FRENCH v CITY OF WHYALLA [2010] SAERDC 2 (20 January 2010)

Last Updated: 25 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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FRENCH v CITY OF WHYALLA

[2010] SAERDC 2

Judgment of Commissioner Hamnett

20 January 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a decision to refuse consent to an application to divide an existing residential allotment into two smaller allotments – Residential Zone – whether the proposed development is “infill development” – relevance of information relating to demand for residential allotments in the City of Whyalla – whether the proposal would be “efficient and co-ordinated” development – proposed development found to be likely to lead to dwellings which would not be compatible with adjoining residential development or sympathetic to the dominant housing style in the immediate vicinity.

Appeal dismissed

Development Act 1993; Environment, Resources and Development Court Act 1993, referred to.

S J Salisbury Constructions Pty Ltd v City of Holdfast Bay & Billich [1999] SAERDC 16; Kokkotos v City of Mitcham [2000] SAERDC 13, considered.

FRENCH v CITY OF WHYALLA
[2010] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Background

1. This is an appeal against the decision by the Whyalla Council (“the Council”) to refuse consent to an application to divide an existing allotment into two smaller allotments at 8 Mirambeena Drive, Whyalla.
2. The application (Development Application No. 850/D009/09) was lodged with the Development Assessment Commission on 17 April 2009 by Michael Grear Surveys, on behalf of Brenton and Jo-Anne French (“the Appellants”).
3. The Council notified Mr and Mrs French that their application had been refused by a notice dated 18 June 2009. A number of reasons for refusal were stated. It was said that allotments of the size and shape proposed would encourage infill development unsympathetic to the dominant form and character of housing in the immediate vicinity and inconsistent with the existing pattern of development and desired character for the Residential Zone and the locality.
4. Mr and Mrs French were aggrieved by this decision and appealed to this Court. On 7 September 2009 the Court made an order, pursuant to s 16(3) of the Environment, Resources and Development Court Act 1993, dispensing with the requirement for a conciliation conference, on the grounds that there was no reasonable prospect of a settlement. The matter therefore proceeded to a hearing, at which the Council was represented by Ms C Ryan, of counsel, and the Appellants by Mr S Pitman, of counsel. The Court heard evidence from two qualified and experienced town planners, Mr G Vincent and Mr D Batge. A view of the subject land, the locality and a number of other residential development sites in Whyalla was undertaken prior to the hearing.

The Subject Land

5. The subject land at 8 Mirambeena Drive is formally described as Allotment 24 in Deposited Plan 50594, Certificate of Title Volume 5609, Folio 971, in the Hundred of Randell. This is a vacant rectangular parcel of land with a primary, northern frontage of 23.65 metres to Mirambeena Drive and a depth of 32.97 metres. Mirambeena Drive is a U-shaped street which connects at both ends with Essington-Lewis Avenue. It has a 90 degree bend immediately to the west of the subject land, making it essentially a corner allotment. There is a corner cut-off at the north-western corner of the land. The subject land has an area of 820 square metres. The land slopes from its south-western corner to the north-eastern corner, with a change in level of about 2.5 metres. There is a colorbond fence along the eastern boundary which reaches a height of about 2 metres.

The Locality

6. Mr Vincent defined a locality which included only those properties with a frontage to Mirambeena Drive. Any impacts of the proposed development would be limited to these properties in his opinion. The character of this locality was derived from single-storey detached dwellings on allotments which Mr Vincent assessed as being between 770 square metres and 930 square metres in area. Allotments within the locality were generally regular in shape, with primary frontages of 22 metres to 25 metres wide. Mr Vincent noted that land within the locality rose from north to south and that the properties on higher land had commanding views across the lower northern allotments and beyond to Spencer Gulf.
7. Mr Vincent observed that the allotments adjacent to the subject land at 5, 6 and 15 Mirambeena Drive were currently vacant. He found it relevant to point out that the subject land was some 800 metres from the middle of the Whyalla town centre; 250 metres from the Town Centre Zone boundary; 300 metres from the Whyalla Hospital; and 950 metres from the closest primary and high schools.
8. Mr Batge was also of the opinion that the proposed development would have an impact only on a limited area fairly close to the subject land, but his locality was rather larger than Mr Vincent’s, nevertheless. He noted that the original subdivision which had created Mirambeena Drive also established allotments along Lacey Street and Cottage Place and these were also included in his locality Within this subdivision he observed some 20 recently constructed single-storey detached dwellings and 6 vacant allotments. Allotment frontages along Mirambeena Drive averaged 24.95 square metres by his calculation, with an average lot size of 789 square metres. Mr Batge also included in his locality a large allotment (Lot 28) to the south-west of the Mirambeena Estate where approval had been granted for the development of 17 townhouses in 2007. The general character of the locality in Mr Batge’s opinion was one derived from modern single-storey wide-fronted dwellings, with generous amounts of space around dwellings and, in some cases, reasonably well-established gardens. Mr Batge found the amenity to be relatively high and “one of the most pleasant to be found in Whyalla”. In his opinion its character contrasted with that of older residential areas nearby where the amenity was lower. Mr Batge observed that the Mirambeena Estate appeared to have developed under the influence of an encumbrance which had required development to be in the form of single-storey dwellings meeting certain conditions relating to design, materials and setbacks. An example of a memorandum of encumbrance registered for 8 Mirambeena Drive in 2003 was received by the Court as Exhibit R2. It was Mr Batge’s opinion that these encumbrance requirements, while of no direct relevance to the assessment of the present proposal, were likely to have had some significant influence on the way that the Mirambeena Estate had developed and thus on its current character.
9. I find the boundaries of Mr Batge’s locality to be too widely drawn and prefer the rather smaller locality identified by Mr Vincent, confined as it is to properties fronting Mirambeena Drive. I can see some rationale for extending the locality a little further to include allotments along Lacey Street and Cottage Place, established at the same time as the Mirambeena Estate, but not for extending it as far as Mr Batge did. The character of the locality so defined is one of modern, single-storey wide-fronted detached dwellings, generally well set back from the street on allotments with consistent sizes and proportions. I find the level of amenity along Mirambeena Drive to be fairly high.

The Proposed Development

10. The proposal is to divide the subject land along its longer dimension into two allotments, referred to as Allotment 40 and Allotment 41. Allotment 40 would be a corner allotment of some 408 square metres with two street frontages. Allotment 41 would have an area of 412 square metres and would have a single frontage to Mirambeena Drive. Each allotment would have a width of about 12.6 metres.

Development Plan Provisions

11. The relevant Development Plan is that for Whyalla Council as consolidated on 20 February 2009. The subject land is located within the Residential Zone of that Development Plan.
12. In my opinion the provisions of the Development Plan relevant to this matter are as follows:

Residential Zone Provisions

OBJECTIVES

1 A residential zone comprising a range of dwelling types including affordable housing.

2 Increased dwelling densities in close proximity to centres, public transport routes and public open spaces.

3 Development that contributes to the desired character of the zone.

DESIRED CHARACTER STATEMENT

The development of the residential areas of the City clearly illustrates the evolution of housing in Whyalla from the east to the west which are (sic) set out in ‘rings’ of development. The influence of public housing on the City is evident from the commencement of Housing SA (formally the South Australian Housing Trust) in the 1940’s. In the late 1960’s a private developer, A.V.Jennings commenced building in the City with the layout of the subdivision reflective of the dominant style of the time.

Residential demand slowed in the early 1990’s thus limiting the expansion of the City westwards. Since 2002 the increased confidence in State’s mining and exploration future together with the expenditure on the Steelworks there has been an increased demand for land for residential housing.

To accommodate this demand, infill development is encouraged as well developing (sic) the vacant land zoned residential to the west of the City. Infill development will need to be sympathetic to the dominant housing style in the immediate vicinity in regards to street setbacks and housing design.

PRINCIPLES OF DEVELOPMENT CONTROL

Land Use

1 The following forms of development are envisaged in the zone:

▪ domestic outbuilding in association with a dwelling

▪ domestic structure

▪ dwelling

▪ dwelling addition

...

3 Vacant or underutilised land should be developed in an efficient and co-ordinated manner to increase housing choice by providing dwellings at densities higher than, but compatible with adjoining residential development.

...

6 Development should not be undertaken unless it is consistent with the desired character for the zone.

COUNCIL-WIDE PROVISIONS

Land Division

OBJECTIVES

1 Land division that occurs in an orderly sequence allowing efficient provision of new infrastructure and facilities and making optimum use of existing under utilised infrastructure and facilities.

2 Land division that creates allotments appropriate for the intended use.

3 Land division that is integrated with site features, including landscape and environmental features, adjacent land uses, the existing transport network and the availability of infrastructure.

PRINCIPLES OF DEVELOPMENT CONTROL

1 When land is divided:

(a) stormwater should be capable of being drained safely and efficiently from each proposed allotment and disposed of from the land in an environmentally sensitive manner

(b) a sufficient water supply should be made available for each allotment

(c) provision should be made for the disposal of wastewater, sewage and other effluent from each allotment without risk to health

(d) proposed roads should be graded, or be capable of being graded to connect safely and conveniently with an existing road or thoroughfare.

2 Land should not be divided if any of the following apply:

(a) the size, shape, location, slope or nature of the land makes any of the allotments unsuitable for the intended use

(b) any allotment will not have a frontage to an existing or proposed public road

(c) the intended use of the land would require excessive cut and fill

(d) the intended use, or the establishment of that use, is likely to lead to undue erosion of the subject land or land within the locality

(e) the area is unsewered and cannot accommodate an appropriate wastedisposal system within the allotment to suit the intended development

(f) the intended use of the land would be contrary to the zone objectives

(g) any single allotments are created that sit within more than one zone.

...

4 The design of a land division should incorporate:

(a) roads, thoroughfares and open space that result in safe and convenient linkages with the surrounding environment, including public transport facilities, and which, where necessary, facilitate the satisfactory future division of land and the inter-communication with neighbouring localities

(b) safe and convenient access from each allotment to an existing or proposed public road or thoroughfare

...

6 Allotments should have an orientation, size and configuration to encourage development that:

(a) minimises the need for earthworks and retaining walls

(b) maintains natural drainage systems

(c) faces abutting streets and open spaces

(d) does not require the removal of existing native vegetation to facilitate that development

(e) will not overshadow, dominate, encroach on or otherwise detrimentally affect the setting of the surrounding locality.

COUNCIL-WIDE PROVISIONS

Residential Development

OBJECTIVES

1 Safe, convenient, pleasant and healthy-living environments that meet the needs and preferences of the community.

2 An increased mix in the range and number of dwelling types available including affordable housing within urban boundaries to cater for changing demographics, particularly smaller household sizes and supported accommodation.

3 Higher dwelling densities in areas close to centres, public transport and public open spaces.

PRINCIPLES OF DEVELOPMENT CONTROL

1 Residential allotments and sites should have the appropriate orientation, area, configuration and dimensions to accommodate:

(a) the siting and construction of a dwelling and associated ancillary outbuildings

(b) the provision of landscaping and private open space

(c) convenient and safe vehicle access and off street parking

(d) passive energy design.

...

3 Residential allotments should be of varying sizes to encourage housing diversity.

The following Council Wide Principles of Development Control relating to Residential Development are also of some relevance: Principles 5, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18 and 19.

COUNCIL-WIDE PROVISIONS

Design and Appearance

PRINCIPLES OF DEVELOPMENT CONTROL

...

11 Buildings (other than ancillary buildings or group dwellings) should be designed so that their main façade faces the primary street frontage of the land on which they are situated.

...

16 The setback of buildings from public roads should:

(a) be similar to, or compatible with, setbacks of buildings on adjoining land and other buildings in the locality

(b) contribute positively to the streetscape character of the locality

(c) not result in or contribute to a detrimental impact upon the function, appearance or character of the locality

COUNCIL-WIDE PROVISIONS

Orderly and Sustainable Development

OBJECTIVES

1 Orderly and economical development that creates a safe, convenient and pleasant environment in which to live.

2 Development occurring in an orderly sequence and in a compact form to enable the efficient provision of public services and facilities.

PRINCIPLES OF DEVELOPMENT CONTROL

8 Vacant or underutilised land should be developed in an efficient and co-ordinated manner to not prejudice the orderly development of adjacent land.
The Evidence

13. Mr Vincent’s evidence addressed three main points - whether the proposed land division would be consistent with the desired character for the Residential Zone; whether the allotments created would be capable of being developed for residential development in accordance with the relevant provisions of the Development Plan relating to the design of dwellings; and whether future dwellings on the allotments would be compatible with adjoining residential developments.
14. With regard to the desired character for the Residential Zone, Mr Vincent noted that this anticipated “an increased demand for land for residential housing” and that “infill development” was encouraged as one way of meeting this demand. In his opinion the proposed development represented infill development by creating two allotments from one.
15. Mr Vincent also found support for the proposed development in Objective 2 and Principle of Development Control 3 for the Residential Zone. Objective 2 seeks “increased dwelling densities in close proximity to centres”, while Principle 3 states that “vacant or underutilised land should be developed in an efficient and co-ordinated manner to increase housing choice by providing dwellings at densities higher than, but compatible with adjoining residential development”. Mr Vincent argued that the subject land was in close proximity to the town centre of Whyalla, being 800 metres from the middle of the town centre and 250 metres from the Town Centre Zone boundary. It was also 300 metres from the Whyalla Hospital and less than a kilometre from primary and high schools. In his opinion, therefore, it was an appropriate location for increased dwelling densities.
16. Furthermore, Mr Vincent found that the subject land was currently vacant and was therefore a suitable site for development at a higher density, in accord with Principle of Development Control 3 for the zone.
17. Mr Vincent noted that the Development Plan did not specify any prescribed minimum allotment sizes, except in relation to “battleaxe” allotments which were not proposed here.
18. In order to demonstrate that the proposed allotments could accommodate dwellings consistent with the desired character of the zone and the design provisions of the Development Plan, Mr Vincent prepared a “Building Envelope Plan” which was attached to his statement of evidence. This showed that it would be possible to construct single-storey detached dwellings with up to three bedrooms on each of the proposed allotments. These dwellings could be set back 8 metres from the street, with rear setbacks of 7 metres and side setbacks of 1 metre, apart from garages which would be built to the boundary in Mr Vincent’s indicative example. Mr Vincent noted that side boundary walls were permissible under Council Wide Principle of Development Control 13 (Residential Development) under certain circumstances, although he acknowledged that there were no examples of garages built to a side boundary in his locality at present. This indicative building envelope plan met the private open space requirements set out in Council Wide Principles of Development Control 16-18 (Residential Development) and the site coverage requirements specified in Council Wide Principle of Development Control 15 (Residential Development). Overall, therefore, Mr Vincent was satisfied that the proposed allotments were capable of accommodating dwellings that were sympathetic to and compatible with the style, design and setbacks of dwellings in the immediate vicinity of the subject land with no detrimental effects on the amenity of the locality.
19. Mr Vincent had not included the approved townhouse development at Lot 28 in his locality but, when questioned about this, he agreed that it indicated that Council had been prepared recently to contemplate medium density development close to the subject land. Mr Vincent also noted that the current Residential Zone provisions did not place any limitations on the types of dwellings that might be constructed within the zone.
20. In his evidence Mr Batge also noted the references to increased demand for land for housing in the desired character statement for the Residential Zone, to be met by infill development as well as by “developing the vacant land zoned residential to the west of the City” within the Residential Zone. While the subject land was to the west of the old town centre of Whyalla, the reference to “vacant land zoned residential to the west of the City” was not, in Mr Batge’s opinion, intended to refer to allotments in this locality, but rather to the more extensive areas of vacant residential land at or towards the western fringe of the existing urban area (some of which the Court had seen during the view).
21. Mr Batge did not believe that the proposed land division met the definition of “infill” development either, nor did he think that the subject land was particularly well-located in relation to centres, public transport routes and public open spaces. There was a bus stop about 330 metres from the subject land, the old town centre shops were between 600 metres and a kilometre away and there was a local centre about 650 metres away. There was also an undeveloped public reserve a little way to the south of the subject land. Taken together, however, Mr Batge did not regard these as compelling reasons to support an increase in density through infill in this locality.
22. Mr Batge observed that the desired character sought for the zone was not expressed in any detail and the only specific reference of relevance to the present proposal was to infill development needing to be “sympathetic to the dominant housing style in the immediate vicinity in regards to street setbacks and housing design”. While much of the Residential Zone, especially in older parts of Whyalla, is characterised by fairly basic South Australian Housing Trust dwellings of the early post-war period, Mr Batge’s view was that it was appropriate, in this case, to have particular regard to the higher quality and consistent character of dwellings in the immediate locality of the subject land. Here he found the key elements of character to be street setbacks of at least 7 metres, dwellings with wide fronts of up to 22 metres, and generous spaces around the dwellings which allowed for significant landscaping.
23. Mr Batge acknowledged that the proposal was simply for land division consent and that matters of detailed dwelling design and form would be considered separately, as and when a subsequent application to construct dwellings was submitted. However, it was his opinion that the proposed allotments would be significantly different from those already established on the Mirambeena Estate and that this would have consequences for the design of future dwellings. The Mirambeena Estate was itself a fairly recent subdivision which had not yet been completed, as indicated by the fact that 6 allotments remained to be developed. However, it had reached a stage, in Mr Batge’s view, whereby its character had been substantially established by the wide-fronted, single-storey dwellings already built on some 75 per cent of the allotments. The proposed development would be at odds with this character, particularly as the allotments to be created would be substantially smaller than most existing allotments in the locality; they would have frontages approximately half the width of other allotments in the Mirambeena Estate; and there would be reduced opportunities, as a consequence, to provide private open space and landscaping on each allotment.
24. Like Mr Vincent, Mr Batge had prepared a “Building Envelope Plan” which showed that it would be possible to build dwellings on the proposed allotments, but his view was that it would be difficult to achieve side setbacks consistent with those found typically in the locality and the consequence would be development “tighter in appearance than that which exists and determines the character of the locality”. Double garages built to the boundary, assumed in both Mr Vincent’s and Mr Batge’s indicative building envelopes, would be more dominant features in dwellings with narrower frontages on Mr Batge’s assessment. Dwellings built on the proposed allotments would inevitably be of a different size and proportions than those in the immediate vicinity and the small size of the allotments might even lead to proposals for two-storey dwellings. Approval of the proposed land division could also encourage proposals to subdivide the remaining vacant allotments in the Mirambeena Estate in Mr Batge’s view, with the potential to undermine further the positive aspects of character and amenity that had been established.
25. In the course of his evidence Mr Batge offered some opinions on the level of existing demand for housing in Whyalla. His research suggested that there were about 1,360 vacant allotments created or planned at present in the City of Whyalla – sufficient on his estimate to meet projected demand for more than 7 years. Mr Batge was unaware of the level of demand, if any, for small house and land packages but felt that, if such a demand existed, it would be best met in areas close to the District Centre Zone, which, in his opinion, had supplanted the old town centre as the main focus of commercial activity in the city. His reading of the desired character statement for the Residential Zone was that infill development was encouraged in certain circumstances to meet an increased demand for residential development which had been identified by the authors of the Development Plan. If, as Mr Batge asserted, that demand had now fallen away and land supply now comfortably exceeded demand, there was no need for infill development in his view.
26. While the Residential Zone allowed for increases in density in certain circumstances, this did not mean, in Mr Batge’s opinion, that every vacant allotment was a potential site for higher density development. The subject land might be technically “vacant or underutilised” at present, but this was a temporary condition, to be anticipated in an estate where development of the existing allotments was under way but had not yet been completed.
27. Overall, Mr Batge did not find the locality to be one in which infill was appropriate. Rather, the Mirambeena Estate was a comparatively recent area of development still in the process of being established and with a high level of amenity and consistency of character that should be maintained.

Discussion

Is the proposed development “infill”?

28. I heard a good deal of argument about whether the proposed development could be described as infill development. Ms Ryan drew attention to the judgment of this Court in Salisbury Constructions v City of Holdfast Bay and Billich [1999] SAERDC 16 where, at p 7, Commissioner Wallman stated that:

... infill development is a town planning expression which commonly refers to building on vacant land between existing buildings.

29. Ms Ryan also provided a definition of infill development from the Macquarie dictionary as:

... the development of small sites in established suburbs for medium density housing so as to achieve a more efficient use of existing urban infrastructure.

30. Mr Vincent saw infill as involving an increase in density in existing areas, while Mr Batge described it as providing additional dwellings in established areas.
31. In my view the essence of infill development is that it takes place in established areas and will commonly occur adjacent to existing buildings on allotments which are not developed, or are only partially developed. Some increase in density is likely to result. However, infill is a rather general term and the sort of density and built form which will be appropriate as infill development will depend on the context. Thus, the sort of infill development that might be anticipated in the core of a large metropolitan area is likely to be qualitatively different from that appropriate in a low density neighbourhood in a country town.
32. From my reading of the Whyalla Council Development Plan relevant to this case, I do not believe that the term “infill development” is used with any high degree of precision. The plan identifies a demand for new housing and anticipates that this demand will be met by a combination of infill development and by “developing the vacant land zoned residential to the west of the City”. In my view the intention here is to draw a simple distinction between development within the existing urban area – “infill development” – and development on the vacant land to the west of the existing urban area – greenfield sites, such as the “Ocean Eyre” estate, to which the Court was taken prior to the hearing.
33. On the basis of this simple distinction, I accept that the proposed development on the subject land would be infill development. (I note also that the Council, in its reasons for refusal of 18 June 2009, was of the same opinion, since one of these reasons was that “allotments of the size and shape proposed would encourage infill development”).
34. I do not, however, think that the subject land forms part of the “vacant land zoned residential to the west of the City” just because it happens to be west of the old town centre of Whyalla. The great majority of residential development in Whyalla is to the west of the old town centre, but the only reasonable reading of the Development Plan, in my view, is that the reference here is to the vacant greenfield land at or beyond the western edge of the established urban area. In any event, I also accept Mr Batge’s view that, while the subject land is technically “vacant or underutilised” at present, this simply reflects the fact that it forms part of a fairly recently created residential subdivision which is not yet fully established.

Is The Current Level Of Housing Demand A Relevant Consideration?

35. As mentioned earlier, Mr Batge provided the Court with some information about the amount of land which he estimated was currently available in Whyalla for residential development.
36. The second paragraph of the Desired Character Statement for the Residential Zone notes that:

Residential demand slowed in the early 1990’s thus limiting the expansion of the City westwards. Since 2002 the increased confidence in State’s mining and exploration future together with the expenditure on the Steelworks there has been an increased demand for land for residential housing.

37. It was Mr Batge’s argument that the “increased demand for land for residential housing” referred to in the Desired Character statement had now fallen away again and that, since infill development was encouraged to accommodate this demand, support could no longer be drawn from the Development Plan for infill housing.
38. I reject this argument for a number of reasons. While the Court received some information about current land supply in Whyalla, it did not receive any authoritative evidence about current and projected levels of demand for housing of different types. The Residential Zone provisions refer to increased housing choice, affordable housing and a range of dwelling types. There might still be an argument in support of the subdivision of land to provide increased housing choice even if it could be demonstrated that aggregate demand for housing across the City had fallen. In any event, a Development Plan makes provision for land for housing for a period of years and anecdotal information about the current state of the residential development market provides no basis for seeking to vary the clearly expressed longer-term intent of an approved Development Plan. If the Council forms the opinion that the assumptions about future residential land requirements underlying its Development Plan can no longer be relied upon the proper course of action is to review the plan, conduct appropriate investigations and then amend the plan.

Is the Proposed Development Appropriate on the Subject Land?

39. Objective 2 for the Residential Zone seeks increased dwelling densities in close proximity to centres, public transport routes and public open spaces. It was agreed by the expert witnesses that, on balance, the subject land meets these requirements, although Mr Batge qualified this by pointing out that the nearby public open space was largely undeveloped and that the old town centre, which was within walking distance, was now a less important focus for commercial activity than the district centre some way to the west. I noted a bus stop some 300 metres or so from the subject land but heard no evidence about the frequency of services at that stop. Nevertheless, I am satisfied on balance that the locality is one in which increased dwelling densities could be justified on the basis of the requirements set out in Objective 2.
40. Mention was made earlier of the approval granted in 2007 for 17 townhouses on Lot 28 to the south-west of the Mirambeena Estate. While some doubt was cast on whether the townhouse development and its associated land division at Lot 28 still had valid approvals, I accept that the fact that Council was prepared to contemplate such a development fairly recently indicates that this area is regarded as one suitable for infill at somewhat higher densities. However, I also accept Mr Batge’s opinion that the proposed development of Lot 28 for town houses, were it to proceed, would represent the efficient and co-ordinated development of vacant land, as required by objective 3 for the Residential Zone and, in that regard, would be rather different from the ‘ad hoc’ and opportunistic division of a single allotment, as proposed in this case.
41. The key issues seem to me to be whether the division of the subject land, while it might be infill development, would be “compatible with adjoining residential development” (Objective 2 for the Residential Zone); whether it would “detrimentally affect the setting of the surrounding locality” (Objective 6(e) of the Council Wide provisions relating to land division); and whether it would be “sympathetic to the dominant housing style in the immediate vicinity in regards to street setbacks and housing design”. In relation to these issues, I prefer Mr Batge’s evidence to that of Mr Vincent. I agree with Mr Batge that the proposed allotments would be likely to lead to subsequent proposals to construct dwellings which would not be in harmony with the established and consistent character of the immediate vicinity of Mirambeena Drive. While it might well be possible to design dwellings with similar roof forms and materials on the proposed allotments, such dwellings would inevitably be appreciably narrower than those which exist in the locality and would not be either compatible with adjoining residential development or sympathetic to the dominant housing style in the immediate vicinity for the reasons put forward by Mr Batge.
42. It was common ground between Mr Pitman and Ms Ryan that the appropriate approach to be adopted in assessing an application for land division is that set out in Kokkotos v City of Mitcham [2000] SAERDC 13. Para 17 of Kokkotos reads as follows:
    17. A considerable part of the evidence in this matter was directed towards the likely form and siting of future dwellings on the proposed allotments, and the provision of access thereto. In a general sense, these matters are relevant to an application for division of land, but only to the extent that they bear on the question of the suitability of the land for future residential development in a generic, rather than particular, sense. Put differently, evidence concerning the likely form and siting of future dwellings is relevant to these proceedings only if it serves to demonstrate that either of the allotments proposed is incapable of accommodating future residential development in a manner which is in general conformity with the relevant provisions of the Development Plan.
        
43. Overall, I find that this locality is within the established urban area of Whyalla and, as such, it is one in which infill development can be contemplated. It is fairly close to centres, public transport routes and public open space. It is also a locality where higher density development of vacant or underutilised land can be undertaken in an efficient and co-ordinated manner.
44. The application before the Court is for land division and, in the words of Kokkotos above:

... evidence concerning the likely form and siting of future dwellings is relevant ... only if it serves to demonstrate that either of the allotments proposed is incapable of accommodating future residential development in a manner which is in general conformity with the relevant provisions of the Development Plan.

45. The Mirambeena Estate is an area of high amenity and consistent established character. I find that the proposed allotments, with a width of only about half the width of most established allotments in Mirambeena Drive, are unlikely to be able to accommodate dwellings which are either compatible with adjoining residential development or sympathetic to the dominant housing style in the immediate vicinity, as required by the Desired Character statement for the Residential Zone.

Conclusion

46. I have carefully considered all of the evidence put before me, the submissions of counsel, the relevant provisions of the Development Plan and everything I saw on the view. Having done so, it is my planning judgment that the decision of the Council should be upheld and the appeal should be dismissed for the reasons set out above.
47. There will be an order accordingly.