, Council Wide Principles 39, 190, 191 and 192 and the relevant terms of the LMA - the appeal is dismissed and the decision of the Council to refuse consent confirmed.
Development Act 1993; Development Regulations 1993, referred to.
Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321; Jolly v District Council of Yankalilla [2006] SASC 53, considered.

OEHMS v PORT PIRIE REGIONAL COUNCIL
[2008] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This appeal relates to a proposed development on the land situated in the City of Port Pirie at 4 Casuarina Drive, Risdon Park South. The subject land is formally described as Allotment 34 in Deposited Plan 69962. It is more particularly delineated in Certificate of Title Volume 5956 Folio 491.
2 The certificate of title for the subject land includes in the schedule of endorsements two land management agreements ("LMA") entered into between the (then) owners of the broad-acre land (at the time of division but before the sale of each new allotment) and the Port Pirie Regional Council ("the Council") pursuant to s 57(2) of the Development Act 1993. For reasons that will follow, the LMA numbered 10246577 is a relevant consideration in these proceedings.

Development Plan Consent

3 Development Plan Consents already issued by the Port Pirie Regional Council are also relevant in these proceedings. In April 2006, Mr Oehms applied for and received consent to construct two outbuildings on the subject land (DA No. 354/191/06). The outbuildings have been constructed. The larger building is 15.24m long and 9m wide. The smaller building measures 9m x 9m wide. The end walls of each of the outbuildings are separated by a distance of 3m. For reasons that have little bearing in these proceedings, each building was constructed with a roof pitch which differed from the approved plans. A retrospective development application for development plan consent for the "as built" buildings (and thus an application to vary the consent granted for DA No. 354/191/06) was submitted to, and in due course, approved by the Council.

The Development Proposed

4 By application dated 12 February 2007, Mr Oehms applied for Development Plan Consent to construct a roof over the 3m gap between the two outbuildings. The roof, because of the method of construction, relies entirely on the two end walls of the existing outbuildings for support. The pitch of the roof is identical to that approved for the two outbuildings.
5 By decision notification dated 9 May 2007 the Council advised Mr Oehms that consent had been refused. Mr Oehms appealed to this Court and the matter proceeded to hearing.
6 To characterise the proposed development as a "roof" or a "roof between two existing sheds" as appears variously in Exhibit R1 is not incorrect but does, unintentionally, mask the true nature of what is proposed. The roof adjoins the two outbuildings. As a consequence, the structure to all intents and purposes would have the appearance of a single large outbuilding.
7 In the assessment of a retrospective application for consent, the Court must not allow the presence of an unauthorised building or use of land or the facts and circumstances that led to that state of affairs to intrude on its considerations. (Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321). However, I do not think that the decision of the Supreme Court in that matter would limit the use of Exhibit A2, for example, to assist the Court gaining an understanding of the nature of what is "proposed". Exhibit A2 comprises a series of (recently taken) photographs of the existing outbuildings and the proposed roof. The various photographs in Exhibit A2 clearly demonstrate how the adjoining of the two buildings by the roof acts to form a single outbuilding.
8 The proposal is thus "a roof between two existing outbuildings constructed in a manner such as to create a single outbuilding measuring 27.24m long, 9m wide and 4.8m high (to the ridge)". The floor area of the structure when measured under the entirety of the roof is 245.16m².

The Land Management Agreement (LMA)

9 The subject land is one of 48 allotments of a residential scheme created by land division that was undertaken in stages. The LMA mentioned above is registered on the Certificates of Title for 38 of the allotments that were created in Stages 2, 3 and 4 of the scheme. The LMA gives rise to contractual obligations between the owner and the Council. Item 2.8 of the LMA is in the following terms:

2.8 The Owner shall ensure that any building work on the residential allotments is consistent with the Design Guidelines and Principles specified in the First Schedule to this Deed.

Item 5 of the First schedule mentioned above is in the following terms:

5. Any shed or outbuilding constructed on the residential allotments shall not exceed the floor dimensions of 135 square metres in area and 3 metres in height and the external roof and wall claddings shall be of new colourbond material.

10 To his credit Mr Oehms said in evidence that he was, at the time of purchasing the subject land, aware of the LMA and understood its terms.
11 Mr Williams, a planner in the employment of the Council, said in evidence that he placed some weight on the above terms of the LMA when forming his opinion on the proposed development.
12 Both parties made submissions about the relevance of the LMA in these proceedings.
13 Part 5 of the Development Act 1993 and, more particularly, s 57 establishes the means by which a Council may enter into an LMA with the owner of land. By its terms s 57(12) provides a discretion to a relevant authority and thus this Court to take into account the terms of an LMA.

(12) The existence of an agreement under this section may be taken into account when assessing an application for a development authorisation under this Act.

14 In the matter of Jolly v District Council of Yankalilla [2006] SASC 53, the Full Court of the Supreme Court dealt with the application of s 57(12). In the lead judgment, Perry J, at para 53, held that s 57(12) "must be taken into account by a relevant authority within the meaning of the Act in dealing with an application for approval"(emphasis added). However, Perry J, at para 58, went further in qualification: "The question as to what regard should be paid to the provisions of an LMA, will vary according to the circumstances surrounding an application for development approval".

The Development Plan and Locality

15 The relevant Development Plan for Port Pirie (RC) is the version dated 25 January 2007 ("the Plan").
16 The subject land is depicted in the Plan on Map PtPi/13. It is within the Rural Living Zone ("the Zone"). The rear boundary of the subject land is also the boundary between the Zone and the Residential Zone.
17 There are four objectives for the Zone. Objectives 1-3 inclusive are relevant considerations.

Objective 1: A zone primarily accommodating detached dwellings on a range of allotment sizes in association with a range of low-intensity rural activities.
Objective 2: A pleasant rural- residential character as derived from allotments of sufficient size to support mixed small-scale rural activities, landscaping and dwellings.
Objective 3: Development having a high standard of appearance, by reason of design, intensity and nature of land use, external building materials and colours, siting and landscaping, so as to create an attractive semi rural character for the locality.
...

18 Also relevant are Principles 2, 6 and 9.

...

2 Rural living activities should be of a scale and intensity compatible with the rural living/residential development in and adjacent to the Rural Living and Residential Zones in particular.
...
6 Buildings and structures should:
(a) be sited to minimise obtrusive locations;
(b) be clustered to ensure that the majority of any site remains free from buildings and structures;
(c) maximise the retention of mature vegetation;
(d) take advantage of favourable climatic and solar energy considerations;
(e) have surfaces which are of a low light-reflective nature.
...

9 Outbuildings should :

(a) be ancillary to the rural use of land;
(b) not have a total floor area greater than 100 square metres;
(c) have a height which does not exceed 3.6 metres, from the existing ground level to the top of the ridgeline.
(d) have external cladding or walling material and roof sheeting comprised of new materials or used materials where the soundness and uniform appearance of the materials is not in any way damaged or holed and its painted in a uniform colour.
...

19 By its terms Principle 9 establishes, inter alia, guidelines for the height and total floor area for outbuildings. Principle 16 lists a domestic outbuilding a complying use in the Zone subject to compliance with, inter alia, the conditions prescribed in Table PtPi/1. That table sets out specific and measurable conditions to be met including:

2. Having a maximum floor area of 54 square metres.
3. Having a maximum height to eaves of 3.0 metres.

20 These and other numerical guidelines, on their face, play a part in establishing the desired character for and meeting the objectives of the Zone.
21 The subject land is also within Policy Area 8 (Port Pirie Country Living) of the Zone ("the Policy Area"). Principle 3 for the Policy Area is relevant insofar as it establishes the desired setback of a building of 25m from a road boundary. Broadly speaking there is no conflict between the policy intent of the Zone or Policy Area.
22 Also of relevance is the introductory text to the Policy Area. I noted earlier that the rear boundary of the subject land is the boundary between the Zone and the Residential Zone. The introductory text says, inter alia,

...This policy area provides for country living on smaller allotments and provides an attractive transition between the urban area of Port Pirie and the rural region.
(emphasis added)

23 The planning purpose behind the introductory text appears to be echoed in Zone Principle 2.
24 When applying such a policy intent it is relevant to have regard to the provisions for the adjoining Zone. I have done so.
25 Council Wide Principles 190, 191 and 192 are also relevant in the assessment.

...

190 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.
191 Building development should be located and designed in respect of its:
(a) height;
(b) size;
(c) colour;
(d) form;
(e) siting;
(f) architectural style; and
(g) materials of construction,
to harmonize with conditions desired as indicated by the objectives or principles of development control for the zone, in which it is situated or otherwise, the predominant character of other buildings in the locality.
192 Buildings and other structures should be of a high standard of design with particular emphasis on the external appearance and siting of buildings so as to blend with, preserve and enhance the character and amenity of the locality.
...

26 Council Wide Principle 39, referred to by Mr Williams in his statement, on my reading is intended to cover much the same ground as Principle 191.

Locality

27 Mr Williams, in his statement of evidence (Exhibit R2), defined a locality for the purposes of his assessment of the proposed development. The area so defined includes all of the land within the residential scheme referred to above. On my observation his locality is appropriate. It contains development that typifies the character of land in the vicinity of the subject land and, as importantly, that part of its character that is made up of outbuildings. By virtue of Zone Objective 3 and Principles 190, 191 and 192 above it is necessary in the assessment to take into account the character of the locality within which new development is proposed.
28 The following extracts from Mr Williams’ statement are relevant in describing the character of development in the locality:

The subject locality is characterised by large rural living allotments that are either vacant and yet to be developed, allotments in the process of being developed with large single storey detached dwellings and outbuildings, allotments with recently completed dwellings, outbuildings and landscaping or allotments developed with just an outbuilding. Of the thirty-eight residential allotments within the estate, eighteen (18) allotments contain dwellings and outbuildings that are either completed or under construction, fourteen (14) allotments are vacant, and six (6) allotments have only outbuildings constructed on the land. The locality appears to be mostly flat land.
...
There are very few large, established trees or bushes within the locality. This is due to the locality being previously used for cropping purposes prior to the land being divided into Rural Living allotments. The only clusters of established trees within the locality are those that run the length of the road reserve between the edge of Port Broughton - Port Pirie Road and the service road. There are also half a dozen established trees located on the southern side of Pelham Road between the roads intersections with Casuarina Drive and Port Broughton – Port Pirie Road. These trees however are not clustered together and are spread across a reserve area between the road and the estate.
A large reserve of approximately 6000 metres square is also located within the locality and is situated adjacent to a bend in Casuarina Drive. The reserve contains an open storm water drain. The reserve has also had no trees or recreational infrastructure established within its boundaries.
...

29 Later in his statement Mr Williams said of the proposal in respect of development in the locality:

...
The construction of the roof between both sheds will make the consolidated building appear considerably larger than other outbuildings in the locality. This is because both the Development Plan and the LMA restrict the size of outbuildings. Twenty one (21) development applications for outbuildings have been approved by Council within the Glynde Estate locality. Of those applications, no outbuilding has had a floor area greater than 135 square metres.
...

30 In the main I concur with Mr Williams observations. However, it is of some relevance that the two outbuildings on the land adjoining to the south of the subject land have the appearance of being joined by a fence that appears to be about 2m high. Although the buildings still appear as separate structures the fence, when viewed from the west, conceals portion of the open area between them. I have taken this exception into account.

Assessment

31 Whether the proposed development has had sufficient regard to the above provisions within the context of all relevant circumstances is the central issue in these proceedings. The terms of the Plan are not mandatory. They are, in the end, guidelines to be weighed and considered along with other relevant factors. For the reasons set out below, the terms of the LMA are relevant considerations as is the extent to which the proposal is conducive to the desired character for the Zone and Policy Area.
32 Before proceeding, it is necessary to deal with the term "total floor area", which term appears in Principle 9 and for which there is a definition in Schedule 1 of the Development Regulations 1993. Mr Howell, who appeared for the Appellant, submitted that the definition, properly constructed and applied in the circumstances, leads to the conclusion that the total floor area of the proposed building would exclude the area under the proposed roof. The inference to be taken from his submissions is that the floor area for the new single building is no different from that which now applies to the two existing buildings. Thus Principle 9(b) remains satisfied.
33 The First Schedule of the Development Regulations 1993 defines "total floor area" thus:

"total floor area" with respect to a building or other roofed area means the sum of the superficies of horizontal sections thereof made at the level of each floor, inclusive of all roofed areas and of the external walls and of such portions of any party walls as belong to the building:

34 I agree with Mr Howell that, the definitions lack clarity. However I do not concur with his submission. He said, in effect, that a building falling within its ambit must comprise or be defined by both a roof and a wall. In other words, if a building (or, in this instance, a part of a building) – no matter its length, width, height, scale and mass – has no walls, it cannot be properly the subject of evaluation against the term "total floor area" as defined.
35 Construed in such a way would make no sense in planning terms. It would exclude application to many structures referred to in Development Plans that may require assessment having regard to the amount of land or airspace occupied by the cumulative total of floors and roofed areas.
36 I reject his submissions. For the purposes of assessment in this instance the area under the roof of the entire building that results from the proposal is the "total floor area".
37 If the assessment is confined to the numerical provisions of the Plan, the single building that results has a floor area well in excess of that urged by Principle 9(b). Being 2.5 times the total floor area guideline in that principle, the proposed development could not be said to exceed this provision by a small or insignificant amount.
38 That said, a factor when considering the extent to which the proposal might exceed the stated guidelines in the Plan without detriment to its intent is the terms of the LMA and the effect that the implementation of the LMA has on the character of the locality. I accept the evidence of Mr Williams and the submissions of Mr Billington that the guidelines in the LMA have, by de facto, become (in part) the planning guidelines for development and thus a factor in establishing the desired character for this part of the Policy Area.
39 On my observation, a building or buildings each with a total floor area not exceeding 135m² are commonplace in the locality. They, along with the dwellings on each allotment form the basis of the locality’s character. Within the locality, where two outbuildings are placed on land, they remain separated such that they are viewed as independent buildings. That aspect of the character I consider important in the assessment.
40 In these circumstances, and in light of the several Council Wide Principles cited above, the extent to which the proposed development harmonises with and enhances the existing character is question of considerable importance. The LMA, in my view, has had the effect of diminishing the role that Principle 9(b) plays as a guideline to assist in attaining the Objectives for the Zone. Other aspects of Principle 9 however are not so diminished. However, having given careful consideration to all of the circumstances that gave rise to these proceedings and the various aspects that make up the character and amenity of the locality, I have concluded that the addition of the proposed roof – effectively merging two outbuildings into a single large structure – conflicts to an unacceptable extent with Council wide Principles 39, 190, 191 and 192. In my view its floor area of 245m², its continuous length of roof of 27.24m and roof height of 4.8m creates a building mass and proportion quite uncharacteristic of others in the locality (and well in excess of the terms of Item 5 of the LMA). In so concluding I have taken into account the (visual) effects occasioned by the "break" in the building under the proposed roof and its location in respect of the road boundary.
41 I observed earlier that the proposed development is adjacent the adjoining Residential Zone. Although I do not place particular weight on the point, the proposed building – because of its mass and prominent position in respect of its rear (western) boundary –will not provide an appropriate or attractive transition between the future urban area (the Residential Zone) and the Policy Area and Zone. In this respect the proposed development is in conflict with the introductory text for the Policy Area and Principle 2 for the Zone.
42 In summary the proposal, properly characterised, exceeds by an unacceptable amount the clearly expressed guideline (Principle 9(b)) for the floor area of outbuildings in the Zone. It is a fact that the incidence of outbuildings having a floor area in excess of the above guideline is quite common. However, in all cases the departures can be explained by the terms of the LMA. The LMA is more permissive than Principle 9 in respect of floor area. Whether the tension between Principle 9(b) and the LMA is an appropriate footing upon which the Council undertakes its planning responsibilities under the terms of the Plan is not in question here. It is clear, however, that there are few, if any, circumstances on the subject land or within the locality that would render redundant the intent and purpose of Item 2.8 of the LMA or Item 5 of its First Schedule.
43 It follows that the LMA, in practical terms, is a planning instrument for consideration when assessing a development of the nature proposed. It limits the extent to which, in this instance, and outbuilding might depart from the intent of the Plan. The more the floor area of an outbuilding exceeds the terms of the LMA the greater would be its departure from the numerical guidelines in the Plan and the less likely will it contribute to the stated objectives of the Plan. By virtue of its implementation the LMA has also established a particular and consistent character against which new development such as that proposed should be assessed. As I have said it stands in conflict with relevant principles such as Principles 39, 190, 191 and 192.
44 For these reasons the appeal is dismissed and the Council’s reasons to refuse consent confirmed. There will be an order to that effect.

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4	By application dated 12 February 2007, Mr Oehms applied for Development Plan Consent to construct a roof over the 3m gap between the two outbuildings. The roof, because of the method of construction, relies entirely on the two end walls of the existing outbuildings for support. The pitch of the roof is identical to that approved for the two outbuildings.
5	By decision notification dated 9 May 2007 the Council advised Mr Oehms that consent had been refused. Mr Oehms appealed to this Court and the matter proceeded to hearing.
6	To characterise the proposed development as a "roof" or a "roof between two existing sheds" as appears variously in Exhibit R1 is not incorrect but does, unintentionally, mask the true nature of what is proposed. The roof adjoins the two outbuildings. As a consequence, the structure to all intents and purposes would have the appearance of a single large outbuilding.
7	In the assessment of a retrospective application for consent, the Court must not allow the presence of an unauthorised building or use of land or the facts and circumstances that led to that state of affairs to intrude on its considerations. (Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321). However, I do not think that the decision of the Supreme Court in that matter would limit the use of Exhibit A2, for example, to assist the Court gaining an understanding of the nature of what is "proposed". Exhibit A2 comprises a series of (recently taken) photographs of the existing outbuildings and the proposed roof. The various photographs in Exhibit A2 clearly demonstrate how the adjoining of the two buildings by the roof acts to form a single outbuilding.
8	The proposal is thus "a roof between two existing outbuildings constructed in a manner such as to create a single outbuilding measuring 27.24m long, 9m wide and 4.8m high (to the ridge)". The floor area of the structure when measured under the entirety of the roof is 245.16m².

10	To his credit Mr Oehms said in evidence that he was, at the time of purchasing the subject land, aware of the LMA and understood its terms.
11	Mr Williams, a planner in the employment of the Council, said in evidence that he placed some weight on the above terms of the LMA when forming his opinion on the proposed development.
12	Both parties made submissions about the relevance of the LMA in these proceedings.
13	Part 5 of the Development Act 1993 and, more particularly, s 57 establishes the means by which a Council may enter into an LMA with the owner of land. By its terms s 57(12) provides a discretion to a relevant authority and thus this Court to take into account the terms of an LMA.

15	The relevant Development Plan for Port Pirie (RC) is the version dated 25 January 2007 ("the Plan").
16	The subject land is depicted in the Plan on Map PtPi/13. It is within the Rural Living Zone ("the Zone"). The rear boundary of the subject land is also the boundary between the Zone and the Residential Zone.
17	There are four objectives for the Zone. Objectives 1-3 inclusive are relevant considerations.

20	These and other numerical guidelines, on their face, play a part in establishing the desired character for and meeting the objectives of the Zone.
21	The subject land is also within Policy Area 8 (Port Pirie Country Living) of the Zone ("the Policy Area"). Principle 3 for the Policy Area is relevant insofar as it establishes the desired setback of a building of 25m from a road boundary. Broadly speaking there is no conflict between the policy intent of the Zone or Policy Area.
22	Also of relevance is the introductory text to the Policy Area. I noted earlier that the rear boundary of the subject land is the boundary between the Zone and the Residential Zone. The introductory text says, inter alia,

23	The planning purpose behind the introductory text appears to be echoed in Zone Principle 2.
24	When applying such a policy intent it is relevant to have regard to the provisions for the adjoining Zone. I have done so.
25	Council Wide Principles 190, 191 and 192 are also relevant in the assessment.

31	Whether the proposed development has had sufficient regard to the above provisions within the context of all relevant circumstances is the central issue in these proceedings. The terms of the Plan are not mandatory. They are, in the end, guidelines to be weighed and considered along with other relevant factors. For the reasons set out below, the terms of the LMA are relevant considerations as is the extent to which the proposal is conducive to the desired character for the Zone and Policy Area.
32	Before proceeding, it is necessary to deal with the term "total floor area", which term appears in Principle 9 and for which there is a definition in Schedule 1 of the Development Regulations 1993. Mr Howell, who appeared for the Appellant, submitted that the definition, properly constructed and applied in the circumstances, leads to the conclusion that the total floor area of the proposed building would exclude the area under the proposed roof. The inference to be taken from his submissions is that the floor area for the new single building is no different from that which now applies to the two existing buildings. Thus Principle 9(b) remains satisfied.
33	The First Schedule of the Development Regulations 1993 defines "total floor area" thus:

34	I agree with Mr Howell that, the definitions lack clarity. However I do not concur with his submission. He said, in effect, that a building falling within its ambit must comprise or be defined by both a roof and a wall. In other words, if a building (or, in this instance, a part of a building) – no matter its length, width, height, scale and mass – has no walls, it cannot be properly the subject of evaluation against the term "total floor area" as defined.
35	Construed in such a way would make no sense in planning terms. It would exclude application to many structures referred to in Development Plans that may require assessment having regard to the amount of land or airspace occupied by the cumulative total of floors and roofed areas.
36	I reject his submissions. For the purposes of assessment in this instance the area under the roof of the entire building that results from the proposal is the "total floor area".
37	If the assessment is confined to the numerical provisions of the Plan, the single building that results has a floor area well in excess of that urged by Principle 9(b). Being 2.5 times the total floor area guideline in that principle, the proposed development could not be said to exceed this provision by a small or insignificant amount.
38	That said, a factor when considering the extent to which the proposal might exceed the stated guidelines in the Plan without detriment to its intent is the terms of the LMA and the effect that the implementation of the LMA has on the character of the locality. I accept the evidence of Mr Williams and the submissions of Mr Billington that the guidelines in the LMA have, by de facto, become (in part) the planning guidelines for development and thus a factor in establishing the desired character for this part of the Policy Area.
39	On my observation, a building or buildings each with a total floor area not exceeding 135m² are commonplace in the locality. They, along with the dwellings on each allotment form the basis of the locality’s character. Within the locality, where two outbuildings are placed on land, they remain separated such that they are viewed as independent buildings. That aspect of the character I consider important in the assessment.
40	In these circumstances, and in light of the several Council Wide Principles cited above, the extent to which the proposed development harmonises with and enhances the existing character is question of considerable importance. The LMA, in my view, has had the effect of diminishing the role that Principle 9(b) plays as a guideline to assist in attaining the Objectives for the Zone. Other aspects of Principle 9 however are not so diminished. However, having given careful consideration to all of the circumstances that gave rise to these proceedings and the various aspects that make up the character and amenity of the locality, I have concluded that the addition of the proposed roof – effectively merging two outbuildings into a single large structure – conflicts to an unacceptable extent with Council wide Principles 39, 190, 191 and 192. In my view its floor area of 245m², its continuous length of roof of 27.24m and roof height of 4.8m creates a building mass and proportion quite uncharacteristic of others in the locality (and well in excess of the terms of Item 5 of the LMA). In so concluding I have taken into account the (visual) effects occasioned by the "break" in the building under the proposed roof and its location in respect of the road boundary.
41	I observed earlier that the proposed development is adjacent the adjoining Residential Zone. Although I do not place particular weight on the point, the proposed building – because of its mass and prominent position in respect of its rear (western) boundary –will not provide an appropriate or attractive transition between the future urban area (the Residential Zone) and the Policy Area and Zone. In this respect the proposed development is in conflict with the introductory text for the Policy Area and Principle 2 for the Zone.
42	In summary the proposal, properly characterised, exceeds by an unacceptable amount the clearly expressed guideline (Principle 9(b)) for the floor area of outbuildings in the Zone. It is a fact that the incidence of outbuildings having a floor area in excess of the above guideline is quite common. However, in all cases the departures can be explained by the terms of the LMA. The LMA is more permissive than Principle 9 in respect of floor area. Whether the tension between Principle 9(b) and the LMA is an appropriate footing upon which the Council undertakes its planning responsibilities under the terms of the Plan is not in question here. It is clear, however, that there are few, if any, circumstances on the subject land or within the locality that would render redundant the intent and purpose of Item 2.8 of the LMA or Item 5 of its First Schedule.
43	It follows that the LMA, in practical terms, is a planning instrument for consideration when assessing a development of the nature proposed. It limits the extent to which, in this instance, and outbuilding might depart from the intent of the Plan. The more the floor area of an outbuilding exceeds the terms of the LMA the greater would be its departure from the numerical guidelines in the Plan and the less likely will it contribute to the stated objectives of the Plan. By virtue of its implementation the LMA has also established a particular and consistent character against which new development such as that proposed should be assessed. As I have said it stands in conflict with relevant principles such as Principles 39, 190, 191 and 192.
44	For these reasons the appeal is dismissed and the Council’s reasons to refuse consent confirmed. There will be an order to that effect.