ANSTEY v CITY OF MITCHAM [2010] SAERDC 6 (22 January 2010)

Last Updated: 28 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ANSTEY v CITY OF MITCHAM

[2010] SAERDC 6

Judgment of Commissioner Hamnett

22 January 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a decision to refuse consent to constuct two single-storey detached dwellings - Residential (Central Plains) Zone - Policy Area 8 - issues of site frontage and width of proposed double garages - meaning of the words "main face of the dwelling" - impact on streetscape - proposed dwellings well-designed - appropriate landscape design - proposed development in accord with existing character of the locality and desired character for the policy area - Appeal upheld subject to conditions.

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

May v City of Mitcham (ERDC No. 233 of 1996), considered.

ANSTEY v CITY OF MITCHAM
[2010] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Background

1. This appeal concerns an application for consent to construct two single-storey detached dwellings at 10 Chamberlain Avenue, Clarence Gardens, in the City of Mitcham (“the Council”). The application (Development Application No. 080/1465/2008) was submitted on 3 October 2008 by Mr SV Anstey (“the Appellant”).
2. The Council notified Mr Anstey that this application had been refused by a notice dated 10 February 2009. A number of reasons for refusal were stated, relating to street frontages; site coverage; the desired character, objectives and principles of development control for the relevant zone and policy area; and the requirement, in Table Mit/7 of the Development Plan, that garages be set back from the street at least 1 metre more than the main face of the dwelling.
3. An earlier application to develop two detached dwellings on the subject land was refused by the Council in February 2008 (Development Application No. 080/1581/2007). This decision was also appealed against, a compromise proposal was eventually agreed upon and consent was granted by an order of this Court on 12 June 2008. The approved development included single garages. The present proposal is similar in essence but seeks to provide each dwelling with a double garage.
4. An appeal to the Court against the Council’s decision was lodged on 6 March 2009. On 20 July 2009 the Court made an order, pursuant to s 16(3) of the Environment, Resources and Development Court Act 1993, dispensing with the requirement for a conciliation conference, on the grounds that there was no reasonable prospect of a settlement. The matter therefore proceeded to a hearing, at which the Council was represented by Ms N Harris, of counsel, and the Appellant by Mr G Manos, of counsel. The Court heard evidence from two qualified and experienced town planners, Mr G Heynen and Mr D Batge. A view of the subject land and the locality was undertaken prior to the hearing.

The Subject Land

5. The subject land at 10 Chamberlain Avenue is formally described as Allotment 207 in Deposited Plan 3979, Certificate of Title Volume 5329, Folio 589, in the area named Clarence Gardens, Hundred of Adelaide. At present there is a detached dwelling dating from the 1950s on the land. The allotment is on the northern side of Chamberlain Avenue. It is flat and roughly rectangular in shape, with a frontage of 27.58 metres to the road, side boundaries each of 36.58 metres and an area of just over 1000 square metres. There are some trees and bushes at the rear of the land and along the side boundaries. The area between the front of the dwelling and the road reserve is largely given over to lawn.

The Locality

6. Mr Batge defined a locality comprising the length of Chamberlain Avenue, from Winona Avenue in the west to Winston Avenue in the east. Within this locality all existing development was in the form of detached dwellings on individual allotments, apart from a motor repair and petrol filling station, on the corner of Chamberlain Avenue and Winston Avenue, and a bowls club on the western side of Winona Avenue. Mr Batge described Chamberlain Avenue as “a relatively pleasant tree-lined street with predominantly single storey dwellings set well back from the street alignment at an average of approximately 8.2 metres”. In his opinion the level of amenity was moderate and increased as one moved along the street towards the west, away from the petrol station. Mr Batge observed three dwellings with two-storey elements in the street – a dwelling at number 25 with an upper storey within a steeply-pitched roof; a room above an open-sided carport at number 24; and a roof-top addition to the dwelling at number 7.
7. Generally, Mr Batge found Chamberlain Avenue to have a high degree of consistency in allotment frontage widths and front and side setbacks. In Mr Batge’s view the amenity and character of the street derived from dwellings predominantly of modest scale with substantial setbacks from the street frontage and, typically, a side setback of about 3 metres on one side, allowing for a driveway. Front setbacks were between 7 and 11 metres on the northern side of the street and 7 and 8 metres on the southern side, although these were reduced towards to the eastern end and were only 5-6 metres at numbers 3 and 5. Frontages were varied, ranging from about 14 to 17 metres. The subject land was distinctive in the street, having a frontage of 27.5 metres. The pattern of front and side setbacks contributed to what Mr Batge described as a low density and relatively open character.
8. Mr Batge observed a number of carports in Chamberlain Avenue, some with front roller doors. Three dwellings – numbers 3, 11 and 22 - had a garage or carport door set at or forward of the front wall alignment. These doors were single-width, although the garage door at 22 was wider than a normal single-width garage door by about 1 metre and occupied about 27% of the total façade width. Mr Batge found that most dwellings in Chamberlain Avenue presented facades to the street made up mainly of the walls of habitable rooms with their windows, entry porches and verandahs as the most conspicuous elements.
9. Mr Heynen’s locality was essentially the same as Mr Batge’s. He observed most of the characteristics of the locality described by Mr Batge, but with some differences in emphasis. Thus, Mr Heynen noted that many dwellings in the locality had undergone alterations in recent years, the most common addition having been the construction of a carport or garage built to a side boundary, either under the main roof or as a separate building. This had led to reduced side setbacks in these instances and it was no longer reasonable, in his view, to speak of a consistent pattern of side setbacks. Mr Heynen agreed that the density of the locality was low, with detached dwellings generally occupying allotments of 685 to 733 square metres, but exceptions to this general allotment size included both the subject land, with an area of more than 1000 square metres, and the property at 3 Chamberlain Avenue, which had an area of only 540 square metres. Mr Heynen noted that the most common dwelling style incorporated a hipped roof which was generally tiled. Wall materials included stone and brick, sometimes with quoins. Front fencing was typically low in scale and subordinate to the dwellings, allowing the well-maintained front yards to be easily visible from the street. Side boundary fencing in front of dwellings was also generally low or open, adding to the sense of openness of the streetscape. Street trees were regularly spaced and mature. Mr Heynen acknowledged that front setbacks were generally consistent but observed that most dwellings had two or three staggered elements, creating an impression of less regularity and more variation.
10. In summary, Mr Heynen found the locality to be one of low density development accommodating dwellings typically constructed in the 1950s, although some variation in design had occurred through subsequent building alterations. A “medium” level of amenity derived from:
    • a subtle variety of dwelling styles;
    • well maintained front yards with high levels of visibility;
    • well-maintained dwellings; and
    • regularly spaced mature street trees.
11. I find that the locality is appropriately limited to the length of Chamberlain Avenue, as both planning experts have done. This locality has an open character derived primarily from its consistent front setbacks and its pattern of dwellings which are clearly visible behind front gardens with lawns or low plantings. The mature street trees are a significant feature as one travels along the avenue. Dwellings are generally single-storey, but, as noted by Mr Batge, there are three dwellings with noticeable two-storey elements, including a distinctive two-storey dwelling with “Tudor” features at 25 Chamberlain Avenue. The level of amenity falls away towards the eastern end with some reduction in allotment size, smaller front setbacks and the filling station at the corner of Winston Avenue.

The Proposed Development

12. The proposal is to construct two detached dwellings, each with double garages. Approval has been granted previously for the demolition of the existing dwelling (080/1754/2007) and the division of the land to create an additional allotment (080/1699/2007). As noted earlier, there is also a current approval for two detached dwellings on the land, each with a single garage. The proposed allotment for the western dwelling (Dwelling 1) has an area of 500 square metres, while the allotment for the eastern dwelling (Dwelling 2) is very slightly larger with an area of 501 square metres. The two proposed dwellings have essentially the same floor plan and form. They differ only in some minor details, including the style of the bay window at the front of each dwelling and the facade materials.
13. Each dwelling comprises 3 bedrooms, a study, a lounge room, a combined meals and family room, a bathroom and en-suite and a double-width garage, accessed by a driveway with a 4.5 metre crossover to the street. The proposed development was set out in a set of plans and elevations prepared by “Homestead” and received by the Court as Exhibit A1. Details of the two dwellings are summarised as follows:

Dwelling 1
Site area	500m2
Site frontage	13.92m
Site coverage	42.5%
Impervious coverage	57%
Floor area ratio	.42
Private open space	26.2%
Setbacks Front Side Rear	8.5 1+1 6.5
Roof height	5.5m
On-site car parking	2 within the garage +1 additional space
Dwelling 2
Site area	501m2
Site frontage	13.64m
Site coverage	42.4%
Impervious coverage	57%
Floor area ratio	.43
Private open space	33.9%
Setbacks Front Side Rear	8.5 1 + 0.9 6.5
Roof height	5.5
On-site car parking	2 within the garage +1 additional space

14. A detailed landscape plan forms part of the application and includes the planting of some medium-sized trees and shrubs at the eastern side of the street frontage of each dwelling in order to partially screen the garages.

Development Plan Provisions

15. The relevant Development Plan is that for Mitcham (City) as consolidated on 18 September 2008. The subject land is located within the Residential (Central Plains) Zone of that Development Plan and, more particularly, within Policy Area 8 of that zone. The proposed development is neither a complying nor a non-complying form of development and needs to be assessed, therefore, on its merits.
16. In my opinion the provisions of the Development Plan relevant to this matter are as follows:

RESIDENTIAL (CENTRAL PLAINS) ZONE
Objective 1: Development comprising primarily detached dwellings within Residential (Central Plains) Policy Areas 8, 9, 10 and 12 undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality.
Objective 2: Development that accords with the desired character of the relevant policy area and allows for the retention of existing affordable housing wherever appropriate.
PRINCIPLES OF DEVELOPMENT CONTROL
Forms of Development
1 Development within the zone should be primarily for detached dwellings; other dwelling forms may be appropriate where the external design and appearance of such dwellings complements the predominant architecture, streetscape and low- density character of existing development within the locality.
2 Development should be in accordance with the desired character of the relevant policy area.
DESIRED CHARACTER
RESIDENTIAL (CENTRAL PLAINS) POLICY AREA 8
Residential (Central Plains) Policy Area 8 comprises the suburbs of Clarence Gardens, Melrose Park, Daw Park, Lower Mitcham, Clapham and portions of Cumberland Park, Bedford Park, St Marys, Pasadena, Panorama, Torrens Park, Kingswood, Mitcham and Netherby, and is identified on Maps Mit/27 to 34.
This policy area is characterized by dwellings constructed mainly between the years 1920 to 1970. The predominant dwelling style therefore comprises a mix of villas, bungalows and tudors built generally prior to 1940, and art deco, austerity, contemporary and conventional house styles constructed between the wars and afterwards.
This mix of housing styles contributes to the area's distinctive "traditional" character in some areas, and a more contemporary character in others. However within the policy area, typical streetscapes vary from streets of predominantly bungalow, art deco or contemporary styles, to streets with a mixture of building styles.
In a number of instances there are relatively isolated and homogeneous pockets of more modern building styles constructed through the 1970's and 1980's. These areas represent more recent development of large parcels of land that were re-subdivided following the initial subdivision and development of the area. Whilst these pockets of infill housing are distinctive in their appearance, they do not represent the predominant architectural character of the area.
Throughout the policy area, a number of more modern medium density housing developments have occurred. These include residential flat buildings, single-storey home units and semi-detached dwellings. Generally their form and appearance varies significantly from the prevailing detached dwelling character of the area. However they also provide a stock of alternative accommodation to the predominant three and four bedroom dwellings.
Specific features of the policy area that contribute to its character include a predominance of single-storey detached dwellings on generally spacious allotments with relatively uniform set-backs from road frontages. This results in the area's distinctive low-density character with generous proportions of open space, both in front of and behind dwellings, and wide and spacious streetscapes dominated by a combination of street trees and landscaped front gardens.
The provision of public open space and recreation throughout the area is generally poor, particularly in that part of the policy area north of Daws Road/Springbank Road. This constrains the appropriateness of the policy area to accommodate higher density development.
Future development within the policy area should complement the existing mixed character of development constructed between 1920 to 1970, by respecting and preserving the private open space and low density qualities of the area. The redevelopment of individual sites with replacement dwellings at higher densities has, in the past, often resulted in development significantly out of character with its locality and the loss of existing affordable housing stock. Such dwelling forms include blocks of low/medium rise flats or townhouses, including residential flat buildings that run down side property boundaries. These should not continue to be built as they do not complement or preserve the desired pattern and character of development.
New building forms should generally maintain the existing pattern and scale of detached dwellings with road frontage, although other forms of dwellings should also be provided to extend the range and choice of housing options available to the community.
To achieve new development at higher density than that prevailing, whilst maintaining the character of the area, such development should be located on larger sites (which may require the amalgamation of several existing allotments) to enable a planned and co-ordinated development. In such instances development should address the road frontage to maintain the existing streetscape character, and should either provide, or be located in proximity to, adequate public or private open space. New development should also ensure that site areas per dwelling are sufficiently large to provide an adequate provision of unbuilt-upon land, including private open space with each dwelling. Residential flat buildings may however be developed in duplex form in appropriate locations where they would be in context with existing streetscapes and the predominant character of the locality.
PRINCIPLES OF DEVELOPMENT CONTROL
Residential (Central Plains) Policy Area 8
1 Excluding residences comprising dependent relative accommodation, the minimum site area for a dwelling should be as follows:
(a) 500 square metres for a detached dwelling;
(b) 425 square metres for a semi-detached dwelling; and
(c) 400 square metres for any other dwelling, except as provided for under principle of development control numbered 2 of this policy area.
...
3 New housing, and in particular development on sites comprising two or more dwellings, should maintain, or where appropriate, enhance the streetscape in the locality through:
(a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality;
(b) the bulk, height and scale of the development being compatible with the predominant single-storey character of detached housing in the locality however dwellings of two storeys in height may be appropriate on sites immediately abutting the western boundary of the Pasadena High School;
(c) dwellings adjoining a street frontage having a siting and orientation to address the street in a manner similar to existing detached dwellings in the locality.
COUNCIL-WIDE PROVISIONS
...
Objective 5: Streetscapes and landscapes not impaired by substandard condition and appearance of land, buildings and objects.
...
Objective 12: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.
PRINCIPLES OF DEVELOPMENT CONTROL
3 New housing and other urban development should:
...
(c) create a safe, convenient and pleasant environment in which to live.
...
16 The site of a dwelling should have an area and dimensions that result in:
(a) development that complements the objectives and desired character of the zone within which it is located;
(b) convenient and safe vehicle access and parking;
(c) adequate provision of private open space;
(d) adequate building set-backs, landscaping and space around buildings so as to enhance the locality and streetscape; and
(e) appropriate solar access to dwellings;
Accordingly;
(a) a detached dwelling site should be capable of containing a rectangular space measuring not less than ten metres by 15 metres which is suitable for the construction of a dwelling sited in accordance with the relevant set-back provisions of this Development Plan.
(b) dwelling sites abutting a public road should have, unless otherwise indicated within a specific zone, a road frontage of not less than:-
(i) 15 metres for detached dwellings;
...
17 Dwellings should be provided with sufficient private open space to accommodate recreation and leisure needs for future occupants of the dwelling as well as the service functions of clothes drying and domestic storage. Private open space should be fenced or otherwise screened from view from the street, and located so as to receive reasonable access to direct sunlight.
In particular, private open space should meet the following requirements:
(a) direct ground floor access is to be provided from the living areas of the dwelling to an area of private open space.
(b) the private open space area is able to contain a rectangular area measuring at least eight metres by five metres for dwelling sites of 450 square metres or more in area and six metres by four metres for smaller dwelling sites, with the area having a gradient not exceeding 1-in-8.
(c) no dimension of the private open space area is less than 2.5 metres;
(d) no part of the private open space area includes driveways or car parking areas;
(e) the area of private open space area is not less than 20 percent of the total site area of the dwelling; and
(f) the private open space area is located and designed to take advantage of winter sunlight and available shade in summer, in accordance with principle of development control numbered 34.
18 Buildings and structures should be set-back a sufficient distance from road boundaries to:
(a) maintain or provide an attractive streetscape appearance through the provision of landscaping between dwellings and the street;
(b) incorporate existing vegetation where applicable;
(c) reinforce the desired character of the locality by complementing the set-back of adjacent dwellings;
(d) provide adequate space for the provision of on-site car parking;
(e) reduce the nuisance of traffic noise for occupants of dwellings;
(f) provide adequate visibility for motorists at intersections adjoining corner allotments, and
(g) where feasible, allow for vehicles to leave and enter sites abutting arterial roads in a forwards direction.
Accordingly, building and structures should be set back from road boundaries in accordance with Table Mit/7.
SETBACKS – RESIDENTIAL DEVELOPMENT
Buildings and structures (except as below) should be set-back from road boundaries the following minimum distances:

...
19 Buildings should be sited with respect to property boundaries so as to:
(a) maintain the amenity of adjoining dwellings in terms of noise, privacy and sunlight;
(b) provide adequate levels of daylight to habitable rooms within the dwellings;
(c) minimise the impact of bulk and scale of development on adjoining properties;
(d) create space between buildings for landscaping, maintain the character of the locality and help prevent a continuous facade of built-form viewed from the street;
(e) provide reasonable outdoor access between the front and rear yard of dwellings;
(f) provide adequate space to maintain areas between buildings and property boundaries in a clean, safe and healthy condition; and
(g) minimise impacts of overlooking from upper storeys of dwellings.
Accordingly, external walls of dwellings, other than party walls, should be set- back, -
(a) on allotments less than 450 square metres in area, not less than one metre from each side boundary; however, a garage or open-sided carport or verandah may be built to one side boundary.
...
21 Adequate on site parking should be provided to meet the needs of residents and visitors and not create a requirement for on-street parking that would create a danger to the free flow of traffic or cause nuisance to nearby properties.
Accordingly, on site parking should be provided so as to satisfy the rate applicable to the kind of development as follows:
(a) Multiple Dwelling, Boarding House, Residential Club.
One car parking space is to be provided for each lodging room.
(b) All Other Dwellings
(excluding development which comprises a hostel or nursing home, or aged persons accommodation defined as housing subsidised under the Aged Persons Homes Act or subsequent legislation).
Car parking spaces are to be provided on the site of a dwelling as follows:
Number of bedrooms or rooms Number of car parking spaces
able to be used as bedrooms
1 1
2 or more 2
22 Driveways should provide safe and convenient access to and from the site, and be located so as create a low impact on adjoining residential properties.
In particular, driveways should be in accord with the following requirements:
(a) Driveway access to any building should have a maximum gradient of 1-in-5; a driveway with a gradient exceeding 1-in-5 should be considered only if designed by a chartered professional engineer.
(b) Where an access driveway is designed to serve more than three dwellings on an allotment, the driveway is to be designed to have a minimum pavement width of:
(i) 5.5 metres for the length of the driveway, or 5.5 metres for the first five metres of the driveway and at any other appropriate locations to allow two vehicles to pass; and
(ii) where access is to an arterial or collector road, not less than six metres for the first five metres of the driveway from the road boundary or otherwise designed to allow vehicles to exit the site in a forward direction.
(c) Landscaping not less than 1.0 metre wide should be provided down one side of the driveway or between the driveway and adjoining property;
(d) Dimensions allowed for manoeuvring vehicles should accord with Australian Standard 2890.1 or subsequent amendment.
...
26 (a) Dwellings should:
(i) not detract from the character and amenity of adjoining development;
(ii) complement the desired character and streetscape of the locality;
(iii) if greater than one-storey in height, minimise overshadowing and intrusion into privacy of adjoining properties and impacts due to differences in scale; and
(iv) not be greater than two storeys or in any case 8.0 metres in height as measured from existing natural ground level ( as may be determined by survey, prior to any earth works being undertaken) to the highest point of the building.
...
(c) In any residential zone other than a Residential (Hills), Residential (Craigburn) Zone or Residential (Foothills) Zone, residential development should conform with each of the following requirements in all circumstances except where application of this principle would be inconsistent with an objective or principle of development control of the zone or, where relevant, policy area:
(i) a total ground floor area (including verandah area, carport and garage) not exceeding 40 percent of the area of the site;
(ii) the area of the site covered by impervious surfaces, including buildings, not exceeding 60 per cent of the area of the site; and
(iii) a floor area ratio not exceeding 0.5 (ie the total floor area of buildings on the site not exceeding half of site area).
27 (a) Dwellings
Development containing two or more dwellings should be designed to:
(i) enhance the streetscape and reinforce the desired character of the locality within which the development is situated by careful attention to the siting, orientation and design of dwellings, ensuring the scale is appropriate to the street, and adding to visual interest by means of suitable articulation and detailing;
(ii) be compatible with the built-form of existing dwellings in the locality;
(iii) take advantage of views to open spaces or other features of interest;
(iv) minimise impacts on habitable rooms of adjoining dwellings by positioning of adjacent windows and external doors;
(v) include a roof-form which is gabled, half gabled or otherwise articulated to add visual interest;
(vi) where appropriate, assist in screening noise from adjoining major roads, or neighbouring land uses through positioning and design of buildings;
(vii) have communal car parking facilities (if provided) located so as not to block views from dwellings but to allow casual surveillance by residents;
(viii) minimise the number of dwellings abutting any one adjoining property boundary; and
(ix) ensure that any driveway servicing two or more dwellings be sited no closer than one metre from an adjacent property boundary.
...
33 (a) Development should minimise the removal of existing vegetation on the site and provide appropriate replacement of any vegetation that is required to be removed. Development should not involve the removal of any remnant native vegetation or other vegetation that contributes to the character of the site and the desired character of the locality.
...
(c) Development should provide landscaping that enhances the appearance and amenity of the site and complements the desired character of the locality. Landscaping should incorporate species of a type and size appropriate to their location, and have regard to the species contained in Table Mit/2. In particular development of group dwellings, residential flat buildings, row dwellings, multiple dwellings, boarding houses or accommodation for the aged should provide effective landscaping to assist in enhancement of buildings, screening and shading private open space and car parking areas, and screening utility and storage areas.
...
78 Development should conform with the following principles relating to traffic, parking and vehicles access, in addition to any relevant land use specific parking standards:
...
(f) Development should provide sufficient off-street parking to accommodate resident, visitor, customer, employee, and service vehicles.
...
149 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.
...
153 Development should incorporate landscaping as an integral part of the design of the development.
...
158 Landscaping should enhance the appearance of development, establish visual buffers to adjacent development and screen service, loading, outdoor storage and car parking areas.

17. Also of some relevance to the assessment of this proposal are Metropolitan Adelaide Objectives 9 and 43; Metropolitan Adelaide Principles of Development Control 3, 9 and 11; Council Wide Objectives 8, 13, 14, 15 and 17; and Council Wide Principles of Development Control 31, 37, 40, 154, 156, 157 and 181.

The Evidence

18. Mr Batge’s evidence was that the proposal met the requirements of the Development Plan in relation to car parking; access; floor area ratio; the provision of private open space; the rear boundary setbacks; privacy and overshadowing; and the on-site management of stormwater. However, he found the proposal to be at odds with the existing and desired character for the street, principally because
    • the site frontages were narrower than those found in the locality - 1.36 metres and 1.08 metres narrower respectively than the 15 metre minimum specified in Council Wide Principle of Development Control 16 and 4.5 m short of the average allotment width along Chamberlain Avenue by Mr Batge’s calculation;
    • reduced space between the proposed buildings and their neighbours, reducing the opportunity for the retention of existing vegetation or the provision of new landscaping, except towards the front of the land; and
    • the excessive width of the garages (as a proportion of the overall building façade) and the consequential visual dominance of the garages.
19. The combined effect of these shortcomings resulted in a development proposal inconsistent with both the existing and desired character of the zone and locality in Mr Batge’s opinion. Specifically, he found the proposed development to be at odds with Objective 1 for the Residential (Central Plains) Zone requiring development that “complements the predominant architecture, streetscape and low density character of existing development in the locality”; Objective 2 which seeks development that “accords with the desired character of the relevant policy area”; the Desired Character statement for Policy Area 8 which requires that “new building forms should generally maintain the existing pattern and scale of detached dwellings with road frontage”; and Principle of Development Control 3 for Policy Area 8 which requires that “New housing, and in particular development on sites comprising two or more dwellings, should maintain, or where appropriate, enhance the streetscape in the locality”.
20. Mr Batge placed particular emphasis in his evidence on the provisions of Council Wide Principle of Development Control 18 and the related Table Mit/7. Principle 18 deals with setbacks from road boundaries. Table Mit/7 provides quantitative standards for such setbacks in a range of different circumstances. In the case of the subject land, where there is an established streetscape, the table requires the proposed dwellings to be set back the average setback distance of the dwellings located on either side. It also requires a garage to be set back at least one metre more than the main face of the dwelling.
21. Mr Batge accepted that the proposed buildings, with a setback of at least 8.5 metres, were set back a sufficient distance from the road boundary to conform with the average setback of the neighbouring existing dwellings. However, in his opinion, the proposed development did not comply with the requirement that the garage door should be set back at least 1 metre from the main face of the dwelling. Mr Batge’s argument was that the front bedroom of each dwelling made up a smaller part of the overall façade of the building than did the garage and, on this basis, he concluded that it was the garage that comprised the “main face of the dwelling”. He argued that the intent of Table Mit/7 was to limit the aesthetic impact of garages on the streetscape. In this case, while each garage would be set back a metre from the main bedroom front wall, the garages would still be the dominant features of the façades of the two dwellings. The impact on the streetscape would be exacerbated by the fact that there would be two dwellings side by side, both with dominant garages. Mr Batge also noted that the sites of the proposed dwellings, with frontages of 13.92 metres and 13.64 metres respectively, failed to comply with the minimum frontage requirement of 15 metres specified in Council Wide Principle of Development Control 16. These narrower frontages would further emphasise the dominance of the garages in his opinion. The failure to meet the maximum site coverage of 40 per cent set out in Council Wide Principle of Development Control 26, albeit by a fairly trivial amount, was a further indication, in his opinion, that the development was at odds with the generally low density, open and spacious character of the locality.
22. Mr Heynen observed that there was a clear hierarchy of residential zones in the Mitcham Development Plan. The Central Plains Zone was at the lower end of that hierarchy and, in his opinion, design requirements were not as strictly expressed for Policy Area 8 as they were for historic conservation zones or policy areas elsewhere in Mitcham. He also pointed out that Policy Area 8 allowed for dwellings with site areas as small as 400 square metres under certain circumstances.
23. With regard to the impact of the proposed development on the streetscape, Mr Heynen noted that there was no intention in the proposal to build to a side boundary, whereas there were several examples in the locality of carports or garages built to one boundary, as allowed by Council Wide Principle of Development Control 19, and with a setback of only 1 or 2 metres from the other. The proposed development would thus allow more space for landscaping along its side boundaries than was the case with other dwellings in the locality.
24. Mr Heynen disagreed with Mr Batge’s interpretation of Table Mit/7 and argued that the reference to “the main face of the dwelling” referred to the habitable rooms – in this case the front bedroom of each of the proposed dwellings. The garage was a separate element, to be distinguished from the dwelling. On this basis Mr Heynen was satisfied that each garage was set back the minimum required distance of 1 metre from the main face of its associated dwelling. The arrangement of the façade of each dwelling, divided between a habitable room, a front porch and a garage was “fairly conventional” in Mr Heynen’s opinion. The siting of the dwellings had avoided placing the two double garages next to each other which might have led to a greater impact on the streetscape. Mr Heynen also noted that, although not directly relevant to this matter, the conditions applying to complying development in this zone, set out in Table Mit/1, would require that any dwelling should not have garage or carport doors with a total or aggregate width exceeding one third the width of the site of the dwelling. In this case, by his estimate, the garages for each dwelling were about one third of the site width. And, with regard to the failure of the two dwelling sites to achieve the minimum frontage of 15 metres specified in Council Wide Principle of Development Control 16, Mr Heynen pointed out that the Council had already granted consent for the land to be divided into allotments with frontages slightly less than 15 metres (Exhibit A8).
25. It was Mr Heynen’s further evidence that double garages were now the norm in new residential developments. Their provision in this instance was in line with contemporary community preferences, in his opinion, and was consistent with the paragraph in the Desired Character Statement for Policy Area 8 that “new building forms should generally maintain the existing pattern and scale of detached dwellings with road frontage, although other forms of dwellings should also be provided to extend the range and choice of housing options available within the community”. Nevertheless, the proposed garages were somewhat narrower than typical double-garages in Mr Heynen’s opinion, each being about 2 metres wider than the previously approved single garages.
26. With regard to Council Wide Principle of Development Control 27(a) relating to “General Site Planning and Design”, Mr Heynen found that this principle was met. The proposal was to construct two single-storey detached dwellings and it would therefore be consistent with the predominant built form of existing dwellings in the locality. It would maintain the streetscape, as required by Principle of Development Control 3 for Policy Area 8, and it would enhance that streetscape through the quality of the design of the proposed dwellings. The materials and roof forms had been chosen to be consistent with the predominant existing character of the locality and the detailed landscaping proposals would provide some screening of the garage doors when viewed from the street, while maintaining the open character of front gardens in the street in other respects.
27. Overall, Mr Heynen found that, while the existing character of the locality was somewhat mixed, the proposed dwellings would contribute to the desired character for the zone by providing two single-storey detached dwellings, each set back an appropriate distance from the road and with a “traditional backyard”. Building materials, roof design and height were all consistent with the desired character sought for the zone.

Discussion

28. As noted at the outset, the Council had previously approved two dwellings on the subject land which were similar in most respects to the current proposal, except that they had single garages rather than double garages. The Council had also approved a land division to create sites for these previously approved dwellings. Given that the size of the garages was the principal difference between the previously approved dwellings and the current proposal, it was not surprising that a good deal of the evidence in this matter was about the impact of the proposed double garages. In relation to this evidence I do not agree with Mr Batge’s argument that the proposed garages form “the main face of the dwelling”. I prefer Mr Heynen’s distinction between the dwellings proper and the garages as separate elements. In support of this opinion Mr Manos referred the Court to the judgment in May v City of Mitcham (ERDC No. 233 of 1996) where, in a matter concerned with semi-detached dwellings joined by their garages, Commissioner Wallman had the following to say at p 15:

The last and most argued question in this analysis is whether the two dwellings would be “joined together” and form, “by themselves”, a single building. I find that the dwellings would not be joined together because they would be separated by garages which would not be components of the dwellings with which they are intended to be associated.

29. I believe that the same reasoning is appropriate in this case and that, in fact, two buildings are proposed, each of which contains a dwelling and a garage. I find the garages to be set back the appropriate minimum distance behind the main face of the associated dwelling as required by Table Mit/7.
30. Having said that, I do not believe that the principal task in this case is to construe precisely the meaning of one provision of Table Mit/7. Rather, it is to determine whether the proposed development, overall, warrants consent having regard to all of the relevant provisions of the Development Plan. I do accept that it is not generally desirable in new residential developments for double garages to form a dominant feature of the façade, but a planning judgment will usually be required, based on the facts and circumstances of a particular case, and taking into account the details of the proposed design, the character of the locality, the desired character for the zone and policy area and the overall intent of the Development Plan. I find, when a full assessment is made of the relevant quantitative and qualitative provisions of the Development Plan in this case, of the existing character of the locality and of the desired character for the zone and for the policy area, that the proposed development merits consent. The dwellings are well-designed to fit into the existing streetscape as detached, single-storey dwellings with appropriate roof forms and materials. They are set back from the road frontage a distance which is consistent with neighbouring dwellings. They are closer to their side boundaries than some, but by no means all, dwellings in their locality. The double garages will have some impact on the streetscape but this will be reduced by the design of the driveways, with their single-width crossovers which allow space for landscaping. The detailed landscape proposals seem well-considered to me in the balance that they strike between providing some screening of the garage doors while maintaining the general openness of the streetscape and the selected species also seem appropriate. For these reasons, which are essentially the reasons contained in Mr Heynen’s evidence and which I prefer to those of Mr Batge, it is my intention to uphold the appeal.

Conclusion

31. I indicated to the parties by memorandum that, for the reasons stated above, it was my intention to allow the appeal and to grant development plan consent to the proposed development. I invited them to confer on draft conditions of consent. Agreed conditions were submitted to the Court on 21 January 2010 and I have incorporated these into my decision which is out below:

Decision

32. I have carefully considered all of the evidence put before me, the submissions of counsel, the relevant provisions of the Development Plan and everything I saw on the view. Having done so, it is my planning judgment that development plan consent should be granted.
33. The appeal is upheld. Development Pan consent under the Development Act 1993 is granted to Development Application No. 080/1465/2008 for the construction of two detached dwellings, garages and porticos on the land described in Certificate of Title Register Book Volume 5329, Folio 589, known as 10 Chamberlain Avenue, Clarence Gardens, subject to the following conditions:

1. The development must be carried out in strict accordance with the plans specifications contained in Development Application No. 080/1465/2008, except as varied by the conditions of consent below.

2. All works detailed in the approved plans and required by any condition of approval must be completed prior to the occupation of the development.
3. All external materials, colours and finishes must be non-reflective and must be of dark natural colours to blend with the landscape.
4. The erosion control measures must be maintained throughout the progress of the (approved buildings) work(s).
5. The approved landscaping must be established within 6 months from occupation of either dwelling and maintained in good condition at all times to the reasonable satisfaction of the Council. Vegetation shall be properly replaced if it dies or becomes diseased.
6. The proposed decking shall be constructed to allow rain water to pass through it to keep the total impervious area of the site at or below 60%.
7. Stormwater must be disposed of in such a manner that it does not flow or discharge onto land of adjoining owners, lie against any building or create insanitary conditions.
8. Temporary debris and sediment control measures must be installed to ensure debris, soil, soil sediments and litter are maintained within the construction site. Debris, soil, soil sediments and litter from the construction site must not enter Council's drainage system, Council's road network or neighbouring properties.
9. Any portion of Council's infrastructure damaged as a result of work undertaken on the allotment or associated with the allotment must be repaired/reinstated to Council's satisfaction at the developer's expense.
10. All earthworks associated with the development must be stabilised in accordance with standard engineering design and practices against erosion and failure.
11. The driveway for house 2 as depicted in the approved plans must be constructed at least 1.2 metres away from the trunk of the existing street tree.