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BENNETT & ANOR v CITY OF ONKAPARINGA [2010] SAERDC 3 (21 January 2010)

Last Updated: 25 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA


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BENNETT & ANOR v CITY OF ONKAPARINGA


[2010] SAERDC 3


Judgment of Commissioner Mosel


21 January 2010


ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application to divide land – two allotments in three – Residential Zone – Aldinga Scrub Policy Area – refused by the Council – the issues defined – the scheme for residential development in the Residential Zone considered – the provisions for land division in the policy area preferred to those applying to the Zone generally – the guidelines in Principles 8(a) and (b) assist to distinguish the policy area, are no less important than other principles and act to assist the attainment of the desired goals – the presence of small allotments in the relevant locality does not bring into question the expressed policy intent – appeal dismissed – the decision of the Council to refuse development plan consent and land division consent confirmed.

Development Act 1993 (SA); Development Regulations 2008 (SA), referred to.

Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356; Donaldson v City of Unley and Snowden Associates 1994 EDLR 303, considered.


BENNETT & ANOR v CITY OF ONKAPARINGA
[2010] SAERDC 3


THE COURT DELIVERED THE FOLLOWING JUDGMENT:


  1. This appeal is against the decision of the Onkaparinga Council to refuse development plan consent and land division consent to a proposal by P & A Bennett to divide two existing allotments into three new allotments. The land concerned is situated at 252 Esplanade, Aldinga Beach.
  2. Each of the two existing allotments (Lots 522 and 523) is rectangular in shape with a frontage of 18.62m, a depth of 79.27m, and an area of about 1,471m². There is a 3.06m wide easement for drainage purposes along the length of the rear boundary of both allotments.
  3. The proposal would divide the whole of the land into three rectangular allotments, each maintaining the depth of the land but having an area of 981m² and a frontage of 12.41m.

The land and its locality

  1. For all intents and purposes the land is flat save for remnant sand dunes that overlap a portion of the rear boundary. Being situated on the Esplanade it enjoys, along with its neighbours, elevated and expansive views over the beach and the waters of the Gulf of St Vincent. By and large, the land is devoid of native vegetation. This aspect of the land stands in contrast with many of its neighbours and property in the near vicinity, particular to its east.
  2. The land forms part of a seaside settlement that stretches along the coast for 2km or so between the beach and the conservation area to the east (commonly referred to as the “Aldinga Scrub”). As would be expected, most dwellings along the Esplanade are designed to capture the coastal views. Although some dwellings along Kestrel Terrace (to the east) and Magpie Road (to the north) seek to do much the same, they are generally situated in a more bush-like setting where they have intruded into the remnant edge of the Aldinga Scrub and coastal dunes.
  3. The two expert planners appearing in this matter, Mr Batge and Mr Vincent, prepared locality plans for the purposes of their assessments. They are set out, respectively, in Exhibits R1 and A1. Although they differ quite significantly in their extent, both localities share a common area extending in a west-to-east direction from the beach (100m or so west of the land) to Kestrel Terrace, and in a north-to-south direction from Sheoak Avenue to the coastal dunes and housing development just south of Wattle Avenue. That area, in my opinion, is the relevant locality.
  4. Features of the locality that are of some relevance are as follows:
  5. Mr Batge characterised the existing development within the locality in the following terms:
Development within the locality comprises predominantly detached dwellings of one and two storeys. Typical of detached dwellings on large allotments the site coverage of the dwellings and associated buildings of the allotments is low with substantial space between and around buildings, and at the rear of dwellings. Side boundary setbacks are in the main generous, varying from approximately 1m to 6.5m. Front setbacks of buildings along their Lower Esplanade frontages within the locality range between approximately 4m and 10m.
  1. Having viewed the locality, I concur with the above description. Nevertheless, it is apparent from the view that there are two distinct parts to the locality. The most obvious is expressed and distinguished in the size, design and orientation of the dwellings along the Esplanade. The proposal is situated within this part of the locality. The less obvious, but no less important in the assessment, are the dwellings in the eastern sector that are situated on large allotments within a bush setting. The rear boundary of the land adjoins this section.

The issues

  1. The land and surrounding Aldinga Beach settlement are within the Residential Zone (“the Zone”) of the Council’s Development Plan (“the Plan”). The parties agree the relevant version of the Plan is dated 28 August 2008.
  2. The Zone covers a large part of the Council’s residential areas. There are eight policy areas within the Zone. The land, and for that matter, all of the Aldinga Beach settlement, is within the Aldinga Scrub Policy Area (“the Policy Area”).
  3. The Policy Area, in addition to provisions that cover dwelling design and siting, has principles that deal specifically with land division. In particular it sets out clearly, in quantitative terms, guidelines for the frontage and area of new allotments (Principles 8(a) and (b)). There is no dispute that the proposal falls short of meeting the guidelines. It is also clear that the refusal to grant consent by the Council stems directly from the deficiency in frontage and area of each proposed allotment. Having considered the evidence and the submissions, whether the proposal merits consent is a question that will involve the consideration of, at least, the following:[1]

(a) the way in which the guidelines in Principles 8(a) and (b) are expressed, the extent to which they are applicable to the proposed development and the weight they should be given in the pursuit of the expressed goals for the Policy Area and the Zone;


(b) whether the departures from the guidelines are likely to advance or impede the attainment of the Desired Character Statement (“DCS”) and the expressed purpose of the Policy Area; and


(c) whether there are unusual circumstances evident in the locality that may render unattainable the goals for the DCS and its supporting objectives and principles.


  1. A consideration of the scheme the Plan sets out for residential development in the Zone is of some assistance in the resolution of these issues.

The relevant provisions of the Plan

  1. There are provisions for the Zone that deal quite specifically with land division. Objective 7 and Principle 28 for the Zone are in the following terms:
Objective 7: Land division which:
(a) contains a range of allotment sizes suitable for different types of dwellings; and
(b) promotes innovation in design and layout.
  1. Development should provide for a range of allotment sizes, in order to facilitate housing mix. Dwelling plans may need to be supplied to demonstrate the ability of the allotment/s to meet Council’s dwelling design policies.
  2. Couched in the above terms, these provisions are broadly consistent with Zone Objective 1 which sets out its intention as follows: “[a] zone primarily comprising low-density and medium-density housing of varied form to accommodate a wide range of life-style needs.” In other words Objective 7 and Principle 28 would establish residential areas of mixed character insofar as the character of an area of locality is determined by allotment sizes and dwelling types. Although there are no quantitative guidelines for land division speaking in support of Principle 28, Principles 20 and 21 for the Zone set out minimum site areas for various dwelling types. For detached dwellings the minimum is 300m². This minimum and the minimum site areas for other dwelling types expressed in Principle 21 together speak directly in support of the goal of a zone of mixed residential character.
  3. A very different picture emerges when the relevant provisions for the Policy Area are examined. Principles 8(a) and (b) are expressed thus:
8. Land Division should only take place where:
(a) the size of the allotment created for an individual dwelling is not less than 1,200 square metres in area;
(b) each allotment has a minimum frontage to a public road of fifteen metres;

(Paragraphs (c) and (d) of Principle 8 are of little relevance in this appeal).


  1. When applying Principles 8(a) and (b), the following excerpts from the Policy Area’s DCS are for consideration:
It is envisaged that The Aldinga Dunes policy area will continue to develop as a low-key, residential coastal settlement designed to prevent detrimental impacts upon the high conservation value of the adjoining Aldinga Scrub and Washpool areas.
Some replacement of older dwellings with new detached dwellings is expected to take place, with new dwellings having a complementary height, mass and scale to the prevailing scale of dwellings in the locality.
The coastal character of the policy area will be maintained through the retention of existing native vegetation on private properties. Where ever possible vegetation will be used to provide shade and soften the overall appearance of buildings. As development occurs this native vegetation should be supplemented with new plantings of complementary species that are tolerant of coastal weather conditions and easily maintained.

Also for consideration is Principle 2, the intent of which is to confine development in the Policy Area to “detached dwellings and associated outbuildings”.


  1. In much the same vein, there are several other policy areas within the Zone that express land division guidelines in quantitative terms. At face value, the provisions for each of the policy areas would establish within them residential development of more particular, perhaps homogenous, characters than might be the case were the terms of Objective 7 and Principle 28 above to apply across the Zone. To the extent that structuring the Plan in this way is intended, in part, to distinguish and set apart the existing and desired character for particular policy areas from other parts of the Zone, this approach to residential policy for the Zone as a whole is consistent with the following excerpt from its commentary:
... The Zone is large in size and there are considerable variations between localities. These different elements of character should be taken into consideration when assessing development proposals. (My emphasis).
  1. Principle 1 for the Policy Area seeks consistency between new development and its desired character. Since the manner in which land is divided can influence, more or less, the character of the buildings placed upon each new allotment, other provisions of the Policy Area, including those that follow, shed some light on its underlying thrust.
    1. Buildings should be designed in such a way and be of such a scale as to be unobtrusive and not detract from the desired character of the policy area and, in particular:
(a) buildings should be no higher than two storeys having regard to the height of adjoining development and the natural form of the land;
(b) the mass of buildings should be minimised by variations in wall and roof lines and by floor plans which complement the contours of the land, minimising the need for excavation and filling;
(c) access arrangements should not impair the natural coastal topography by cutting, excavating or otherwise interfering with coastal dunes;
(d) buildings should include shading elements such as verandas, eaves and screens that assist with energy efficiency.
  1. Side boundary setbacks of at least 1.5 metres for enclosed structures should be established to provide for glimpses through to distant landscapes, where such vistas are available.
  2. Somewhat peripheral to the central issues above, but nonetheless for consideration, are the following Council wide provisions: Coastal Areas Principle 25, Land Division Objective 2 and Principles 1, 2, 3 and 4. I have also taken into account the other provisions of the Plan listed by Mr Batge and Mr Vincent in Exhibits R2 and A1.

The evidence

  1. Mr Vincent, a qualified and experienced planner, appeared in the appellants’ case. Although he had regard to relevant provisions for the Zone and the Council area as a whole, his assessment drew largely on the provisions for the Policy Area. Mr Vincent acknowledged the conflict between the proposal and the provisions of Principles 8(a) and (b). In respect of the area of each allotment, he opined that the departure “in isolation may be considered excessive.” Nevertheless, Mr Vincent’s ultimate conclusion in support of the proposal was advanced on the following interrelated propositions.
  2. The first relates to the weight that should be given to the quantitative guidelines in Principle 8(a) once the “pattern of existing development within the established locality” is taken into account. He drew on particular expressions within the DCS for the Policy Area in support of this approach. By reference to his locality he was comforted – on his analysis – by the areas of the proposed allotments (981m²) being at the “upper end of the scale when considered against the size of the small allotments within the locality.”[2]
  3. The second of Mr Vincent’s propositions concerns the guidelines for allotment frontages in Principle 8(b). Here he acknowledged the disparity between the guidelines and the proposal. Unlike the approach taken above, Mr Vincent appears to have placed little importance in the established character and pattern of development as a basis for his assessment of the adequacy of the frontages. Instead, Mr Vincent concluded for the following reasons that the departure of the proposed frontages from the guidelines and, I assume, that aspect of the established character, is justified. Stated briefly, he reasoned that the smaller frontage would be sufficient to accommodate dwellings that would conform with the desired character[3], would not require the removal of native vegetation[4] and, in light of the state of development in the locality, would not set a precedent for future land division.
  4. Mr Batge, also an experienced and qualified planner, appeared in the case for the Council. In his statement (Exhibit R2), he suggested that the specific policies for minimum allotment area and frontages sets it apart – as do similar provisions for other policy areas – from the provisions for the Zone generally. Large allotments in the Policy Area, he said, are necessary in the Policy Area to achieve the following outcomes (paraphrased):
  5. In his assessment, Mr Batge suggested there are limitations to the future development of each of the proposed allotments by virtue of the land being itemised on the Aboriginal Heritage Register and, being in close proximity to the coastline, the requirement to comply with particular requirements for the installation of septic tanks.
  6. However, at the core of his evidence and thus his ultimate conclusion to the effect that the Court should confirm the decision of the Council, are the following arguments (appearing at para 7.0 in Exhibit R2):
The [proposed] development will disrupt the pattern of allotment frontages along that section of the Lower Esplanade. This is inconsistent with the positive low density, spacious characteristics of the locality. Three narrow allotments side by side will produce narrow fronted (most probably two storey) dwellings that are out of character with the Lower Esplanade streetscape.
The narrow width and reduced site areas are uncharacteristic of the locality and inconsistent with the Desired Character for the Policy Area for large, well vegetated allotments.
It is in my opinion, in an area with such strong characteristics that directly relate to allotment size and spaciousness, the minimum policy settings which are already lower than the prevailing conditions in the locality need to be respected to avoid undermining both the existing and Desired Character for the Policy Area.
The Aldinga Dunes Policy Area contemplates development of the area as a low-key coastal settlement, and does not support forms of development that would establish adverse precedents or detract from the Desired Character. Development which alters the basic characteristics of that allotment pattern and the configuration, appearance and siting of dwellings should not be supported.
The reduced area and width of the proposed three allotments has constraining and negative implications for the amount of space and landscaping at the rear interface between the development in the eastern and western sides of the locality and for the ongoing disposal of waste and stormwater where there is no infrastructure for the disposal of waste water and stormwater.

The submissions and discussion

  1. Mr Levinson and Ms Ryan for the appellant and the Council respectively, by consent, offered their closing submissions in writing. Their submissions are retained on the Court file.
  2. The central thrust of the appellants’ case can be summarised as follows:
  3. The thrust of Ms Ryan’s submissions[5] is as follows:
Whilst it is acknowledged that each case falls to be considered on its own merits, the case law authorities do suggest that in some cases, where a proposal fails in a material respect to meet relevant provisions of the Development Plan, the fact that it may constitute a precedent within its locality is a matter to which due weight should be given.
  1. I said earlier that whether the proposal merits consent involves a consideration of three principal issues. Set out below are my views on each of those issues and the conclusions that flow therefrom.

Principles 8(a) and (b): expression and weight

  1. By their terms, Principles 8(a) and (b) set out quite clearly the desired size and frontage for an allotment within the Policy Area and are absent of language that contemplates degrees of compliance. To the contrary, they are expressed as a minimum and it appears, by the language used, the authors sought to limit discretion in an assessment without making the guidelines a mandatory requirement. Here I refer to the phrases “[l]and division should only take place where ...”, and “[t]he size of the allotment...is not less than...”. (Emphasis added).
  2. Principles 8(a) and (b), as guidelines for land division, are to be preferred to those expressed for the Zone. This must be so because to apply other more general provisions is a course that leads to a conflict in planning goals. To exercise discretion in the assessment by applying, for example Zone Objective 7 and Principle 28 above – which together encourage a more flexible approach to allotment size and configuration – would be inconsistent with the planning purpose of Principle 8. That is to say, to apply or give undue weight to the more general provisions as the preferred guidelines, the less likely will the pattern of land division of and the ultimate development on land in the locality conform with the desired character. It is worth repeating my views expressed earlier. The relevant objectives and principles for the Zone earlier referred to are, generally speaking, directed towards the goal of establishing a zone of mixed residential character in which there is a wide range of housing types and allotment sizes. The desired character for the Zone is very different from that sought by the Policy Area. It is well established that where a conflict or inconsistency exists, precedence should be given to the more detailed policy found typically at the policy area level of a development plan.[6]
  3. In all, the guidelines in Principles 8(a) and (b) are clear as is their overall purpose. They are to be preferred to the general provisions in the Plan and thus be afforded weight in the assessment. It is for these reasons that Mr Levinson’s submission which points to a consistency between the area of each allotment with that envisaged in metropolitan residential zones is not among the factors that lend weight to the appellants’ case.

Principles 8(a) and (b) and the DCS

  1. The question here is: will the departures of the proposal from the area and frontage guidelines expressed in the principles affect, in a material way, the expressed purpose of the Policy Area?
  2. In part this question has been addressed above. Nevertheless, on my reading of the DCS, it appears that the ultimate goal of the Policy Area is expressed in its first paragraph. That is, to “...continue to develop as a low-key, residential coastal settlement designed to prevent detrimental impacts upon the high conservation value of the adjoining Aldinga Scrub and Washpool areas.” The above emphasis serves to highlight the intention of the Plan to preserve the existing character of the Policy Area.
  3. The “high conservation value” of the locality, the “prevailing scale of dwellings” and the “coastal character” of the Policy Area are all terms within the DCS supporting this proposition. What role does the division of land have in preserving the existing character? It is apparent, as Mr Levinson said, that the terms of the DCS and several of the principles for the Policy Area direct attention to the control over building height, mass and scale, and the retention of native vegetation as the mechanisms to achieve the desired goals. But to say, as Mr Levinson did, that these provisions cast Principles 8(a) and (b) in a subordinate role in the assessment would be to ignore their evident purpose discussed above and the assistance they provide to the goal of preserving existing character. To reiterate, Principles 8(a) and (b) are factors no less important in distinguishing the Policy Area from the rest of the Zone than the other principles that guide development. They are also an important factor in the goal of maintaining a “low-key” coastal development. On this point I concur with Mr Batge’s characterisation[7]. The maintenance of allotments with wide frontages and large areas are necessary to accommodate dwellings of similar mass, scale and separation and re-establish vegetation in the manner sought and for the purpose expressed in the DCS.
  4. It is in this sense that Ms Ryan’s submission about the importance of maintaining consistency with the guidelines in Principles 8(a) and (b) resonate. The smaller the allotments are, the less likely it is for the desired goals expressed in the DCS to be met. Granted, dwellings of suitable design might be constructed on each new allotment. However, the indicative plans in Exhibit R1 (pp 23-29) serve to illustrate the constraints imposed by the allotment area and dimensions to achieving development of like character to that which now exists and that desired in the future.

Are there circumstances that bring into question the relevant policies?

  1. It is evident to me that the existing pattern of development is generally consistent with that envisaged in the DCS. I acknowledge the evidence of Mr Vincent to the effect that within his locality there are clusters of allotments smaller in area than the guideline in Principle 8(a). In my view, the presence of small allotments in the relevant locality presence does not alter in any material way that aspect of the overall character established by large and wide parcels of land. In short, the prevailing pattern of development does not bring into question the relevance of the stated provisions for the Policy Area.
  2. Nevertheless, I have considered Mr Vincent’s evidence at some length on this point. As I said earlier, his conclusions are based on the following principal propositions. First, the proposal is consistent with “substantial numbers” of allotments in the locality with allotment areas less than 1,200m². Secondly, the proposed areas and frontages of the new allotments, although less than the guidelines, are acceptable because they are able to accommodate the type of dwellings envisaged for the Policy Area. It is the first of these propositions that is relevant here. It appears to me – and I say this with respect - that Mr Vincent embarked, perhaps unconsciously, on an exercise of defining a locality and selecting aspects of it in a way that favoured his ultimate conclusion. Mr Vincent’s locality distorts the true picture. In so doing, Mr Vincent failed to have sufficient and proper regard to all of the elements that make up the character of the locality, the expressed desire in the DCS to maintain that character and the proper role to be played by Principles 8(a) and (b) in achieving that goal.
  3. I said above that there are two parts to the locality’s character. The Plan does not recognise this difference. Nevertheless, nothing I observed of the character along the Esplanade on the view nor in the evidence or submissions persuade me that the policy expressed in Principles 8(a) and (b) are redundant or that discretion to the extent necessary to accommodate the departures are warranted.

Conclusion and decision

  1. Whether the departures from the guidelines in Principles 8(a) and (b) are tolerable is a matter of planning judgment. In my view, the departures are material and unjustified in the circumstances. Principles 8(a) and (b) have direct application to the question of the proposal’s planning merits and, along with the existing character of the locality, acquire considerable weight when assessing the merits of the proposal against the desired goals for the Policy Area. In short, to allow the proposal to proceed would not be acting in a manner conducive to the attainment of the desired goals that are expressed in the DCS.
  2. The appeal is dismissed. The decision of the Council to refuse development plan consent is confirmed.

[1] See Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356.

[2] The “locality” to which Mr Vincent refers is the area defined by him. It differs significantly from that I consider appropriate for the purpose of assessment.

[3] Here Mr Vincent referred to the indicative dwelling designs at pp 23-39 inclusive, Exhibit R1.

[4] As stated earlier, the land has been cleared of coastal vegetation.

[5] The citations that follow are those to which Ms Ryan made specific reference.

[6] See Donaldson v City of Unley and Snowden Associates 1994 EDLR 303.

[7] Transcript pp 55 and 56.

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