H. L. DEWING v CITY OF MITCHAM [2010] SAERDC 9 (15 March 2010)

Last Updated: 17 March 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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H. L. DEWING v CITY OF MITCHAM

[2010] SAERDC 9

Judgment of Commissioner Mosel

15 March 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Application to divide land into three new allotments – Residential (Hills) Zone – consent refused – proposed development directly related to the subject matter in ERD 09-248 – contemporaneous hearings – whether the assessment of the land division should be undertaken alone, considered and decided – area and dimensions of the new allotments variously depart from quantitative provisions – whether the departures are of such an extent as to conflict with the Zone’s Objective and Statement of Desired Character (DCS) is the central planning issue – the terms of the DCS considered – land division for the purpose of semi-detached dwellings found to be consistent with the broad intent of the Zone – appeal turns on the area and dimensions of Lot 32 – the character of the locality a factor in the assessment – area and dimensions of Lot 32 conflict with the Zone’s objective, certain goals expressed by the DCS, the provisions of Principle 43 and aspects of the character of the locality – appeal dismissed.

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

Moseley v City of Port Adelaide Enfield [2007] SASC 88; Kokkotos v City of Mitcham [2000] SAERDC 13, considered.

H. L. DEWING v CITY OF MITCHAM
[2010] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against the decision of the Mitcham Council (“the Council”) to refuse consent to a development application (DA 080/1042/2009) for development plan consent (and land division consent) to divide the land situated at 63 and 65 Gloucester Avenue, Belair (“the land”) into three new allotments. The decision to refuse the consent applied for was made on 2 September 2009. The appeal was lodged on 18 September 2009.
2. The subject matter of this appeal is related to the appeal by P. Dewing (ERD 09-248) against an earlier decision by the Council to refuse development plan consent for the construction of a detached dwelling and two semi-detached dwellings on the three new allotments. That proposal would also necessitate the demolition of the two dwellings that now occupy the land. The decision of the Council was made on 3 June 2009. The appeal was lodged on 26 June 2009 and is the subject of a separate decision – P. Dewing v City of Mitcham [2010] SAERDC 10 (“the land use appeal”).
3. Mr Hilditch appeared for the appellants. Ms Shute appeared for the Council. Sworn evidence was given by two qualified and experienced town planners: Mr Heynen (in the appellants’ case), and Mr Batge (in the Council’s case).

A single development for assessment?

4. The ultimate goal of both appellants is to remove the existing buildings and redevelop the land in the manner proposed in DA 080/902/2008. However, following certain authorities of the Supreme Court, the most relevant being Moseley v City of Port Adelaide Enfield [2007] SASC 88, it was necessary to succeed in dividing the land into separate allotments for a proper assessment to be made by the Council. So, from the view point of both the above appellants, the proposals are inextricably linked. That being the case, the merits of the proposals to divide the land and, ultimately, to construct dwellings on the new allotments was put for hearing as a “package of development” and the appeals were heard together.
5. As a consequence, there are two questions to be considered: should the merits of the proposed development in each of the appeals be assessed and determined as if it was a single development? If not, in what sequence should the assessment be undertaken and the determination of the appeals made? Those questions are resolved by reference to the decision of Debelle J in Moseley. At para 15 his Honour said:

Thus, an application for development approval involves a question of definition, what land and what use? A planning authority must therefore be able to ascertain the land intended for development when performing its duty under Regulation 16 to determine the nature of the development. That is one reason why the planning authority is entitled to know whether an allotment will be dedicated to the use proposed. More importantly, the question whether an allotment should be divided in a particular way should, as a matter of planning principle, if not also as a matter of common sense, be determined before any development upon that land has taken place. Good town planning requires land to be divided in an appropriate manner consistent with relevant planning principles. Logically, the division of land comes before the approval of any development of the land. If a development is approved before the approval of the land division, it has a real potential to put undesirable constraints upon a planning authority considering whether it is proper to grant consent to the proposed land division. If that is not the position, there is a real potential for undesirable development.

6. The principles falling from Moseley are apposite to the subject matters of the appeals now before me. The division of land would bear directly on the nature of the dwellings proposed and thus the assessment of their planning merits. It would also be the subject of separate assessment against the provisions of the relevant development plan, many of which speak directly to the merits of land division of itself. It follows that a decision on land division should be first determined. In the words of Debelle J:

To approve a development not knowing whether there is to be a successful application for land division can only be described as an extraordinary, if not cavalier, approach entirely at odds with the goal of orderly and economic development and the application of sound planning principle.

7. This appeal is in respect of a land division, the purpose of which is to create three allotments specifically for the purpose of accommodating the detached and semi-detached dwellings the subject of the land use appeal. Insofar as it is necessary to have regard to the intended use of the allotments (refer Principles 44 and 45 below), the appropriate approach, in my opinion, is to regard the term “intended use” in the abstract. That is to say, the intended uses are, in the general sense, for a “detached dwelling” and two “semi-detached dwellings”. The specific type and design of dwelling for which application has been made would have little bearing on the assessment. My views in this respect are reinforced by the decision of Commissioner Hodgson in Kokkotos v City of Mitcham [2000] SAERDC 13. In that matter, much of the evidence concerning the division of land was directed toward the form of siting and future dwellings on the proposed allotments. Commissioner Hodgson said, at para 17:

... In a general sense, these matters are relevant to an application for division of land, but only to the extent that they bear on the question of the suitability of the land for future residential development in a generic, rather than particular, sense.

8. Because the proposed land division has a direct bearing on the nature of the dwellings for which application has been made it follows that, in the event that the proposed land division fails to satisfy the relevant provisions to an adequate extent, the very basis of the proposal to use the land in the way specified in the land use appeal would not exist. In those circumstances, it would be open to the Court to dismiss the land use appeal. Although there were no submissions on the point, when applied to the appeals now before me, it would be difficult to construe the principles falling from the decision in Moseley in any other way.

The land and the locality

9. The land is made up of two (roughly) rectangular allotments of similar size, each containing a single storey dwelling. The land has a frontage of about 36.58m to Gloucester Road, an average depth of about 47.9m and an area of 1,741m².
10. It is a relatively flat parcel of land. The two dwellings are many decades old. One is in a moderately maintained condition. The other is generally run down. On the land are several small-to-medium sized (non-significant) trees and outbuildings in poor condition.
11. There is little difference between the localities defined by Mr Heynen and Mr Batge. Having viewed the land and its environment, I consider the area identified in Attachment 2 to Mr Batge’s statement of evidence (Exhibit R2) to be the most relevant to the assessment. It is an oval shaped area extending in a north-east / south-west direction from Yorke Avenue to about 80m south of the Gloucester Avenue / Gault Road intersection and in a north-west / south-east direction from 80m west of Gloucester Avenue to Bowman Avenue.
12. The road pattern in the locality divides the built-upon area into three segments. To the west of Gloucester Avenue is a large aged care complex known as the Kalyra Heights Retirement Village (“the retirement village”). Within this part of the locality the retirement village is made up of attached and detached single storey dwellings, an administration building and car parks.
13. In the wedge of land formed by Gloucester Avenue, Gault Road and the locality boundary are single storey dwellings also forming part of the retirement village. The dwellings are attached and appear to be sited in pairs.
14. The remainder of the locality – bounded by Gloucester Avenue, Yorke Avenue, Bowman Avenue and Gault Road – is a conventional residential area made up mainly, but not entirely, of single storey detached dwellings on large allotments.[1] The land is within this sector. Although there are some differences between Mr Batge and Mr Heynen in their estimates of the range of allotment sizes, I accept Mr Batge’s view that (with the exceptions noted) they range in size from 743m² to 919m² and that the average area and frontage are about 877m² and 18.12m respectively.
15. The amenity of the locality is unexceptional. The quality of the buildings and their settings in the retirement village is, as would be expected, very pleasant. This stands in contrast with the buildings in the eastern sector of the locality. Here many of the buildings and their sites are in moderate, sometimes unkempt, condition. Most buildings are modest in size with generous rear yards. Many of the allotments have on them groups of trees with high canopies. Although this part of the locality could be said to have a pleasant landscaped character, it can be distinguished from the (heavily vegetated) landscape and spacious character of land east of Bowman Avenue.

The proposed division of land

16. The proposed land division is depicted at p78(a) of Exhibit R1. The division would create three allotments from the land which is currently made up of two allotments. The new allotments would have the following dimensions and proposed uses:

Lot No	Area	Frontages	Depth	Proposed Use
Lot 30	582m²	12.42m	46.81 - 47.55m	Semi-detached dwelling
Lot 31	584m²	12.77 m	47.55 - 48.29m	Semi-detached dwelling
Lot 32	575m²	11.89 m	48.29 - 49.00m	Detached dwelling

17. The proposed plan of division also depicts the outline of a detached dwelling and two semi-detached dwellings on the allotments intended for them. Their shape and siting are consistent with those proposed in, and subject to, the land use appeal.

The Development Plan

18. The land is within the Residential (Hills) Zone (“the Zone”) of the Council’s development plan. It is also within the Bushfire Protection Area depicted in Figure Mit (BPA)/9. The relevant Development Plan is the version dated 24 April 2008 (“the Plan”).
19. The Zone mainly covers the Council’s residential suburbs situated in the Mt Lofty Ranges. Its coverage is large and includes Belair, Blackwood, Hawthorndene, Glenalta, Eden Hills, Bellevue Heights and Coromandel Valley. Its sole objective is 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.

20. Following this objective is the statement of the desired character for the Zone (“the DCS”). The whole of the DCS is relevant when considering the subject matter in this appeal. Nevertheless, the appellant made particular mention of the following passage:

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.

21. The above emphasis distinguishes an aspect of the DCS that has direct application to the nature of the proposed land division. That is, to create three new allotments all of which are, arguably, substantially smaller than that which exists in the locality.
22. Whether the proposal as a whole is sufficiently consistent with the DCS is a question that is assisted by, inter alia, reference to the following passages of the DCS:

The zone generally comprises the residential suburbs of the City of Mitcham that are situated in the Mount Lofty Ranges. 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.

23. By virtue of Principle 1 for the Zone development, which includes land division, should be in accordance with Objective 1 and the DCS. Because the proposed land division would create new allotments for the specific and intended purpose of constructing a detached dwelling and semi-detached dwelling, the following Zone principles are relevant.
    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

24. The provisions in the Plan that speak directly to land division are within the Council wide section. Those of most relevance are as follows:
    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.

25. The terms of Principles 44, 45 and 48 make it necessary to have regard to the future use of the new allotments. As I said earlier, an assessment of a land division against these principles is undertaken by considering the intended use in the abstract. Although some guidance might be obtained from the specific buildings for which consent has been sought, the appropriate reference is to those provisions that are relevant to the issues that apply to residential development generally.
26. Having considered the decision in Kokkotos and all relevant circumstances in this appeal, when assessing the proposal against Principles 44, 45 and 48, I have taken into account the provisions under the heading “Residential Development” that are directed towards ‘site area and dimensions’ (Principle 16), Private Open Space (Principle 17) setback distances (Principles 18 and 19), and general site planning and design (Principle 27). Also for consideration is Principle 6 for the Zone.

The issues

27. If provisional development plan consent and land division consent was granted, three new allotments would be created in place of the existing two allotments. That certain aspects of the new allotments would depart from certain quantitative provisions in Principles 3 and 5 above is not a matter of contention between the parties. Specifically the former sets down, for a detached dwelling, a minimum area of 1,200m² and a frontage of 12m. The respective measures for Lot 32 would be 575m² and 11.89m. For a semi-detached dwelling, Principle 5 establishes a minimum area of 600m². The proposal would create allotments (Lots 30 and 31) with areas of 582m² and 584m² respectively.
28. What, in planning terms, are the consequences of the departures? Some are, arguably, inconsequential. However, such a conclusion could not be reached in respect of Lot 32. Its area is less than one-half of that established as a “minimum” in Principle 3. In any language that is a substantial departure from a clearly expressed and relevant principle for the Zone. However, to the extent that the magnitude of the departure is a relevant consideration, the terms of the DCS introduces a complexity into the assessment.
29. The terms of the DCS at para 20 above speak against the division of land into allotments that are substantially smaller than existing allotments because of the risk that future development on those allotments poses to the retention of the Zone’s existing character. I do not think the parties would disagree that Lot 32 would be anything other than substantially smaller than comparable allotments in the locality. Mr Hilditch contends the terms of the DCS support the proposal because the land does not possess the features sought to be preserved.
30. Broadly speaking, whether the proposed division of land merits consent is an issue that can be resolved by carefully weighing the above circumstances against the following question: are the shortfall(s) of such an extent that one or more of the new allotments would constitute a division of land incompatible with Objective 1 for the Zone and Council wide Principle 43 or conflict to an unacceptable extent with the terms of the DCS that have the explicit goal of retaining the various elements that make up the overall character of the Zone?

The appellant’s case

31. As I said earlier, the appellant’s case in respect of this appeal is inextricably linked to the subject matter of the land use appeal. The submissions were made and, in the main, the evidence led on that basis. For the reasons outlined earlier, the question of land division must be separated from those pertaining to the development proposed in the land use appeal.
32. After careful consideration of the submissions and evidence, the main thrust of the appellant’s case in support of the land division is as follows. First, Mr Hilditch submitted that the intended uses for the land are appropriate. The proposed use of Lot 32 for a detached dwelling speaks for itself. As to the intention for Lots 30 and 31, the terms of Principle 5 indicate (subject to satisfying, gradient, site area and road frontage guidelines) that the Plan expressly contemplates the establishment of semi-detached dwellings in the Zone. In other words, the purpose of the land division is consistent with the intent of the Zone. Secondly, with reference in particular to Mr Heynen’s evidence, Mr Hilditch submitted that the land and its locality does not possess the “essential elements” that make up the Zone’s character and which are sought to be protected by the DCS (para 20 above). Because the land is flat, there are no drainage or creek lines across it and it is not heavily vegetated, Mr Hilditch contended that the land is expressly suited for division and development in the manner proposed. It is for this reason, Mr Hilditch said, that the DCS does not use the allotment area of 1,200m² in Principle 3 as the guideline to be observed. Thirdly, by reference to Mr Heynen’s evidence, the concessions made by Mr Batge in cross-examination and Principles 3 and 5, Mr Hildtich said that the shortfall in the areas of all proposed allotments and the frontage of Lot 32 do not establish unacceptable conflicts with the character of the locality nor confer on it adverse planning consequences when each of the dwellings are assessed against many of the relevant Council wide provisions and Zone Principle 6. Finally, Mr Hilditch submitted there existed in the locality several features that distinguish it from the Zone as a whole that together act in favour of the proposed land division in the manner proposed. The fact that allotments in the locality do not, (and, unless extraordinary circumstances occur, cannot) meet the desired minimum of 1,200m² is one such factor. Other features identified by Mr Hilditch include the presence in the locality of the retirement village, a number of smaller than average parcels, and the bus route along Gloucester Avenue.
33. Mr Heynen appeared in the case for the appellant. Although his evidence was led on the presumption of a single proposal, his statement of evidence in Exhibit A2 outlines the reasons for reaching the conclusion that the proposed land division considered alone adequately satisfies the relevant provisions. His reasons may be summarised as follows. First, the terms of the DCS support his opinion that the land and its locality have particular characteristics that can be distinguished from those sought to be retained. That is to say, the presence in the locality of allotments ranging in area from 455m² to 905m², the reality of the retirement village (its overall character and density), the absence of “rugged topography”, “significant amounts of vegetation” and “creeks and drainage lines” and the “very high open space to built-form ratio” are features generally expected in that part of the Zone described in the DCS as having a conventional grid or formal development pattern. These characteristics, he said, can be distinguished from those present in the Zone as a whole which, if I understand his evidence correctly, are expressed in the following passages of the DCS:

... 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.
... Other areas have developed with windy 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.

34. Crucial to Mr Heynen’s support for the proposal is the following passage from his statement of evidence (Exhibit A2 at 7.19):

In addition, given the large geographic area devoted to the Residential (Hills) Zone, it is likely that some areas will not contain characteristics essential to the “unique character” and that other forms of residential development [and thus the requisite land division] can occur without prejudicing Objective 1 of the zone.

35. By this, I think Mr Heynen means that the assessment of the allotment areas should be based more on the realities of the locality and less, in the first instance, by reference to Principles 3 and 5 and the stated goals for the Zone as a whole.
36. The second contention of Mr Heynen is that each of the dwellings proposed in the land use appeal satisfy, to the necessary extent, the relevant provisions for the design and siting of dwellings of the types proposed. In common with Mr Batge, Mr Heynen considered the dwellings to adequately satisfy many Council wide provisions including those dealing with setback distances, building height, access, car parking, materials of construction, colours, privacy, overshadowing and bushfire risk.[2]

The Council’s case

37. Ms Shute submitted that when the sole objective for the Zone is read with the DCS, it is clear that the Plan envisages in the Zone, detached dwellings being constructed on large allotments. The retention of large allotments, in her submission, is the means by which a generally spacious and open environment is created and maintained. Although some forms of medium density are tolerated, Ms Shute said, they are not actively encouraged. In her view, the manner in which future buildings would be disposed on the land would be akin to land uses that are to be found in the list of non-complying development in Principle 8. Finally, Ms Shute said that, at the practical level, the area and frontage for Lot 32 falls unacceptably short of compliance with Principle 3 (in respect of the area) and the predominant character to the locality (in respect of both).
38. Mr Batge gave expert evidence in the case for the Council. The following excerpts from his statement of evidence (Exhibit R2) conveniently summarises his opinions about the land division and the goals for the Zone:

The development of the semi-detached dwellings is close to meeting the minimum site area requirements of the Residential (Hills) Zone. However, the proposed detached dwelling is well below the policy setting. Notwithstanding the presence of the aged persons accommodation facility in the locality it is my opinion that the locality remains spacious and well vegetated. The character has not been so adversely altered by the presence of that development, that the objectives of the zone should not be applied to the subject land. Approval and development of the proposed detached dwelling would in my opinion create a precedent that would encourage others to pursue similar development densities. It would potentially produce a progressive alteration to the character of the Zone that would further justify the development of dwellings at higher densities than those contemplated for the Zone. This would in turn place greater pressure on the road network, water supply (and potentially other infrastructure) an outcome that is specifically sought to be avoided by the Zone provisions. That would not in my opinion, represent an orderly approach to the development of the Zone. (Emphasis added).

39. That part of Mr Batge’s statement emphasised above is intended to highlight the different views held by the planning experts on a central issue in this appeal. That is, whether the elements that make up the existing character bears resemblance to the character expressly sought, by the terms of the DCS, to be retained.
40. Mr Batge also expressed a concern about the consequences to the design of future buildings on the allotments that would stem from their area and dimensions. Again, for convenience, I refer to the following excerpts.

The allotments proposed in this matter would create three allotments of narrow frontage and area that is well below the site area requirement for the Zone. The resulting development on the allotments would in all probability be narrow fronted detached dwellings at a density that is clearly inconsistent with the Desired Character for the Zone and the policy setting contained in Principle 3. Accordingly it is my view that the land division would not be capable of producing the low density, spacious well landscaped residential development in accordance with the Desired Character. In my opinion, the land division should not be approved unless either the requirements for detached dwellings sites are satisfied or an approved development is to take place on the allotments.

Discussion

41. I will first deal with the provisions of the Plan that require compatibility between the manner in which land would be divided and the intended use of each new allotment and more generally the uses desired for the Zone. At first glance there is an apparent conflict between aspects of the proposal to divide the land and the stated objective for the Zone. The zone objective has as its goal, inter alia, development for detached dwellings on large allotments. Since one purpose of the land division is to create two allotments for semi-detached dwellings, the question to be asked is: under what circumstances are dwellings, other than detached dwellings, permissible in the Zone? This question was the subject of submissions using as reference the decision of Commissioner Hodgson in Richards v City of Mitcham [2009] SAERDC 1. That appeal concerned a proposal to divide a parcel of land (in the suburb of Blackwood) into two community titles with the ultimate purpose of establishing two group dwellings sharing common property. Mr Hilditch drew heavily on Commissioner Hodgson’s reasoning in support of the appellant’s case.
42. On the general question of whether other types of dwellings are contemplated in the Zone, Commissioner Hodgson concluded (at para 25) 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 in the Zone”. The question of where and under what circumstances these forms of dwellings might be established was resolved by Commissioner Hodgson by reference to the DCS. He concluded as follows:

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.
...
It follows that the subject proposal, inasmuch as it meets the site area and slope requirements set out in Zone Principle 4, is not heavily vegetated or near a creek or drainage line, and is outside the Zone’s bushfire prone area, is potentially suitable for division for group dwellings. The configuration proposed will result in minimal impact on the established streetscape, existing vegetation, and neighbouring development.
Inasmuch as Group Dwellings are contemplated in parts of the Zone, and having regard to the site area prescribed for such dwellings by Zone Principle 4, it is to be expected that localities with allotments typically at least twice that prescribed minimum site area would be those where such development could occur. Having regard to the other site characteristics earlier referred to, the fact that the locality of the subject land is predominantly characterised by relatively large allotments is not of itself a basis upon which the subject proposal should be rejected.

43. There are aspects of the decision in Richards that resonate in these proceedings. First, the proposed division is intended to enable a form of development to which Principle 5 is directed to be established on two of the three new allotments. Secondly, the land to be divided is flat, is not close to drainage lines or water courses and, arguably, is not densely vegetated. That is to say a land division which involves the creation of allotments for the purposes of accommodating semi-detached dwellings, in broad terms, is not incompatible with the stated intentions for the Zone. Furthermore, Mr Hilditch’s argument that the deficiency in area of Lots 30 and 31 when measured against Principle 5 is inconsequential is not without foundation.
44. Having so concluded, it seems to me that the appeal turns on whether the area and dimensions of Lot 32, intended as it is to accommodate a detached dwelling, satisfies to the necessary extent the relevant provisions. Much of the hearing concerned that aspect of the DCS emphasised in para 20. Here, the DCS proscribes the division of land into allotments substantially smaller than existing allotments because of the risks such a division (and subsequent development) would pose to the Plan’s intention to preserve the essential elements that make up the character of the Zone. I acknowledge on the decision in Richards that land devoid of these characteristics may allow the introduction of some flexibility in the exercise of planning policies. However, it stretches the planning purpose of the DCS beyond its limits to contend, as Mr Hilditch did, that since the land possesses none of the characteristics sought to be preserved, ipso facto, Principle 3 has no work to do in the assessment and, as a consequence, allotments with areas substantially less than that which exist are permissible (irrespective of their intended use). If that interpretation prevailed, provisions such as Objective 1 for the Zone and (land division specific) provisions such as in Council wide Principle 43 would carry very little, if any, weight in the assessment. The former, inter alia, urges detached dwellings to be situated on large allotments. The DCS overall speaks in support of that goal. The latter seeks consistency with, inter alia, the “existing pattern of division in the locality”. It would be a rare case for a statement of desired character to be interpreted in a way that puts it so at odds with the sole Objective for the Zone and other provisions directed specifically to the subject matter under appeal.
45. This is not a situation where the conditions and character of the land and its locality would render fruitless the pursuit of planning controls in favour of the Zone’s objectives. On my observation the predominant character is that of a low density residential development in which small or modest sized dwellings are sited on large allotments. Granted the area of all allotments fail to reach the desired minimum of 1,200m2. Also there are a few that are less than that proposed. Nevertheless there is a predominance of detached dwellings on individual allotments in the eastern sector of the locality. Their sizes, frontages and large rear yards have together resulted in a reasonable spacious living environment. Most allotments have or possess the capacity to create significant areas of high canopied vegetation within their rear and front yards.
46. All of these factors act in support of the overall goals for the Zone as expressed in the DCS and Objective 1. In reaching this view I have taken into account the retirement village and, in particular, its open and landscaped character when observed from Gloucester Avenue.
47. The terms of Principle 43 and the DCS in general make it necessary for this character to be taken into account. All the more so in respect of the latter in light of that aspect of the DCS which urges careful assessment and the imposition of restrictions be undertaken on new development in a bushfire protection area[3] in a way that will ensure the overall character is maintained.

Decision

48. In my planning judgment the land division fails to pay sufficient regard to the existing character of the land and its locality and the sole objective for the Zone. Specifically, the area of Lot 32, being less than one-half of the desired minimum and well below the average area for the allotments that make up the locality’s predominant character, is so deficient as would conflict with the general goal of maintaining large to very large allotments in the Zone, bring into question its capacity once developed to meet the goal of maintaining the existing open and landscaped character and a high open space to built-form ratio, be at odds with the existing pattern of division in the locality ( Principle 43) and, overall, conflict to an unacceptable extent with Objective 1 for the Zone.
49. For all of the above reasons the appeals are dismissed.
50. There will be an order to that effect.
    

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[1] The exceptions include the semi-detached dwellings at 69 Gloucester Avenue and the vacant land at 47 Gloucester Avenue.

[2] At p 37 of Exhibit R1 is the letter dated 11 September 2009 from SA Country Fire Service to the Council assessing the bushfire hazard as medium and advising that it did not object to the proposed dwellings.

[3] Refer Figure Mit(BPA)/9