ALEXANDER v CITY OF MITCHAM (NO. 1) [2010] SAERDC 39 (24 August 2010)

Last Updated: 26 August 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ALEXANDER v CITY OF MITCHAM (NO. 1)

[2010] SAERDC 39

Judgment of Commissioner Mosel

24 August 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Application for land division – one allotment into two allotments – Residential (Hills) Zone – consent refused by the Council – proposed division related to ERD 10-96 – contemporaneous hearings – assessment of land division stands alone from the specific proposal for the use of both allotments – whether the land division satisfies the strategic intent for the Zone and the provisions for the siting of dwellings is the central issue – that the locality has two parts that are distinguishable is a factor in the assessment – no conflict with the policy intent of the Zone – no adverse consequence flow from the departures between the proposal and quantitative provisions – appeal upheld – decision of the Council to refuse consent set aside – Development Plan Consent granted subject to conditions.

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

Richards v City of Mitcham [2009] SAERDC 1; City of Port Adelaide Enfield v Moseley [2008] SASC 88; Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor [2008] SASC 139; Vine & Anor v City of Holdfast Bay (No. 1) [2010] SAERDC 32; Kokkotos v City of Mitcham [2000] SAERDC 13, considered.

ALEXANDER v CITY OF MITCHAM (NO. 1)
[2010] SAERDC 39

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is one of two appeals concerning the land owned and occupied by Mr Alexander at 298 Shepherds Hill Road, Eden Hills (“the land”).
2. In May 2008, Mr Alexander applied to the Mitcham Council (“the Council”) for Development Plan Consent to divide the land into two allotments (Development Application No. 080/734/2008). On 15 March 2010 the Council notified Mr Alexander that it had refused consent. The notification and reasons for the decision are set out at pp 16-17 of Exhibit R1. This appeal arises from that decision.
3. From the evidence of Mr Alexander, it seems that the land division was the preferred step to take to realise his ultimate goal of constructing an additional dwelling (attached to his) on the land for occupation (in separate ownership) by a family member. This intention was announced when, in June 2009, Mr Alexander applied for Development Plan Consent for the additional dwelling described by the Council as a “two-storey residential flat building (containing two dwellings, one dwelling existing and one proposed), garage and portico” (Development Application No. 080/848/2009). On 15 March 2010 the Council refused consent and, in due course, advised Mr Alexander of its decision (pp 59-90, Exhibit R1). Mr Alexander also appealed that decision.
4. Both appeals were heard together. The latter, which for convenience I will call the “land use appeal”, is the subject of a separate proceedings (ERD No. 10-96).
5. Mr Manos and Ms Shute, respectively, appeared for the appellant and the Council. Sworn evidence was given by Mr Alexander and two experienced and qualified planners - Mr Vincent and Mr Fewster. Their statements of evidence were received, respectively, as Exhibits A4 and R2.
6. The Development Plan for the City of Mitcham relevant in this appeal is dated 24 April 2008 (“the Plan”). The land is situated in the Residential (Hills) Zone (“the Zone”). It is depicted on Map Mit/19 and shown on Figure Mit(BPA/13) to be in the Medium Bushfire Risk area.

The Land and Locality

7. Mr Fewster, in his statement of evidence, describes the land as, quite appropriately, “mostly rectangular in shape but with an angular or ‘dogleg’ midway along the western boundary.” Its area is 1,576 m² and is generally flat. The frontage and depth are respectively 21.43 m and 60.96 m.
8. The easement along the rear boundary in favour of the Minister for Infrastructure is of little importance in this appeal.
9. The land is occupied by Mr Alexander in a single-storey detached dwelling attached to which is a steel framed carport to which, in turn, is attached a shed. These buildings are set back from Shepherds Hill Road a distance in excess of 30 m. The land is served by a single width driveway.
10. Immediately to the east, west and south of the land are detached dwellings. A small section of its rear boundary abuts a car park that serves the Blackwood Primary School.
11. According to Mr Fewster, four of the mature trees on the land are “significant” trees (Regulation 6A, Development Regulations 2008). In June 2009 Mr Alexander successfully applied for the removal of one of those trees.
12. Mr Fewster and Mr Vincent both used, as the basis for defining a “locality” for the purposes of their assessments, the principle of including those properties from which the land is visible and which adequately demonstrates the existing pattern of development in its vicinity. The latter also included those properties that might experience amenity impacts from the proposed development.
13. Although Mr Fewster’s locality is a little larger than Mr Vincent’s, subject to the comments that follow, little if anything turns on the difference. Because the terms of the Zone’s Desired Character requires the assessment of the proposal to be undertaken in the light of the character and pattern of existing development, the appropriate locality includes the whole of the area identified by Mr Vincent and the southern portion defined by Mr Fewster. Broadly speaking the relevant locality is made up of two components. The first takes in all properties along the northern side of Shepherds Hill Road from Wade Street to Parham Road. The second comprises the properties fronting the southern side of Shepherds Hill Road and those fronting Seymour Street, the car park serving the Blackwood Primary School and the northern margin of the Blackwood High School.
14. It appears to me that both planning experts considered their localities as being homogenous in character. I do not agree. My observations on the view suggest that there are factors that support a contention that the pattern and overall character of existing development in the near vicinity of the land (that is, the second of the locality’s components) can be differentiated from the pattern and character of development on the northern side of Shepherds Hill Road. This is so because the land is within a small area (within which there are six other residential properties) that is wedged between a main traffic thoroughfare and the car parks and buildings that make up the margins of the primary and high schools. This area, overall, is less vegetated and has both a residential and institutional character. Within it are allotments of regular and irregular shape having areas that vary between 989 m² and 1,577 m². Most have wide frontages. Generally they are occupied by single-storey detached dwellings although the evidence indicates that one property contains two attached dwellings.
15. On the northern side of Shepherds Hill Road the character is entirely residential in its nature. Allotment sizes vary between 846 m² and 2,106 m² with one and, with one exception, all have wide frontages. With one notable exception, each is occupied by single-storey detached dwellings within a well vegetated setting. The exception is a recently constructed large two-storey dwelling.
16. Overall there is no consistent building setback from either the road or side boundaries. As to the former, setbacks vary from 8 m to 30 m. In respect of the latter, buildings are generally close to side boundaries. The general amenity of the locality has some competing aspects to it. Well established trees within many of the properties are a distinctive and positive feature. However, because Shepherds Hill Road carries an average daily two-way traffic flow of 20,000 vehicles (or more), some properties (including the land) have high fences along their front boundaries. Also as I earlier alluded to, the car park and buildings associated with the primary and high schools gives part of the locality a different character and amenity.

The Proposed Division

17. Exhibit A1 is the plan of division. It would create two allotments (Lots 1 and 2), an easement over portion of the common boundary (for the purpose of constructing a party wall that would separate the existing and new dwellings) and a right-of-way over portion of the existing driveway on Lot 1 to provide access from Lot 2 to Shepherd’s Hill Road.
18. The areas and frontages of the allotments would be as follows:

Lot Area Frontage

1 646 m² 10 m

2 930 m² 11.43 m

19. There are two aspects to note about the way in which the land would be divided. First, for the reasons outlined later, it is an uneven division of (the area of) the land into two allotments. As a consequence, when assessed solely against Principle 5 for the Zone, the area and dimensions of Lot 1 are brought into question. Secondly, the area of 646 m² would not be exclusive to Lot 1. That is because the right-of-way over the common driveway would give to the occupants of Lot 2, the right of access part of Lot 1. According to Mr Vincent, the area that would be exclusive to the use intended for this allotment is 578 m².

The Intended Use of Each Allotment

20. Having regard to Schedule 1, Development Regulations 2008, the proposed use of the land would be, strictly speaking, for a residential flat building comprising two dwellings. That much can be discerned from the evidence of Mr Alexander, the plan of division on which is depicted the outline of the existing and proposed dwelling and the party wall and the intention of the land division to facilitate joint use of portion of the land for access.
21. At first glance, the division of the land generally in the manner proposed might give the impression of an intent to establish two semi-detached dwellings. However as I have said, by virtue of the common driveway, Lot 1 is not exclusive to the new dwelling. Having regard to Schedule 1, Development Regulations 2008 from which a semi-detached dwelling takes on particular characteristics, the intended use cannot be for that type of development.
22. That said, when regard is had to the decision in Richards v City of Mitcham [2009] SAERDC 1 to which I will later make reference, the distinction is a technical one and has little bearing on the assessment of the proposed division of land.

Is Development Application No. 080/848/2009 a Relevant Consideration?

23. This appeal and the specific proposal for each allotment that is detailed in the above Development Application (the subject of the land use appeal) were presented by Mr Manos, in effect, as a single or “package” development. In his view, the proposals are inextricably linked “by dint of how the application[s] have been presented” to the Court. Thus, his argument goes, the merits of the land division must take into account the purpose and planning merits of the proposal in the land use appeal and vice versa. If this approach was taken, Mr Manos said that any concern that the Court may have about the land use and land division being disconnected could be overcome by the Court withholding the grant of consent for the land division until such time as consent is granted in the land use appeal and that consent has been implemented. This approach must be rejected for the following reasons.
24. There is a line of authority that makes it abundantly clear that it is desirable if not necessary to resolve the issue of land division before land use (for example City of Port Adelaide Enfield v Moseley [2008] SASC 88). I am not persuaded by the submission of Mr Manos to the effect that the decision of Debelle J in Moseley were “watered down” by His Honour’s decision in Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor [2008] SASC 139. On my reading of the latter, there is very little that would argue against the general principle enunciated in Moseley. That is, a decision on land division should not be fettered by the consideration of the merits of a proposal to construct buildings. On this question I repeat my remarks in the matter of Vine & Anor v City of Holdfast Bay (No. 1) [2010] SAERDC 32:

... the appropriate course is to consider the intended use in a general sense, and only to the extent that “bears on the question of suitability of the land for residential development”2. Taking this course quite properly treats land division as a specific instrument of planning, avoids the assessment being contaminated by features of a specific development that may obscure or deflect the assessment away from the Plan’s intent for land division, and detaches it from a proposal for development that may never come to fruition.

(² See also Kokkotos v City of Mitcham [2000] SAERDC 13).

25. The assessment of the land division in this appeal stands alone. The general intent to use each allotment for a dwelling contained within one building and not the specific proposal the subject of the land use appeal is relevant in the assessment.

The Development Plan

26. The provisions for land division that speak most directly to the issues in this appeal are to be found in the following Council Wide Provisions:

Land Division

43. (a) Land division for residential purposes should occur in a form consistent with the existing pattern of division in the locality, and should accord with the relevant provisions of this Development Plan, in particular taking into account in relation to each proposed allotment:

(i) the future development of a dwelling together with appropriate allowance for access, car parking, building set-back, open space, service area and landscaping:
(ii) the extent of any cut and fill;
(iii) existing vegetation being retained and any proposed to be removed; and
(iv) drainage.
(b) Land division should accord with the desired character of the locality and create allotments that are regular in shape, allow dwellings to address the street satisfactorily, and not result in poorly proportioned or substantially unusable spaces being created within dwelling sites.

44. Land should be divided in a manner appropriate to the intended use of the land.
45. The physical nature of land proposed to be divided should be suitable for the intended use of the land.

...

48. The division of land should not create allotments unsuitable for the development proposed thereon.

...

192. Where land division does occur it should be designed to:

(a) minimise the danger to residents, other occupants of buildings and fire fighting personnel;
(b) minimise the extent of damage to buildings and other property during a bushfire;
(c) ensure each allotment contains a suitable building site that is located away from vegetation that would pose an unacceptable risk in the event of bushfire; and
(d) ensure provision of a fire hazard separation zone isolating residential allotments from areas that pose an unacceptable bushfire risk by containing the allotments within a perimeter road or through other means that achieve an adequate separation.

27. When applying these provisions it is also necessary to consider the provisions for the Zone. The sole objective is expressed in the following terms:

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

28. The Desired Character expands on this Objective by speaking, in the following terms, about a range of factors that make up the “unique” and “special” character of the many foothills suburbs the Zone covers:

The area has developed a special character in response to a range of physical and environmental attributes including generally rugged topography, an abundance of vegetation, the absence of a deep drainage sewer system in the early years of settlement, the relatively low availability of and access to a range of services and facilities, and a relatively limited road system in terms of capacity and convenience.
As a result of the above factors, 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.
Subdivision 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 subdivision 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.
A large portion of the zone is within a Bushfire Protection Area shown on Figures Mit(BPA)/1 to 17 of the Development Plan. This area requires special consideration due to the potential conflict between the need to modify the natural environment to afford adequate bushfire protection and the consequent impact such action potentially has on the overall landscape quality of the area.

29. The Desired Character then proceeds to speak about the creation of new allotments (that is, land division), as follows:

It is desirable that the existing open and landscape 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 landform, and impacts on creeks and drainage lines. Such development should therefore not occur. This is particularly relevant in the bushfire protection 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.

30. It is within the foregoing overall intent that the more detailed provisions for the Zone that follow are a consideration.

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 (metres)	Minimum Area of Site (square metres)
1:8 or less	12	1200
Between 1:8 and 1:4	21	1500
Greater than 1:4	30	2000

...

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.

31. Insofar as the provisions in Principle 6 are for general consideration in respect of a division of land, so to are several Council Wide Principles under the heading “Residential Development” that deal with site area and dimensions, private open space, setbacks, car parking and general site planning and design. I have taken them all into consideration.

The Evidence

32. At para 8.32 of his statement of evidence, Mr Vincent concluded that the subject land is suitable for the division as proposed. It is fair to say that the route he took to reach such a conclusion relied, in part, on the favourable view he holds about the proposal the subject of the land use appeal. Nevertheless the language used by Mr Vincent in para 3.7 of his statement indicates that, in part, he approached his assessment of the proposal against the Desired Character and related principles for the Zone as the Court did in Richards.
33. In summary, Mr Vincent opined that the relevant provisions were satisfied for the following principal reasons. First, although the proposed allotments are smaller than many in the locality the land division, if given effect, would not result in the removal of mature trees nor have a significant impact on land form nor drainage lines. Secondly, because the land is “well separated from the sloping and more densely vegetated land within the locality”, it is an “appropriate location to accommodate an increase in density within the Zone.” In his view this conclusion would also be supported by the proximity of the land to supporting transport, education, recreation and retail services. Thirdly, any departure from the (effective) area of Lot 1 and its frontage from Principle 5 does not materially affect the capacity of the land to cater for the intended use nor have a negative influence on the character of the locality.
34. In Mr Fewster’s opinion, the intended use of the land is “not a desirable form of residential development in the locality as it clearly fails to achieve the underlying objective of the Zone”. It appears to me that paras 49 and 72 of his statement reproduced below provides the principal basis for this conclusion:

It is acknowledged that a residential flat or pair of semi-detached dwellings may actually be appropriate in some areas where the key objective of maintaining the spacious and landscaped character through “detached dwellings on large allotments” cannot possibly be achieved. For instance, areas where allotments are not large in size and not well vegetated, where detached dwellings are not prevalent and where there is no distinct subdivision pattern or spacious surrounds. The subject land and its locality do not possess any of these characteristics. It is however characterised by detached dwellings on large allotments and Objective 1 requires that this be maintained.
...
... the new allotment (Lot 1), and to some extent also the existing allotment (Lot 2), are smaller in size than most of the allotments established in the locality. Allotment 1 in particular is significantly smaller. It has an area of only 646 m², which is by far the smallest allotment in the locality (the semi-detached dwellings at No. 277 Shepherds Hill Road excluded). I note that many allotments within the immediate locality actually conform to the desired minimum of 1200 m² for detached dwellings. Therefore the proposed allotment, in comparison, is half the size or even less. It is these large allotments and their detached dwellings that make up the low-density and spacious character, which I believe would be undermined and put at risk by the creation of such a small allotment.

35. In reference to Principle 43 and, in particular, that aspect that seeks consistency between a proposal for land division and the existing pattern of division in the locality, Mr Fewster opined as follows:

Although the established subdivision pattern is not entirely uniform, it does however resemble a grid pattern in so far as the majority of allotments are rectangular and have relatively consistent frontages. A small number of irregular shaped allotments are observed within the locality, however, these allotments do not form part of, nor alter, the predominant pattern of division in the locality. I refer to the hammerhead shaped allotment to the west at 285 Shepherds Hill Road and some corner allotments as being notable exceptions to the prevailing pattern and character.
The frontages of allotments in the locality are on average 23 metres wide. The proposed frontages of 10 metres and 11.43 metres respectively are therefore significantly under this average. Although I note that the frontage of Allotment 2 would meet the minimum of 11 metres prescribed by Principle of Development Control 5 of the Zone, again, this does not certify that the objective and intent of the zone would be attained as a result. The creation of such narrow frontages would detract considerably from existing pattern of division and fail to preserve the essential open and spacious elements that make up the existing character.
The above provisions also require that allotments are created in a regular and orderly fashion. The alignment of the proposed common boundary with a distinctive dog-leg is not regular, nor orderly. While this alignment may not be dissimilar to the alignment of the south-western boundary of the subject land, this boundary arrangement is undesirable and should not be considered a precedent or basis for development of a similar nature.
Not only is the division of land disorderly, it is not in keeping with the prevailing pattern and character of the development in the locality.

Discussion

36. Having regard to all of the relevant provisions above, it appears to me that there are two principal issues upon which this appeal turns. The first is whether the intended use of proposed Lots 1 and 2 (each for a dwelling contained within a single residential flat building) satisfies the Zone’s strategic intent as expressed in its sole objective, the Statement of Desired Character and Principles of Development Control. The second issue is whether the area and dimensions of both allotments satisfy the provisions that are directed to the intended use and its siting and functional requirements.
37. On its face, the proposed division (by virtue of the intended use and, variously, the area and frontage of each allotment) would act against the emphasis that Objective 1 and Principle 1 for the Zone and the Statement of Desired Character appears to place on the retention of those parts of it that are occupied by detached dwellings on large and well-vegetated allotments. However, there are other provisions that appear to countenance forms of development that may differ from the desired character. Principles 2 and 3, for example, anticipate the division of land into irregular shaped allotments with relatively narrow frontages, and Principles 4 and 5 contemplate some forms of medium density development on allotments that are substantially smaller than is suggested by the Plan to be desired.
38. The apparent contradiction was the subject of specific comment in Richards. The proposal under appeal in that matter involved a Community Title Land Division creating two allotments for two group dwellings in the Zone. At para 25 Commissioner Hodgson remarked as follows:

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.

39. Commissioner Hodgson’s approach above is, subject to the following, apposite to the present appeal and I respectfully adopt it. The land is flat and is not close to drainage lines nor a watercourse. Although there are several trees on the land, in my view, it could not reasonably be described as being abundantly vegetated. That description would be more likely to apply to the large properties north of Shepherds Hill Road. The absence of these factors, together with the factors mentioned earlier that differentiate the overall character of the properties in its near vicinity from the wider locality, are of some consequence to the assessment. Although there are other considerations, because the aspects of the Zone the Plan seeks to emphasise and retain are not heavily represented in the locality, there is little to support the Council’s contention that the proposal should be rejected because it is inconsistent with the stated desired character. In much the same vein, because the provisions for the Zone in expressed circumstances contemplates development on relatively narrow allotments (Principle 5), the fact that the underlying pattern of land parcels in the locality have, predominantly, wide frontages is not a basis upon which the proposal should be rejected. When the proposal is seen in this light, the intention to divide the land for the purpose of a residential flat building is, subject to the following, consistent with the intent of the Zone for dwellings other than detached dwellings. The close proximity of the land to a public transport route, retail facilities and schools are factors that also speak in favour of its use for medium density development.
40. The appeal therefore turns on whether the area and dimensions satisfy the relevant provisions. At this point it is appropriate to revisit an earlier comment. The proposal is an uneven division of the land largely as a consequence, it seems, of the position of the existing dwelling, the common driveway, the gas meter serving the existing dwelling, and a stobie pole. It is also an unusual method of creating tenure for a residential flat building. Instead of a “Torrens Title”, the form of development proposed (a residential flat building) is generally more suited to division by Community Title in which dwellings and their respective private spaces are differentiated from areas such as driveways, front gardens and service areas used and held in common. While the type of tenure has little bearing on the merits of the land division, in the event that it was not proposed at all or did not proceed[1] but the intention to construct a residential flat building comprising two dwellings persisted, but for an inconsequential deficiency in its frontage, the land is capable of meeting the provisions of Principle 5[2].
41. Nevertheless, in respect of Lot 1 there are obvious departures when assessed against that principle. The departures arise from the position of the new and common boundary between Lots 1 and 2. The frontage is deficient by one metre and, arguably, the area to be held exclusively by it is about 20 m2 less than the specified minimum. The consequences of the departures, in planning terms, can be generally determined by reference to Principle 43. When the details depicted on the plan of division are assessed against that Principle (in particular, the driveway alignment and design and the position of the new boundary in relation to the existing proposed dwelling), it is apparent that a new dwelling attached to the existing dwelling could be constructed in an orderly manner and be generally consistent with that Principle, the provisions of Principle 6 and those under the heading of “Residential Development” referred to earlier. That is to say, the proposed configuration would, in general terms, enable a new dwelling (attached to the existing house) to address the street appropriately and provide adequate allowances being made for access, car parking, building set-back, open space, screening and landscaping. Also, having regard to the evidence of Mr Alexander and Mr Vincent about the intention for the front fence and existing driveway and gates, I am satisfied that the proposal will have little impact on the existing streetscape.

Conclusion and Decision

42. By Memorandum dated 27 July 2010 I advised the parties that for the above reasons I had concluded that the land is suitable for its intended use and, subject to the imposition of relevant conditions, the form of land division satisfies the relevant provisions of the Plan.
43. Upon the resumption of the hearing, I heard submissions in respect of a draft list of conditions prepared by the Council. All but draft condition 2 met with their agreement. Draft condition 2 is as follows:
    2. All existing buildings, structures, rubbish, and dilapidated materials shall be removed from proposed Lot 1 prior to the issue of Section 51 clearance, such that the proposed Lot 1 is suitable for its intended use.
44. Having considered their submissions I have concluded that draft condition 2 does not have in its content a valid planning purpose. It will not be included in the final order.
45. The appeal is upheld and the decision of the Council to refuse Development Plan Consent is set aside. There will be an order granting Development Plan Consent subject to the conditions numbered 1, 3, 4, 5 and 6 on the draft list of conditions prepared by the Council and renumbered as necessary.
    

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[1] It is to be noted that the division of land does not of itself characterise the intended use of the land.

[2] The way in which Principle 5 is expressed, as Mr Vincent points out, creates several difficulties in interpretation. In some circumstances the terms of Principle 5 would make little sense in planning terms. Nevertheless, in the present appeal I am satisfied that the approach taken by Mr Vincent is appropriate.