RICHARDS v CITY OF MITCHAM [2009] SAERDC 1 (15 January 2009)

Last Updated: 19 January 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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RICHARDS v CITY OF MITCHAM

[2009] SAERDC 1

Judgment of Commissioner Hodgson

15 January 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for community title division of existing allotment to create a second allotment - refused by Council - whether land suitable for a use envisaged by relevant Development Plan provisions - tension between provisions - characteristics and location of land render it potentially suitable for group dwelling development - appeal upheld and Development Plan and Land Division Consent granted, subject to conditions.

Development Act 1993; Community Titles Act 1996, referred to.

Wright v City of Mitcham SAERDC 132 of 2003; City of Port Adelaide Enfield v Moseley [2008] SASC 88, considered.

RICHARDS v CITY OF MITCHAM
[2009] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by LR and CJ Richards (“the Appellants”) against the decision of the City of Mitcham (“the Council”) to refuse to grant Development Plan Consent to Development Application No. 080/879/2007, which application was for a community title division of land located at 33 Adey Road, Blackwood. The Decision Notification Form issued by the Council gave its reasons for refusal as follows:

(1) The proposed development is at variance to [sic] zone Principal [sic] of Development Control 3. The proposal does not meet the minimum allotment size requirements.

2. Some relevant details follow:

Registration Date of Application	18 June 2007
Subject Land Address	33 Adey Road, Blackwood (Lot 114 in Deposited Plan 1320, Certificate of Title Volume 5359 Folio 496)
Existing Use	Detached dwelling
Proposal	Community Title Land Division to create one additional allotment with a common driveway
Relevant Authority	City of Mitcham
Relevant Development Plan	Mitcham (City) consolidated 22 September 2005
Relevant Zone	Residential (Hills) Zone
Date of Decision	13 September 2007
Appeal Lodged	25 October 2007
Conference Concluded	14 February 2008

3. The Court viewed the subject land and the locality in the company of the parties at the commencement of the hearing. Sworn evidence in this matter was given by two qualified and experienced planning consultants, Mr A Rumsby and Mr R McBryde.

The Subject Land

4. The subject land is situated within the Residential (Hills) Zone depicted on Map Mit/20 in the Development Plan for the City of Mitcham dated 22 September 2005. The land is regular in shape, with a frontage of 30.48 metres to the eastern side of Adey Road, a depth of 67 metres and an overall area of some 2042.16 square metres. The land is currently occupied by a single storey cream brick and grey concrete-tiled bungalow which appears to date from the 1950s or early 1960s. The dwelling is set back approximately 9 metres from the frontage, and has a single carport on its northern side under the main roof of the dwelling and an associated driveway to the street. Several small outbuildings and an in-ground swimming pool are located to the rear of the dwelling. The subject land is relatively flat, having an overall gradient from northeast to southwest of approximately 1:20. A number of tall trees are situated in the rear garden, including one Eucalypt near the southern side boundary, three Pine trees near the south-eastern rear boundary, two Ash trees near the north-eastern boundary and another Ash tree abutting the southern boundary to the west of the Eucalypt. It was common ground between the parties that none of the trees on the subject land were “significant” as that term is used in the Development Plan.

The Locality

5. The locality as defined respectively by Mr Rumsby and Mr McBryde, for the purpose of their evidence, differed markedly. Mr McBryde’s locality extended four allotments north of the subject land, taking in properties on both sides of Adey Road, and three allotments south, again taking in allotments on both sides of Adey Road. His locality also included the Blackwood Hills Baptist Church complex, which is situated to the immediate east and southeast of the subject land. Mr Rumsby’s locality extended considerably further north, including development on all four quadrants of the junction of Simla Parade and Adey Road, and a similar distance south, taking in development on the western side of Adey Road between Garnet and Mimosa Avenues, and the Hewett playing fields on the eastern side of Adey Road. Mr Rumsby’s locality also included development on both sides of Coromandel Parade to the east of the subject land, included that portion of Coromandel Parade extending roughly the same distance north and south of the subject land as did the rest of Mr Rumsby’s locality. The land is little over one kilometre south of Shepherds Hill Road and the southern margins of the Blackwood District Centre. To the immediate east of the subject land is the Blackwood Hills Baptist Church complex (formerly an indoor recreation centre) with associated hard stand and carparking areas.
6. In terms of the area of influence and likely impact of the proposed development, I have decided that the more restricted locality defined by Mr McBryde is more appropriate for the purposes of these proceedings. That locality largely consists of an eclectic mix of predominantly single-storey brick dwellings on relatively large allotments, with spacious building setbacks from front, side and rear boundaries. Most dwellings appear to date from the 1950s and appear to be well maintained. Mature landscaping of frontages and side and rear boundaries collectively contribute to a high level of amenity, notwithstanding the age of the dwellings. At 29 Adey Road is a two-storey dwelling of flat roof design set in large landscaped grounds.
7. Abutting the eastern and southern boundaries of the subject land, as I have previously mentioned, is the Blackwood Baptist Church, situated at 70-72 Coromandel Parade. This is the only non-residential development in the locality and occupies three allotments, two fronting Coromandel Parade and one abutting the southern boundary of the subject land. The principal church building comprises a very large, tall and bulky red brick building, which is flat roofed with parapets approximately 10.2 metres in height at its southern end, approximately 6.7 metres in height at its northern end and approximately 3.3 metres high in the centre section on the western elevation. The allotment abutting the southern boundary of the subject land contains a sealed carpark with 26 parking bays, set amongst tall trees. Access to the carpark is obtained from Garnet Avenue at the rear of the church building. A portion of the western elevation of the main church building is set approximately 1.8 metres from the abutting eastern boundary of the subject land and runs for a length of approximately 20.3 metres, commencing at a point some 5.5 metres from the southern boundary alignment of the subject land.
8. Allotment sizes in the locality vary considerably, although most are in excess of 1,000 square metres. An attachment to Mr McBryde’s statement of evidence, compiled from Mitcham Council records, showed allotment sizes in his locality ranging from 1,115 square metres to 2,739 square metres in Adey Road, 945 square metres to 1,873 square metres in Garnet Avenue, 571 square metres to 2,086 square metres in Simla Parade, and 790 square metres to 1,869 square metres in Coromandel Parade.
9. The only “hammerhead” shaped allotment in the locality is at 68A Coromandel Parade, which is part of the rear northern section of the side boundary of the subject land. 68A has a land area of 1,297 square metres, including the driveway access, while 68A Coromandel Parade, which is the balance of the original land from which 68A was divided, has an area of 1,209 square metres. The remaining allotments in the locality are of a regular shape. With the exception of the Blackwood Baptist Church and the Hewett Recreation Reserve, all development within the locality is in the form of detached dwellings.

The Proposal

10. The proposed division would result in two allotments, together with common property. Proposed Lot 100 would have an area of 893 square metres, and would include the whole of the curtilage of the dwelling at 33 Adey Road, together with an existing masonry shed, roofed and shelter abutting the in-ground pool and a metal clad garden shed. Proposed Lot 101 would have an area of 930 square metres, and be located to the rear of Lot 100, comprising the whole of the rear garden area including the in-ground pool and most of its decked surrounds. The common property would be a rectangular area, measuring 6 metres by 36.5 metres, along the southern side boundary, and having a total area of 219 square metres. A 7 metre long extension of the common property strip is shown within proposed Lot 101 as a right of way in favour of proposed Lot 100, to allow for vehicles to back from the car parking area and exit the internal driveway in a forward direction.
11. The proposal also includes removal of the existing driveway and crossover and construction of a new driveway and crossover within the common property, conversion of an existing carport to a covered outdoor area, and conversion of a pergola to service the carport and visitor parking area. Included in Mr Rumsby’s statement of evidence was a concept plan showing a possible 200 square metre building envelope on proposed Lot 101 and likely access and car parking arrangements. Mr Rumsby was of the view that “it is highly likely that the in-ground pool will ... need to be removed/relocated in order to accommodate the most orderly and efficient use of the land, contrary to the notation placed on the plan of division.”

The Development Plan

12. As I have noted, the subject land is located within the Residential (Hills) Zone. The sole objective for that zone is as follows:

Objective 1 Development comprising detached dwellings on large allotments that maintains and enhances the natural vegetation and features of the Mount Lofty Ranges.

13. The Desired Character for the Zone expands on the above objective:

... the area has developed a unique character typified by generally large to very large allotments mainly accommodating detached dwellings, thus resulting in a very high open space to built-form ratio. This has enabled many areas to remain relatively densely vegetated and the area as a whole to maintain a distinctive natural character.
Sub-division of land and the development of housing have occurred over a long period of time. This, together with the physical constraints of the land, has resulted in a diverse range of sub-division patterns, housing development and streetscapes that together contribute to the area’s overall low-density and highly landscaped character. For example, some areas have developed in a traditional grid pattern with straight roads and regular dwelling set-backs representing a relatively formal pattern of development. Other areas have developed with winding roads, irregular allotment patterns and a much less formal streetscape dominated by open spaces that have been left in a more natural or random state...
It is desirable that the existing open and landscaped character of land within the zone be retained. Creation of new residential allotments that are substantially smaller than existing allotments could potentially dramatically alter the essential elements that comprise the existing character, through the removal of significant amounts of vegetation, alterations to land form, and impacts on creeks and drainage lines. Such development should therefore not occur. This is particularly relevant in the bushfire prone area and any development in this area should be carefully assessed and if necessary restricted to ensure the overall character of the zone is maintained.

14. Relevant Zone Principles are:

PRINCIPLES OF DEVELOPMENT CONTROL
Form of Development

1. Development should be in accordance with the objective and desired character of the zone.
2. Land division creating a “hammerhead” or similar shaped allotment should only be undertaken where

(a) the area of the allotment - exclusive of the portion of commonly referred to as the “handle” (that portion which is intended to be used primarily for access only) - is not less than that set out in principle of development control numbered 3 of this zone;
(b) where the main portion of the allotment has a frontage or outlook to adjoining open space, a creekline, or other land with an open or natural character; and
(c) that portion of the hammerhead allotment which is intended to be used primarily for access (ie the "handle") is not less than six metres wide at any point.

3. Sites for detached dwellings and land division creating residential allotments should satisfy the following minimum site dimensions applicable to the gradient of each proposed site -

Gradient of Site Minimum Width of Site Minimum Area of Site
(metres) (square metres)
1:8 or less 12 1200
between 1:8 and 1:4 21 1500
greater than 1:4 30 2000

4. Sites for group dwellings should comply with the following minimum site dimensions.

Gradient of Site Minimum Area of Site (square metres)
1:8 or less 700
between 1:8 and 1:4 1200
greater than 1:4 1600

5. Semi-detached dwellings and residential flat buildings comprising two dwellings should only be developed on sites where:

(a) the gradient is less than 1:8
(b) each dwelling site area is greater than 600 square metres
(c) each dwelling site has a minimum road frontage of 11metres
Siting and Design

6. Development should be designed and sited to relate to the slope of the land and the natural character of the area so that:

(a) the bulk and scale of buildings respond to, rather than dominate, the natural landscape
(b) existing vegetation that contributes to the character of the area is retained wherever reasonably possible.
(c) the natural drainage characteristics of the land are retained and all creek and drainage lines are maintained in a natural state.
(d) landscaping incorporating trees and shrubs of primarily indigenous species is provided to reduce the visibility, bulk and scale of buildings and structures.
(e) cutting and filling of the natural ground profile is obscured from view by existing vegetation wherever possible and softened by new planting;
(f) the need for retaining walls is avoided, or if retaining walls are necessary their height is minimised and they are screened by existing vegetation wherever possible and suitably landscaped;
(g) the use of bright and highly reflective external materials and finishes is avoided on buildings and structures that are prominently visible from roads, reserve areas or other public places;
(h) the extent of any vegetation clearance required for bushfire protection will not significantly detract from the natural character and appearance of the locality.

15. Council Wide Development Plan provisions of particular relevance are:

Objectives 5, 14, 15, 16 and 17.

Principles 16, 17, 19, 21, 22, 28(a)(ix), 43-45, 48, 50, 52-54, 57 and 58.

The Evidence

16. On the basis that the proposed division was able to accommodate a dwelling of up to 200 square metres with associated parking and landscaping on proposed Lot 101, and that the existing dwelling would retain an area for undercover vehicular parking and “a substantial and functional open outdoor living area”, Mr Rumsby concluded as follows:
    • the proposal to be [sic] in substantial accord with the desired character, the dwellings being detached in nature and in accord with the prescribed minimum site areas as well as the prevailing and variable site areas;
    • the large and wide site area of the subject land readily accommodates the proposed access driveway and supports future dwelling sites, and modification to the existing site without impacting on its streetscape nor materially impacting on the characteristic or desired features of the Zone;
    • the proposed pattern of land settlement does not intrude upon its residential and church neighbours there being a considerable open public, and semi-public, aspect to the south of the subject land;
    • the proposed group dwelling sites meet the reasonable future needs, and the desired amenity and liveability for future occupiers as is expected under the Zone and Development Plan provisions; and
    • given the particular features of the subject land and its surrounding sites, the varied allotment pattern and size of residential allotments generally within this part of Blackwood, I consider the proposal to be in suitable accord with the Zone provisions (if not its objective 1) and, also with the Development Plan, as a whole,

and as such to merit a Development Plan consent.

17. Mr McBryde did not share this view. His statement of evidence, under the heading “Conclusions”, included the following:

The proposed land division will incrementally commence undesirable change in the established character, which is currently in accord with the relevant Zone provisions and the Desired Character Statement ... in particular, the land division is in conflict with Objective 1, the Desired Character Statement and PDC’s 1, 2 and 3 of the Residential (Hills) Zone for reason of:

• proposing a land division for group dwellings, contrary to the intent of Objective 1 and PDC 1 to provide for detached dwellings;
• being in conflict with the open low density natural character contemplated by the Desired Character Statement;
• not complying with the site area requirements of PDC 3 for detached dwellings, contrary to the direction of PDC 2(a); and
• including a hammerhead allotment, contrary to the circumstances contemplated by PDC 2(a) ... .

... there appears to be no compelling reason why the established and desired character should be disturbed by this proposal. I consider that the proposal will detract from the established and desired character contrary to the relevant provisions of the Development Plan ..., will increase the pressure on the existing vegetation for removal in order to site a new dwelling and driveway access and diminish the opportunities for replacement landscaping, due to the small allotment areas being created compared with the existing allotment pattern with high open space ratio to low built-form development.

Assessment

18. Mr Duncan, for the Respondent Council, submitted that the subject proposal was “contrary to the spirit, intent and desired character for the Residential (Hills) Zone”, and therefore did not warrant consent. In support of this submission he referred to the evidence of Mr McBryde, and to the decision of this Court in Wright v City of Mitcham SAERDC 132 of 2003, a matter involving land in the same zone, and one street away.
19. Mr Duncan acknowledged the tension between Zone Principles 2 and 3 and Zone Principle 4, the latter appearing to countenance group dwellings with the associated “hammerhead” type allotments, the former speaking against them, but submitted that the Residential (Hills) Zone was the only zone in the Council area in respect of which there were Development Plan policies speaking against “hammerhead” type land divisions in other than limited circumstances. With reference to the opinion, expressed by Mr Rumsby in evidence, that the subject proposal could not be characterised, for the purposes of Zone Principle 2, as a “hammerhead” allotment, Mr Duncan submitted that, while the form of division proposed, under the Community Titles Act 1996, would not result in the driveway forming part of the title of the rear allotment, the physical effect of the proposal would be exactly the same as if a hammerhead allotment had been created i.e. one allotment to the rear of another, with a driveway which constituted the only access to the rear allotment.
20. Mr Duncan further submitted that the small number of “hammerhead” and smaller allotments in the locality could not be called in support of the subject proposal, as their approval pre-dated the current zoning, which seeks retention of a character primarily created by detached dwellings from large, well-vegetated allotments. In any event, such allotments were not sufficiently prevalent as to affect the character and amenity of the locality adversely. Should the subject proposal be approved, Mr Duncan submitted, it would be difficult for the Council to refuse an application for Torrens Titles to both allotments, once the dwelling had been constructed on the rear site.
21. Mr Hilditch, for the Appellant, with specific reference to the latter submission, referred to the decision of the Supreme Court in City of Port Adelaide Enfield v Moseley [2008] SASC 88 in support of his submission that it was entirely appropriate for a land division proposal to precede the actual development of the subject land. In his decision in that matter, Debelle J held as follows:

A planning authority must ... be able to ascertain the land intended for development when performing its duty under Regulation 16 to determine the nature of the development. That is one reason why the planning authority is entitled to know whether an allotment will be dedicated to the use proposed. More importantly, the question whether an allotment should be divided in a particular way should, as a matter of planning principle, if not also as a matter of common sense, be determined before any development upon that land has taken place. Good town planning requires land to be divided in an appropriate manner consistent with relevant planning principles. Logically, the division of land comes before the approval of any development of the land. If a development is approved before the approval of the land division, it has a real potential to put undesirable constraints upon a planning authority considering whether it is proper to grant consent to the proposed land division. If that is not the position, there is a real potential for undesirable development.

22. Mr Hilditch further submitted that, while much of the land within the Residential (Hills) Zone comprised rugged well-vegetated terrain and/or bushfire-prone land, the subject land had a number of natural advantages:

(a) it was relatively flat;

(b) it was abutted by a large church building on one side and an open car park on another;

(c) it was not in the bushfire-prone area; and

(d) there was a natural clearing on the rear allotment which created a site for a dwelling without the need for clearance of existing vegetation.

23. While the Development Plan provisions for the Residential (Hills) Zone placed emphasis on the retention of a character created by detached dwellings on large, well-vegetated allotments, said Mr Hilditch, the same provisions clearly anticipated some land division (Principles 2 and 3) and some medium-density forms of development (Principles 4 and 5). Given that division of steeply-sloping, densely-vegetated and/or bushfire prone land was specifically spoken against by the Desired Character Statement, flatter land, such as that the subject of these proceedings, was the kind of land which lent itself to the forms of medium-density development contemplated by Principles 4 and 5.
24. There is a clear tension between Zone Principles 2 and 3 on the one hand, and 4 and 5 on the other. Having regard to the whole of the Desired Character Statement, there is a particular emphasis on the protection of those parts of the Zone which are steep and heavily-vegetated, or are close to creeks or drainage lines. Particular emphasis is placed on land with the above characteristics which is located within the bushfire-prone area.
25. Zone Principles 8 and 9, taken together, designate group dwellings, semi-detached dwellings and residential flat buildings comprising two dwellings, inter alia, as consent uses within the Zone. Principles 4 and 5 stipulate site areas for such dwellings. It has to be concluded that, subject to satisfying, inter alia, the site area and gradient requirements set out in Principles 4 and 5, land division for group or semi-detached dwellings and residential flat buildings comprising two dwellings is possible within the Zone. Where such land division should occur is largely dictated by Zone Principle 1, which requires development (including land division) to be in accordance with the Objective and Desired Character of the Zone. While the sole Zone Objective refers only to “detached dwellings on large allotments”, a close reading of the Desired Character Statement supports the interpretation, contended for by Mr Hilditch, to the effect that land which is relatively flat, not close to drainage lines or water courses, and not heavily-vegetated, best lends itself to division for the medium-density forms of residential development contemplated by Principles 4 and 5. If that interpretation is adopted, the tension between Zone Principles 2 and 3, and 4 and 5 can be resolved on the basis that Principles 2 and 3 refer to land division for detached dwellings only. Any other interpretation would result in irreconcilable conflict between the principles referred to. I am reinforced in that interpretation by the fact that the site areas stipulated for medium-density forms of residential development by Zone Principles 4 and 5 are significantly larger than those for most, if not all, other residential zones within the city.
26. It follows that the subject proposal, inasmuch as it meets the site area and slope requirements set out in Zone Principle 4, is not heavily vegetated or near a creek or drainage line, and is outside the Zone’s bushfire prone area, is potentially suitable for division for group dwellings. The configuration proposed will result in minimal impact on the established streetscape, existing vegetation, and neighbouring development.
27. Inasmuch as Group Dwellings are contemplated in parts of the Zone, and having regard to the site areas prescribed for such dwellings by Zone Principle 4, it is to be expected that localities with allotments typically at least twice that prescribed minimum site area would be those where such development could occur. Having regard to the other site characteristics earlier referred to, the fact that the locality of the subject land is predominantly characterised by relatively large allotments is not of itself a basis upon which the subject proposal should be rejected.
28. The evidence of Mr Rumsby, including his concept plan for the development of a future dwelling on proposed Lot 101, satisfies me that such development can occur in a manner which is both orderly and consistent with those provisions of the Development Plan relating to the siting and development of dwellings.
29. Having regard to all the above, to all that was put before me, to what I saw on the view and to the relevant Provisions of the Development Plan, I have concluded that the subject land is suitable for a group dwelling development, and therefore that the form of land division proposed is acceptable, subject to appropriate conditions of consent. My conclusion is distinguishable on the facts of this matter from the Court’s decision in Wright, which involved the proposed creation of allotments substantially below the minimum areas prescribed by Zone Principles 3 and 4.
30. In response to a memorandum in the above terms, the parties advised the Court that they had reached agreement as to conditions.
31. The Appeal is upheld. Development Plan Consent and Land Division Consent is granted to Development Application Number 088/879/2007, subject to the following conditions:

Development Plan Consent

(1) The proposal shall be developed in accordance with the details and plans relating to Development Application Number 088/879/2007 except where varied by the following conditions of consent.

Land Division Consent

(2) The financial and augmentation requirements of the SA Water Corporation for the provision of water supply and sewerage services shall be met (SA Water 05237/07).

The internal drains shall be altered to the satisfaction of the SA Water Corporation.

The necessary easements shall be granted to the SA Water Corporation free of cost.

(3) Payment of $3875.00 shall be made into the Planning and Development Fund (1 allotment at $3875.00/allotment). Cheques shall be made payable to the Development Assessment Commission, marked “Not Negotiable”, and payment made at Level 5, 136 North Terrace, Adelaide, or sent to GPO Box 1815, Adelaide, 5001, or via the Internet at www.planning.sa.gov.au.

(4) Two copies of a certified survey plan shall be lodged with the Development Assessment Commission for Certificate purposes.