MCGREEVY v CITY OF MARION [2010] SAERDC 4 (21 January 2010)

Last Updated: 25 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MCGREEVY v CITY OF MARION

[2010] SAERDC 4

Judgment of Commissioner Hamnett

21 January 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a decision to refuse consent to an application to create an additional allotment – Residential (General) Zone – Northern Policy Area 15 – whether the proposed allotment is a “hammer-head” allotment – definition of “hammer-head” and “battle-axe” allotments – measurement of the effective width of allotment frontage – minimum standards not a statement of desired standards – proposed allotment likely to place constraints on the siting of a future dwelling – proposed development at odds with the character of existing development in the relevant locality and unlikely to contribute to the attractive residential environment sought as part of the desired character for the policy area – decision of Council upheld. Appeal dismissed.

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

Poralka Investments Pty Ltd v City of Marion [2004] SAERDC 114; City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244, considered.

MCGREEVY v CITY OF MARION
[2010] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Background

1. This is an appeal against the decision by the City of Marion (the Council) to refuse consent to an application by Michael McGreevy (the Appellant) to subdivide and reconfigure two existing allotments at 29 Adelaide Terrace and 65 Weaver Street, Edwardstown in order to create an additional allotment.
2. The application (Development Application Nos 100/D097/2009; 100/1148/2009) was lodged with the Development Assessment Commission on 4 June 2009 by Jeanes and Somerville Surveyors, on behalf of Mr McGreevy. The Council notified Mr McGreevy that the application had been refused by a notice dated 10 September 2009. Mr McGreevy was aggrieved by this decision and appealed to this Court.
3. On 20 October 2009 the Court made an order 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 Mr G Leydon, of counsel. The Court also heard evidence from Mr R Tokley, a qualified town planner in the employ of the Council. Mr McGreevy, who did not have legal representation, made a statement in support of the proposed development. Mr McGreevy also holds a professional qualification in town planning, but the statement which he made in this case was treated as that of an appellant with a personal interest in the outcome rather than that of a disinterested expert witness. A view of the subject land and its locality was undertaken prior to the hearing.

The Subject Land

4. The subject land comprises two existing allotments at 29 Adelaide Terrace and 65 Weaver Street, Edwardstown. These are formally described, respectively, as lot 185 in Deposited Plan 3739, Certificate of Title Volume 5627, Folio 735; and lot 187 in Deposited Plan 3739, Certificate of Title Volume 5716, Folio 476. Lot 185 is rectangular in form with a frontage of 16.5 metres to Adelaide Terrace, a depth of 45.72 metres and a total area of 738.4 square metres. Lot 187 is irregular in shape. Its primary frontage of 52.07 metres is to Weaver Street but there is also a small frontage to Lockhart Terrace of 6.69 metres. There is a rear boundary, 45.72 metres in length, which also forms the side boundary of lot 188, an allotment with its main frontage to Lockhart Terrace; and a side boundary of 31.6 metres in length which also forms the rear boundary of lots 186 and 185 Adelaide Terrace and part of the rear boundary of 184 Adelaide Terrace. The area of lot 187 is 875.6 square metres.
5. There is an existing single-storey dwelling at 29 Adelaide Terrace. This is set back about 8 metres from the front boundary of the property, 2.5 metres from the northern side boundary, 4 metres from the southern side boundary and 30 metres from the rear property boundary. There is a garage attached to the southern side of the dwelling which extends to the side boundary of the lot. There is also an existing single-storey dwelling at 65 Weaver Street. This is set back about 7.5 metres from the street. A double garage adjoining the dwelling to its west extends for a metre or so in front of it and there is also a single garage set back about a metre from the street, close to the intersection with Lockhart Terrace.

The Locality

6. The street pattern in the locality of the subject land is somewhat influenced by the existence of the Adelaide to Noarlunga rail line. Adelaide Terrace runs from north-east to south-west parallel to, and south-east of, the rail line. Weaver Street is one of a number of streets running from east to west. Allotments which are roughly triangular in shape occur at the intersection of some of these east-west streets with Adelaide Terrace.
7. Mr Tokley defined a locality for the purposes of his assessment of the proposed development. This comprised adjoining and nearby allotments extending as far as Woodlands Terrace to the north, dwellings with frontages to Calstock Avenue to the east and Dunorlan Road to the south. To the west of the rail line, he also included properties with frontages to Railway and Seymour Terraces and to Robert and Allison Streets. Within this area he found the existing pattern of development to be one of a mix of single-storey detached dwellings constructed between 1940 and 1960, SA Housing Trust maisonettes from the 1950s and more recently constructed single-storey dwellings, built over the past 10 or so years. Mr Tokley found the quality and condition of dwellings in the locality to be variable.
8. Allotments in Mr Tokley’s locality were typically between 600 and 750 square metres in area, with street frontages for detached dwellings ranging from 12 to 16 metres. Exceptions to this were several recent subdivisions which had created allotments for semi-detached dwellings with site areas of 350 to 400 square metres and frontage widths in the order of 9 to10 metres. Most dwellings were set back between 8 and 10 metres from the street boundary, with the front of each dwelling facing the street. Front yards generally incorporated low-level front and side fencing and a variety of small trees and shrubs. Mr Tokley’s description of the characteristics of the locality was supported by a detailed analysis of allotment areas, dwelling types and frontage widths, set out in attachments to his statement of evidence.
9. Mr McGreevy did not attempt to define a locality but noted that the subject land was only 250 metres from the Woodlands Park Railway Station, 600 metres from the Edwardstown District Centre and 50 metres from a public reserve. These were relevant considerations in his opinion. Mr McGreevy also pointed to the existence of a number of “hammer-head” allotments, principally in streets beyond the boundary of Mr Tokley’s locality. Mr McGreevy observed that the amenity of Weaver Street was fairly low in the vicinity of the subject land, primarily because of the existence of a Colorbond fence extending for some 35 metres along the northern side of the street.
10. I agree with and accept Mr Tokley’s description of the locality and of its character. I discuss the relevance of Mr McGreevy’s comments later.

The Proposed Development

11. The proposal is to create an additional allotment at the rear of the existing dwelling at 29 Adelaide Terrace and to the west of the existing dwelling at 65 Weaver Street. The greater part of the new allotment – about 323 square metres - would be taken from the rear yard of 29 Adelaide Terrace. In addition, a triangular portion of land would be added from the western side of the allotment at 65 Weaver Street, giving the new allotment a total area of 382 square metres. Measured at the street boundary, this triangular area would have a frontage of 8 metres to Weaver Avenue. The “effective width” of this frontage is discussed later.

Development Plan Provisions

12. The relevant Development Plan is that for the City of Marion as consolidated on 11 December 2008. The subject land is located within the Residential (General) Zone of that Development Plan and, more particularly, within Northern Policy Area 15 of that zone.
13. In my opinion the provisions of the Development Plan of most relevance to this matter are as follows:

RESIDENTIAL (GENERAL) ZONE

Objective 1: A zone containing a range of dwelling types at low to medium densities.
This zone will be developed as a residential area containing a range of dwelling densities from low to medium, with a predominance of medium density housing in areas in close proximity to district or regional centres, public transport and public open space, and in the Medium Density Policy Area 16 and Redevelopment Policy Area 17. ...
PRINCIPLES OF DEVELOPMENT CONTROL
1 Residential development should comprise low to medium density dwellings of a range of types and styles to meet the diverse needs of the population.
2 Development should not have an allotment area or average site area per dwelling, or a frontage to a public road, less than those identified in the relevant Policy Area, unless it meets zone principle of development control 3, 4 or 5.
3 Other than for development on land with a frontage to an arterial road, development in Policy Areas 15, 16, or 18:
(a) on land containing an area greater than 1500m² (which may consist of contiguous allotments within the subject land of an application); or
(b) involving the replacement of a non-complying use,
may have a minimum allotment area or average site area per dwelling 10 percent less than the minimum identified in the relevant Policy Area.
Northern Policy Area 15
Objective 1: Maintenance and enhancement of the low scale, low-to-medium density residential character described in the Desired Character below.
...
Desired Character
The Desired Character of the Policy Area is of an attractive residential environment containing one and two storey, low-to-medium density dwellings of a variety of architectural styles. This will be achieved through a combination of the retention of existing housing stock in good condition, and the redevelopment of other properties generally at greater densities than that of the original housing. The overall character of the built form will gradually improve, while the range of dwelling types will increase to meet a variety of accommodation needs.
Amalgamation of properties is desirable where it will facilitate appropriately designed medium-density development. Medium density development should not be achieved at the expense of mature vegetation or significant trees on the development site or located where additional or relocated access points require removal of mature street trees in a road reserve that contribute positively to the landscape character of the locality.

PRINCIPLES OF DEVELOPMENT CONTROL
...
2 A dwelling should have an allotment area (and where the subject land will contain more than one dwelling, an average site area per dwelling) and a frontage to a public road not less than the following:

2 In the case of a hammerhead allotment, the area of the "handle" or right of way is excluded from the individual dwelling site or allotment area.
3 Other than for hammerhead allotments where the frontage to a public road should be no less than six metres.
3 An allotment for the purposes of a detached, semi-detached or row dwelling should have a depth of not less than 20 metres.
...
Council Wide Provisions
Principles of Development Control

...

48 Residential allotments should facilitate the siting of dwellings to face streets or public open space.
...
62 The appearance of land and buildings should not detract from the Desired Character of the relevant residential zone and policy area in terms of built-form elements such as:

...

(c) the manner in which buildings address public streets;
...
72 Setback of dwellings from public roads should:
(a) contribute to the attractive existing streetscape character of the area;
...
(c) be similar to or compatible with setbacks of buildings on adjoining land and dwellings in the locality;
...
97 Accessways servicing a hammerhead allotment or more than one dwelling should be designed and located to:

...

(e) reinforce or contribute to attractive streetscapes;
...

14. Also of some relevance are Council Wide Objectives 9, 13 and 50; Council Wide Principles of Development Control 2, 3, 31, 41, 96, 225, 226 and 236; and Metropolitan Objectives 1, 5 and 39.

The Evidence

15. The essence of Mr Tokley’s evidence was that the proposed new allotment would not contribute to the “attractive residential environment” sought as part of the desired character for the policy area, primarily because its frontage would be much narrower than was typical for existing detached dwellings in the locality. The irregular dimensions of the proposed new allotment would also, in his opinion, make it difficult for a new detached dwelling to be sited in such a way as to address the street in the way that most existing dwellings did.
16. There was a good deal of argument in this matter about whether the proposed new allotment was a “hammer-head” allotment. Mr McGreevy maintained that it was. Mr Tokley disagreed. Some of the minimum quantitative standards in the relevant Development Plan to be applied to allotments for detached dwellings vary, depending on whether a proposed allotment is seen to be a hammer-head allotment or a conventional allotment. Thus, Principle of Development Control 2 for Northern Policy Area 15 specifies that a detached dwelling should have a minimum allotment area of 375 square metres but, in the case of hammer-head allotments, the area of the “handle” – the access way to the allotment - is excluded from the calculation of this minimum allotment area. A minimum frontage to a non-arterial road of 12 metres is required for a conventional allotment but, in the case of a hammer-head allotment, this minimum is reduced to 6 metres. Principle of Development Control 3 requires any allotment to have a minimum depth of 20 metres.
17. In Mr Tokley’s opinion, the irregular shape of the proposed allotment was not one that met the usual planning definition of a hammer-head allotment. His primary approach to assessment, therefore, was to assess the proposed allotment as a conventional residential allotment. If the proposed development were approved, the new allotment would have an area of 382 square metres. It would thus satisfy the minimum allotment area requirement of 375 square metres. However, its frontage to Weaver Street, even if measured as 8 metres at the street, would be substantially less than the minimum of 12 metres required for a detached dwelling. Moreover, the frontage width measured at the street was exaggerated, in Mr Tokley’s opinion, by the “skewed” nature of the western side boundary. If the frontage were measured at the narrowest point between the two side boundaries, it would be either 5.3 metres or 6 metres, depending on whether the distance was measured perpendicular to the eastern or western boundary. Mr Tokley suggested that it was more appropriate to measure the frontage perpendicular to the eastern boundary which was itself perpendicular to the street. This would lead to the measurement of an “effective frontage width” parallel to the street of 5.3 metres – less than half the minimum width sought for detached dwellings in Northern Policy Area 15.
18. While Mr Tokley did not think that the proposed allotment was a hammer-head allotment, he was prepared to contemplate being wrong about this. He therefore assessed the proposal on the basis that the new allotment was a hammer-head allotment to see whether this would lead him to any different conclusions. The minimum frontage width permissible for a hammer-head allotment would be 6 metres under Policy Area Principle 2. On the basis of his calculation of an effective width of 5.3 metres, Mr Tokley concluded that this minimum frontage requirement would still not be met.
19. With regard to the area of the “handle” of the hammer-head allotment, Mr Tokley acknowledged that the irregular allotment shape made this difficult to measure but he suggested that the most reasonable approach was to see the handle as the triangular area defined by extending the western boundary from Weaver Street to its intersection with the eastern side boundary. This gave an area for the handle of 58.72 square metres, leaving a balance of 323.28 square metres. This was well short of the minimum of 375 square metres required by Principle of Development Control 2 for the policy area. Mr Tokley noted that, in accordance with Principle of Development Control 3(a) for the Residential (General) Zone, this minimum site area could be reduced by 10 per cent on land with an area greater than 1500 square metres. The total area of the subject land was 1614 square metres. If it were thought appropriate to apply this 10 per cent reduction to the proposed allotment, its minimum area would need to be at least 337.5 square metres in area. The proposed allotment would fail to meet even this reduced area by some 14 square metres by Mr Tokley’s calculation.
20. Thus, even if the proposed allotment were regarded as a hammer-head allotment, it would not meet the minimum requirements specified in the Development Plan for allotment size or frontage on Mr Tokley’s assessment.
21. With regard to the depth of the proposed allotment, Mr Tokley acknowledged that the way in which the proposed allotment was angled in relation to Weaver Street meant that the perpendicular distance from the street to the rear boundary varied substantially along that boundary. He calculated the average depth to be 17.15 metres which thus failed to comply with the minimum depth of 20 metres required by Principle of Development Control 3 for Northern Policy Area 15.
22. Turning to the likely effect of the proposed development on the streetscape of Weaver Street, Mr Tokley anticipated that fencing would be constructed along the western and eastern side boundaries of the triangular area of land giving access from the street and this, in his opinion, would channel views into the property from Weaver Street to the narrowest point. Most existing dwellings in the locality are located on conventionally-shaped allotments with dwellings oriented to the street and clearly visible from the street. On Mr Tokley’s assessment, the character of the streetscape is established at present by a reasonably consistent front setback of dwellings of 8 metres and side setbacks of 1 to 3 metres. This, combined with low-level front and side fencing and low to medium height landscaping, contributes to a regular pattern of development and generally attractive streetscapes in Weaver Street and in other nearby streets. The narrow effective frontage width of the proposed allotment would detract from this consistent streetscape character. It would be possible to meet the front setback requirements specified by Council Wide Principle 72, but inevitably any dwelling on the proposed allotment would be sited not on the triangular area of land close to the street but rather on the balance of the allotment. Views of any dwelling on the proposed allotment would be likely to be restricted, angled views from the street and such a dwelling would not therefore address the street in the way that most other dwellings in the locality do.
23. Mr Tokley acknowledged that hammer-head developments were contemplated in the policy area. In his view, a typical hammer-head development would see the establishment of a second dwelling behind another dwelling facing the same street and at a substantial distance – 30 metres or more - from that street, thus limiting its impact on the streetscape. However, in this case, any dwelling on the proposed allotment, while it would be behind the dwelling at 29 Adelaide Terrace, would have its frontage to Weaver Street. It would probably be visible to some extent from Weaver Street, but, as noted earlier, such views would be angled. Overall, it would be at odds with the pattern of siting of existing dwellings, it would not address the street in the way that existing dwellings do and it would not contribute, therefore, to the existing attractive streetscape character of the locality or to the attractive residential environment sought as part of the desired character for the policy area.
24. Mr McGreevy provided a statement in support of the proposed development which was received by the Court as Exhibit A1. He argued that the proposed development was sufficiently in accord with the provisions of the Development Plan to merit consent. Objective 1 for the Residential (General) Zone envisages a range of dwelling densities from low to medium “with a predominance of medium density housing in areas in close proximity to district or regional centres, public transport and public open space”. In Mr McGreevy’s view, the subject land was thus a suitable location for medium density housing as it was 600 metres from a district centre, 100 metres from a bus stop, 250 metres from a railway station and 50 metres from a small public reserve. The proposed development would retain two existing dwellings and eventually add a third, thus leading to a desirable increase in density.
25. Secondly, Mr McGreevy suggested that there had been a good deal of recent redevelopment in the area of the subject land in the form of hammer-head developments and group dwellings. In support of this argument Mr McGreevy provided a map, as Attachment 1 to his statement, which indicated land division proposals and approvals across an area of the City of Marion extending for about 600 metres to the north, south, east and west of the subject land. In the course of cross-examination, Mr McGreevy agreed that a significant part of the area depicted on this map lay outside Northern Policy Area 15. He further acknowledged that there was only one other land division with the characteristics of a “hammer-head” development within the locality defined by Mr Tokley.
26. Thirdly, Mr McGreevy argued that the character of the streetscape along Weaver Street would be improved by the removal of a five metre long iron fence at the access point to the proposed allotment which would reveal two mature trees behind this fence. The current side fence along the western side boundary of the property at 65 Weaver Street would also be removed, enabling the front of a dwelling constructed on the proposed allotment to be visible from the street. In his opinion this would be an improvement to the streetscape. While the frontage of such a dwelling might not be parallel to Weaver Street, it would be visible to some extent from Weaver Street and would be accessed by an unobtrusive driveway.
27. In Mr McGreevy’s opinion, the new allotment which he proposed was properly classified as a hammer-head allotment. According to Principle of Development Control 10(b) of the Residential (General) Zone a “hammer-head site” is one “where the building is behind another dwelling or dwellings fronting a public road”. The proposed allotment was behind the dwelling at 29 Adelaide Terrace and therefore complied, in Mr McGreevy’s view, with this definition. He also quoted a definition of a “battle-axe allotment” from Schedule 4 of the Development Regulations 2008. Clause 2B, subclause 8 of this schedule states that:

battle-axe allotment means an allotment or site that comprises—

(a) a driveway (and any related open space) that leads back from a road to the balance of the allotment or site; and

(b) a balance of the allotment or site that is the principal part of the allotment or site and that does not have a boundary with a road;

...

28. It was Mr McGreevy’s opinion that these requirements were met. The proposed allotment would have a driveway from Weaver Street and the balance of the allotment would not have a boundary with a road. He saw no problem, from his literal reading of these definitions, arising from the fact that the proposed allotment was behind a dwelling fronting Adelaide Terrace but would have driveway access to Weaver Street.
29. If the proposed allotment were properly classified as a hammer-head allotment then, in Mr McGreevy’s view, it complied with all relevant provisions of the Development Plan relating to allotment size and frontage. It would have a frontage to a public road of 8 metres, thus meeting the minimum requirement of 6 metres; it would have a depth along its northern boundary of 20 metres, measured from the rear boundary of the reconfigured allotment at 29 Adelaide Terrace; and it would comply with the requirements set out in Council Wide Principle of Development Control 47, and its associated Design Technique 47.2, relating to the width of access ways required for battle-axe or hammer-head allotments. In Mr McGreevy’s opinion the proposed allotment configuration would have advantages over the usual form of hammer-head allotment in that it would not have a long narrow driveway creating an “unattractive channel” which would detract from the character of the streetscape. A dwelling on the proposed allotment would also be visible to some extent from Weaver Street. This would not normally be the case with a hammer-head allotment and would be a positive outcome in his view.

Discussion
Is the proposal for a hammer-head allotment?

30. Mr McGreevy placed a good deal of weight in his evidence on the argument that the proposed new allotment would be a hammer-head allotment. The principal advantage to his case of so arguing was that Principle of Development Control 2 for Northern Policy Area 15 requires a conventional allotment for a detached dwelling to have a frontage not less than 12 metres, whereas for a hammer-head allotment the minimum is only 6 metres.
31. As indicated earlier, the relevant Development Plan defines a “hammer-head site” in Principle of Development Control 10(b) of the Residential (General) Zone as one “where the building is behind another dwelling or dwellings fronting a public road”. Mr Leydon pointed out that a “site” is not the same as an “allotment” and also that Principle 10 deals only with the categorisation of development for purposes of public notification. Mr McGreevy also drew attention to the definition of a “battle-axe allotment” in Schedule 4, Clause 2B, subclause 8 of the Development Regulations 2008, which states that:

battle-axe allotment means an allotment or site that comprises—

(a) a driveway (and any related open space) that leads back from a road to the balance of the allotment or site; and

(b) a balance of the allotment or site that is the principal part of the allotment or site and that does not have a boundary with a road;

...

32. It was common ground that the terms hammer-head allotment and battle-axe allotment refer to the same form of allotment and are interchangeable. However, Mr Leydon again noted that this definition from Schedule 4 of the Development Regulations is limited in its application to those matters relating to complying development which are the subject of Schedule 4.
33. I agree with Mr Leydon that the definitions referred to by Mr McGreevy are limited in their application. Neither “hammer-head allotment” nor “battle-axe allotment” is defined in the list of definitions provided in Schedule 1 of the Development Regulations 2008. Nevertheless, in my view the meaning of these terms in planning practice is clear and well-established. A hammer-head or battle-axe allotment is located behind another allotment which has a frontage to a public road. Access to the battle-axe or hammer-head allotment is gained by means of a narrow access way, wide enough to accommodate a driveway and any required public utility services. The shape so created resembles that of a battle-axe or hammer, with the access way forming the “handle” in each case and the balance of the allotment forming the axe blade or hammer-head, respectively. The area of the handle would typically be excluded from the calculation of the minimum site area required for a dwelling.
34. Both the battle-axe or hammer-head allotment and the allotment behind which it is located would normally have access to the same public road. However, instances can be found of battle-axe or hammer-head layouts being used to provide an allotment with an alternative access to a major road where, for example, it is desired to limit the number of access points to such a road.
35. Thus, while one would normally expect a battle-axe or hammer-head allotment to sit behind an allotment which has frontage to a public road and to gain access to the same road via the handle, there might be very occasional exceptions to this. It is not inconceivable, therefore, that the proposed allotment in the present matter could be appropriately classified as a hammer-head allotment, despite the fact that it sits behind a dwelling with a frontage to Adelaide Terrace but would gain access via a handle to Weaver Street.
36. It requires a good deal of imagination to see the shape of the proposed new allotment as resembling a hammer-head and, on balance, I am not inclined to regard it as a hammer-head allotment, although the matter is not clear-cut for the reason set out in the preceding paragraph. However, even if I were to conclude that the proposed allotment was a hammer-head allotment, that conclusion would not be decisive in this matter. As indicated earlier, if the proposed new allotment were regarded as a hammer-head allotment, it would still require a minimum frontage to the street of 6 metres rather than 12 metres. Mr Tokley’s evidence was that the “skewed” nature of the allotment’s western side boundary should be taken into account. In Poralka Investments Pty Ltd v City of Marion [2004] SAERDC 114 (to which both the Appellant and the Council referred), Commissioner Mosel had the following to say at paragraph 21:

It is my view that when the Development Plan speaks about the width of the frontage of the allotment it does so purposefully. The width is determined by measuring between the two sides using the perpendicular as the distance to remove the distortion caused by skewed boundaries and, as a consequence, the potential for misapplying the nominal frontage when undertaking an assessment against all relevant provisions.

37. Applying the approach suggested in Poralka, Mr Tokley concluded that the “effective width” of the frontage is more appropriately calculated at 5.3 metres. I agree with this.
38. The consequence of accepting that the proposed allotment is a hammer-head allotment would also be that the area of the handle is excluded from the allotment area, leaving an area which falls some 14 or so metres short of the minimum site area of 337.5 square metres arrived at by applying the provisions of Principle of Development Control 3 of the Residential (General) Zone.
39. Thus, even if the proposed allotment is characterised as a hammer-head allotment, it fails to meet the minimum requirements for allotment area and street frontage on Mr Tokley’s evidence, which I accept.
40. Mr Tokley calculated an average depth for the proposed new allotment of 17.15 metres. Mr McGreevy, using a different approach, arrived at a figure of 20 metres. Because of the irregular shape of the proposed allotment there are several alternative ways of calculating its depth and it is hard to conclude that any one is unequivocally better than another. However, even if one accepts Mr McGreevy’s approach, the depth of 20 metres achieved is the minimum specified by Principle of Development Control 3 for Northern Policy Area 15. As Debelle J noted in City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244 at para 13:

Prescribed minimum standards are not a statement of desired standards. They are no more than minimum standards. Had the Council intended that the prescribed minimum standards should be the norm, it would have said so in the Development Plan.

41. Overall, the proposed new allotment fails to comply with some required minimum standards and barely complies with others. It is well-established, however, that the assessment of a development proposal involves more than simply considering it against a checklist of minimum standards and that the essential question to be asked is whether the proposed development is conducive to the achievement of the desired character and qualitative provisions set down for the policy area and the zone. I turn next to this question.

Is the proposed development conducive to the achievement of the desired character of the policy area and the zone?

42. Mr McGreevy had prepared a sketch plan to show how a dwelling might be accommodated on the proposed new allotment, were it to be approved. This sketch plan was provided to the Court at p 23 of the Council’s book of documents (Exhibit R1). It was intended only to be indicative (and, indeed, it depicted the boundaries of the proposed new allotment rather differently from the way they appear in the formal land division application). However it was clear, given the nature and size of the proposed allotment, that there would be few alternative siting options available. Mr Tokley’s evidence was that a dwelling so sited would not contribute to the “attractive residential environment” sought as part of the desired character for the policy area. In particular, it would be at odds with the general pattern of development in the locality, comprising detached dwellings on conventional allotments oriented to and addressing the street. While he acknowledged that hammer-head allotments were envisaged in this Policy Area, Mr Tokley observed that a typical hammer-head allotment would lead to the establishment of a second dwelling behind another dwelling facing the same street and at a substantial distance – some 30 metres or more – from that street, thus limiting its impact on the streetscape. However, in this case, any dwelling on the proposed allotment, while it would be behind the dwelling at 29 Adelaide Terrace, would have its frontage to Weaver Street, and, subject to future decisions about fencing on this and adjacent properties, would be partially visible at an angle from that street. This would be out of character with the existing pattern of development and streetscape in the locality.
43. The majority of allotments in this locality, as Mr Tokley demonstrated, have areas between 650 and 750 square metres. Detached dwellings typically have frontage widths of 12 to 16 metres. During the view, one significant exception to this pattern was pointed out at 2A Allison Street where a detached dwelling has been constructed on an irregularly shaped allotment of some 460 square metres and with a frontage of only 4.93 metres. The way in which this dwelling addresses its street gives some impression of the way in which a dwelling on the proposed allotment might be sited and might relate to its streetscape.
44. In my opinion the development at 2A Allison Street does not provide a useful or appropriate precedent. It exists and now forms part of the locality but it serves to demonstrate the negative consequences of approving developments which are at odds with the general character of the locality and of a streetscape pattern in which most dwellings address the street. The proposed development, if approved, would be likely to create another undesirable precedent and on an allotment substantially smaller than that at 2A Allison Street – indeed, on what would be one of the smallest allotments for a detached dwelling in the locality.
45. I accept Mr McGreevy’s opinion that the current fencing along Weaver Street in the vicinity of the proposed new allotment is not particularly attractive. However, I am not persuaded that the removal of the existing fence, as a consequence of the proposed development, would be a sufficient reason to approve the proposal, given its other shortcomings.
46. This is a locality in which the provisions of the Development Plan give some encouragement to redevelopment at higher density. The zone provisions encourage medium density housing in areas in close proximity to district or regional centres, public transport and public open space. The subject land meets some of these requirements and is, in particular, within walking distance of a railway station. The Desired Character statement for Northern Policy Area 15 also encourages increased densities in some circumstances, although it qualifies this in a number of ways. It proposes “a combination of the retention of existing housing stock in good condition, and the redevelopment of other properties generally at greater densities than that of the original housing”. By implication, redevelopment will generally be of those “other properties” which are not in good condition, but there was no suggestion that the existing dwellings at 29 Adelaide Terrace and 65 Weaver Street were in anything other than good condition and it is proposed that both be retained.
47. While redevelopment at higher densities is envisaged on appropriate sites, this needs to occur without detracting from the overall character sought of “an attractive residential environment” and one element in achieving this is to require new allotments to have areas and frontages which are not less than the minimum set out in Principle of Development Control 2 for the policy area and in Principle of Development Control 3(a) for the Residential (General) Zone. As I have indicated above, even if the proposed allotment is characterised as a hammer-head allotment, it still fails to meet these minimum quantitative requirements. It also fails to meet the requirement of Council Wide Principle of Development Control 48 that “Residential allotments should facilitate the siting of dwellings to face streets ...” and Council Wide Principle of Development Control 62 which requires that “The appearance of land and building should not detract from the Desired Character of the relevant residential zone and policy area in terms of built form elements such as ... (c) the manner in which buildings address public streets”.
48. In summary, I prefer the evidence of Mr Tokley – the only witness to give expert evidence in this matter – that the proposed development would result in an allotment, whether characterised as a hammer-head allotment or not, that would fail to comply with the minimum frontage requirements in Northern Policy Area 15 for a detached dwelling. It would also be an irregularly-shaped allotment which would place such constraints on the siting of any detached dwelling built on it as to make it unlikely that it could address the street in the consistent way that most existing dwellings do and from which the existing positive elements of the streetscape are largely derived. Overall, therefore, the proposed development would not contribute to the “attractive residential environment” sought as a key element of the desired character for this policy area.

Conclusion

49. I have carefully considered all of the evidence and submissions put before me, 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.
50. There will be an order accordingly.