BLATCHFORD & ANOR v CITY OF VICTOR HARBOR [2011] SAERDC 49 (1 November 2011)

Last Updated: 7 November 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

BLATCHFORD & ANOR v CITY OF VICTOR HARBOR

[2011] SAERDC 49

Judgment of Commissioner Mosel

1 November 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for a "dwelling and granny flat" - Rural Living 4 Zone - consent refused by the Council - true nature of the proposed development considered and determined to be two dwellings - defects and deficiencies in the proposal plans identified - whether the Court should exercise discretion under the provisions of s.39(2) considered and rejected - the nature of the proposed use and the proposed position of the dwellings conflicts with the purpose and intent of the Zone to an unacceptable extent - LMA registered on the title for the land - consistency between its terms and the policy intent for the Zone noted - appeal dismissed - decision of the Council confirmed.

Development Act 1993; Development Regulations 2008, referred to.

Electranet SA v District Council of Grant [2005] SAERDC 101; Jolly v District Council of Yankallila [2006] SASC 53, considered.

BLATCHFORD & ANOR v CITY OF VICTOR HARBOR
[2011] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal concerns a development that is proposed on land described on Certificate of Title Vol 5849 Folio 277 as Lot 26 in Deposited Plan 57286 within the area known as Lower Inman Valley. It has an area of 1.771 ha, a frontage of 106.82m (to Stock Road) and depths that vary between 152.01-225.67m. Its rear boundary is also the northern boundary of a public reserve (lot 45 – “the reserve”) within which is the Inman River.
2. The Schedule of Endorsements on the Certificate of Title includes an agreement under the Development Act 1993 (pursuant to s.57(2)). This is an instrument commonly referred to as a Land Management Agreement (“the LMA”). I will later identify the relevant terms.
3. Mr Jerome Blatchford, one of the registered proprietors of the land[1], applied to the City of Victor Harbor (“the Council”) for development plan consent to construct on it two separate buildings described on DA 453/049/10 as “granny flat and house”. The Council treated the proposal as a Category 3 development. By decision notification dated 30 July 2010[2] the Council advised Mr Blatchford that it had refused consent.
4. This appeal arises from that decision. When the matter came to hearing,
   Mr B Blatchford (the father of Mr J Blatchford) appeared for the appellants.
   Ms Niemann appeared for the Council. In the appellant’s case, evidence was heard from Mr B Blatchford, Mr A Russell, a planner from the Council appearing under subpoena and Mrs A Blatchford. In the case for the Council, Mr Batge a consulting planner gave evidence. His written statement was received as
   Exhibit R3.
5. At the commencement of the hearing I viewed the land and observed several properties in its near vicinity. I also viewed the general locality from an elevated position due south of the land on Swains Crossing Road.

Relevant Features of the Land and its Locality
The Land

6. The land slopes gently in a southerly direction toward the reserve and the Inman River. Within the southern one third of the land is a creek or minor water course leading to the Inman River. Filling has occurred within this part of the land as well as on part of the land near Stock Road. In both cases, the filling would form part of the platform upon which the proposed buildings would be constructed.
7. Also within the southern part of the land is a water body apparently formed by modifications having been made to the creek. Because this is an aspect of the land that is the subject of separate proceedings in the ERD Court[3], neither its presence on the land nor its purported purpose should be taken into account.
8. On that part of the land generally adjacent Stock Road is a building in the nature of a shed. It is an uncompleted structure, constructed in part with recycled materials. Its appearance is marred by the use of these materials and generally poor workmanship.
9. Adjacent to the shed is an area of the land that has been established for the keeping and training of horses. It appears from the evidence of Mr Blatchford and the submissions of the Council that the requisite consent for horse keeping has not yet been sought.
10. Exhibit A2 is a plan purporting to define that part of the land that would be protected from a 1:10 and 1:100 ARI flood event. I say “purported” because there is no expert evidence before the Court to confirm the accuracy of what is effectively a hand-drawn line upon part of a detailed survey plan. One of the proposed buildings would be situated on the aforementioned platform immediately adjacent to 1:100ARI line.

The Locality

11. The land is within the Rural Living 4 Zone (“the Zone”) depicted on Map ViH/15 of the Council’s Development Plan (“the Plan”)[4]. It is situated on the northwest fringe of Victor Harbor.
12. In his statement, Mr Batge defined a locality for the purposes of his assessment[5]. Observations that I made on the view confirms that it is an appropriate area for the purposes of the assessment of the proposal against the relevant provisions of the Plan as are the following opinions expressed by
    Mr Batge about the features within it[6].

...
The locality is characterised by:
- the undulating character of the terrain around the relatively flat land creating the effect of a large natural amphitheatre with high ground to the north, east and south. The terrain to the west in the General Farming Zone is also undulating but not so steeply
- vegetation (much of which appears to comprises [sic] large eucalypts) growing on the high ground to the east and south at varying densities. Substantial lower scale vegetation appears to have been planted by land owners. There is substantially less vegetation on the western side of Stock Road and the landscape therefore has a much more open character
- Stock Road, a well constructed and bituminised thoroughfare
- the Inman River, located along the western edge of the locality. In accordance with the concept shown in FIG RuL (ViH)/1, land at the rear of the subject land is in a 1 in 100 year ARI flood plain would be subject to occasional inundation
- a water course that runs from the north-east, across Stock Road and through the north-western corner of the subject land ...
- the pattern of land division is one of small rural allotments with allotment sizes similar to the subject land ranging 1 to 2.5 ha in area with substantial frontages in the order of 60 to 250m. the majority of these allotments have been developed with dwellings. However there remains on the southern side of Stock Road two allotments in addition to the subject land to be developed with dwellings and one of the northern that contains only a shed
- dwellings are setback substantial distances ranging between 40 and 100m approximately
- the standard and quality of dwellings, outbuildings and general appearance of properties is predominantly of a high standard
- the dwelling located on Lot 23 is known as Victor Harbor Waterhouse Retreat and is available for short term rental
- there are three sheds in the locality that are built closer to the road than the associated dwelling on Lot 103 with a setback distance of approximately 27 to 33m from the Stock Road boundary, the shed on Lot 23 is located approximately 30m from the road boundary.
It is not an area in which large farm sheds for purposes of primary production are found.
In my opinion, the locality possesses a particularly high level of rural residential amenity derived from:
- an attractive landform that is created by an area that is defined around its perimeter by the rising but undulating land form around a relatively flat area that incorporates part of the flood plain of the Inman River
- a predominantly high standard of built form
- significant and attractive stands of vegetation along the alignment of the Inman River, on the high ground to the north and east in particular
- the attractive riverine environment to the rear of the Stock Road allotments
- a generally attractive streetscape along Stock Road with partial views of dwellings in well maintained settings
- low traffic levels within Stock Road which is a cul de sac approximately 1.15 km in length
- the semi-rural character and its connection to the natural environment including the sounds of wildlife typically found in vegetated and riverine areas.

13. Mr Batge’s locality includes an area of open land that is within the adjacent General Farming Zone (“the GFZ”). The view across the GFZ toward and including the land from the aforementioned elevated position on Swains Crossing Road and from an elevated position further north along Stock Road confirms the low density rural character of the locality.

The Development Proposed
The Plans

14. The following plans appearing on Exhibits R1 and R2 comprise the proposed development.

(a) Exhibit R1

(i) Page 9 depicts the ground floor of a dwelling. For convenience I will refer to this building as the “large dwelling”. It purports to be drawn to scale. However, no windows are indicated, no dimensions are shown and, by virtue of a notation on it, there are aspects not drawn to scale. The plans show the ground floor would be made up mainly of two bedrooms, family/pool room, kitchen/lounge and garage/laundry.

(ii) Page 10 depicts, it appears, the upper floor of the large dwelling. In like fashion it purports to be drawn to scale and is not dimensioned. Its intended position in relation to the ground floor is unclear and does not appear to align with supporting walls. This level of the building would mainly comprise a sunroom and store/toilet.

(iii) Pages 12-15 inclusive are scaled elevation plans of the large dwelling but again without dimensions. Windows are depicted but, again, are not dimensioned. On page 12 is a plan that appears to be an isometric view of the dwelling. This plan shows it would be mainly a flat roofed building which would have “rendered walls, sandstone colour, tiled roor [sic], dark red”. This plan and the elevation plans depict a turret-like structure the roof of which extends above the roof of the upper floor. No dimensions are provided.

(iv) Pages 16-19 depicts the plans and elevations of a building the appellant describes as the “granny flat”. It is drawn to a scale but is not dimensioned. It would be a building of a simple rectangular shape and comprise a bedroom, bathroom/toilet, kitchen and dining/living room. The elevations show that it would be a flat or skillion roofed building with “rendered walls in sandstone or neutral colors [sic], colorbond roofing (eucalyptus green)”. For convenience I will from hereon refer to this building as the “small dwelling”.

(b) Exhibit R2

(i) Page 32 is a site plan depicting the disposition of both buildings. The large dwelling would be situated 102m from the Stock Road boundary and 12m from the western boundary. Its orientation on the plan conflicts with that shown on p 9 of Exhibit R1.

(ii) Page 32 also shows the intended position of the small dwelling. It would be 30m from Stock Road and 38m from the western boundary. The intended orientation of this building is unclear. The main dwelling and small dwelling are separated in distance by about 70m.

(iii) Page 42 purports to be the proposed plan for landscaping. I say “purports” because the detail provided makes the extent of planting unclear. The information at page 35 does little if anything to clarify this aspect of the proposal. This plan also appears to indicate an intention to establish a platform for the large dwelling at RL 18.40 AHD.

(iv) Page 41 is a plan depicting the position of a septic tank that will serve both dwellings and an associated reed bed effluent treatment system. Unhelpfully, this plan depicts the orientation of the main dwelling to be different from that depicted on the plan referred to in (b)(i) above.

15. Exhibit A1 was tendered following the directions hearing on 22 September 2011. The information contained therein may be summarised thus:
    • computer generated (three-dimensional) images of the large dwelling viewed from different points on the land, some construction/material detail, and what appears to be gross floor areas and overall building lengths and depths. There are aspects of the design of the upper floor that differ from the plans described in (a)(iii) above
    • a statement from Mr Blatchford about aspects of the dwelling. The most relevant of which is expressed as follows:

... The walls will be white/sand rendered Creepers [sic] and vines will cover sections. The flat roof will be insulated, concrete/red tiled slab construction. The stairwell rises
900 mm above the rest of the small 2nd floor. This is not just to add character but to gather the rising hot air to be released if need be. There is a huge amount of thermal mass,
150 mm reinforced concrete walls, and unlike [the] typical Australian house the considerable insulation, 100 mm styrene foam is correctly placed on the outside. The finish is then a 50 mm render making a very labour intensive 300 mm wall. Not your common “all show, no go house”. Concrete floors over styrene foam containing solar water heated floor (north facing windows are not needed) add to the thermal mass and make a very comfortable, quiet [sic] cheap to run home.

16. The Council assessed that proposed development as a “Two storey detached dwelling and granny flat”. Although no party pursued the point, strictly speaking that is not a proper characterisation. The evidence of Mr Blatchford and
    Mr Batge and the terms of Schedule 1, Development Regulations 2008 make it clear that what is intended to be placed on the land are two dwellings[7]. For the purposes of this assessment it is not necessary to determine whether the proposal might also be two “group dwellings”; which type of residential use is also defined in Schedule 1.

A Dwelling for a Dependent Relative?

17. In evidence Mr Blatchford said that he and Mrs Blatchford intend to live in the small dwelling. Both are in good health and apparently have plans to travel. Mr Blatchford apparently constructed, or partly constructed, the existing shed on the land and I gained the impression that his intention is to be heavily involved in the construction of the dwellings and other aspects of the proposed development.
18. The large dwelling will be occupied by the co-appellants.
19. I acknowledge that Mr Blatchford’s training and employment in the care of the aged and his strong family ties and commitment has been the foundation of an arrangement on the land that would ensure proper care as he and
    Mrs Blatchford age and become less able to live independent lives. However, on any reading of the relevant provisions of the Plan what is proposed is not what is intended in Council Wide Principle 110 under the heading “Dependent Accommodation”. Among other things that principle is directed to “dependent relatives” being accommodated “on the site of an existing dwelling” where “the building is attached to or is contained within the main dwelling”[8].

The LMA

20. As I said earlier the Schedule of Endorsements on Certificate of Title Volume 5849 Folio 277 includes an Agreement (No. 9110956) established under the provisions of s.57(2) of the Development Act 1993.
21. Relevantly, subsection (12) of this provision empowers a planning authority and thus this Court, when assessing an application for development authorisation, to take into account the existence of such an agreement. Among other things the terms of the LMA (Exhibit R2, pp 1-13 inc) sets out the following obligations of the owner:

...
2.1 Building Work
All buildings erected on the Subject Land shall be designed and constructed of materials and finishes which compliment each other and which contribute to the rural character of the locality to the reasonable satisfaction of the Council.
2.2 Building Floor Levels
Any finished floor level in buildings on allotments 1 to 5 and 25 to 30 (inclusive) must be established in hight above the levels (Australian Height Datum) defined in the following table:

Allotment	Minimum FFL (MAHD))
1	16.8
2	16.9
3	17.8
4	19.1
5	20.0
25	19.4
26	18.5
27	17.2
28	16.8
29	16.8
30	17.6

By way of explanation, the parties record their understanding that the heights in the table are approximately 500mm above the one in one hundred year flood level, as calculated by Tonkin Consulting.
2.4 Excavations
Any excavation and/or filling of land for building or any other purpose must be kept to a minimum so as to preserve the natural form of the subject land and to protect native vegetation to the reasonable satisfaction of the Council. Any such excavation and/or filling must not be undertaken where such work may adversely affect the capacity of any water course or its flood-plain to the detriment of adjoining property owners as assessed by a suitably qualified engineer to the reasonable satisfaction of the Council.
...
2.8 Building Standards
2.8.1 No more than one self-contained dwelling may be established or maintained on any allotment comprising the subject land;
...

22. Clauses 3.5 of the LMA places its terms within the context of the planning system insofar as its requirements “are at all times to be construed and additional to the requirements of the Act ...”. Clauses 3.6 and 3.7 provides the powers to waiver the obligations in the following terms:

...
3.6 This Deed may not be varied except by a supplementary deed signed by the Council and the Owner.
3.7 The Council may waive compliance by the Owner with the whole or any part of the obligations on the Owner’s part herein contained provided that no such waiver shall be effective unless expressed in writing and signed by the Council.
...

The Development Plan

23. Having regard to the true nature of the proposed development, the intended siting of the dwellings and the character of the land and its setting and proximity to the Inman River and associated creek, the following provisions for the Zone and those applying to the whole of the Council are the most relevant to the assessment.

Objective 1: Realisation of potential for closer settlement for rural residential and small rural lot pursuits in a manner which retains the overall rural character of the area and minimises interference with adjoining rural land in accordance with the Fig RuL4(ViH)/1.
...
Objective 3: Protection of water resources from degradation and pollution.
Objective 4: The protection of the Inman River catchment area from pollution by establishment of stormwater management systems which during and after construction achieve:
(a) a high standard of stormwater run-off quality;
(b) water quantities leaving the site controlled to an acceptable level;
(c) acceptable water harvesting techniques.
PRINCIPLES OF DEVELOPMENT CONTROL
General
1 Development should be in accordance with Fig RuL4(ViH)/1.
...

3. Buildings and structures, including stables, should be set-back no less than 20.0 metres from any public road, and 5.0 metres from any side or rear boundary.
4. Buildings should be sited unobtrusively and screened with landscaping to ensure that the rural character and amenity of the locality is maintained and enhanced.

...

19. Within any part of the zone:

(a) no buildings, additions to buildings or development should be located or undertaken within a 1-in-100-year return period flood plain:
(b) fences, if required, should be designed and located in such a way as to minimise their impact on the cross sectional volume capacity of the Inman River in the event of a 1-in-100-year return period flood; and
(c) the excavation and/or filling of land should be kept to a minimum so as to preserve the natural form of the land and any native vegetation, and should only be undertaken where the capacity of the watercourse or its flood plain is not adversely affected to the detriment of adjoining property owners.

20. Development should make suitable provision for the safe and efficient disposal of all wastes, including effluent, stormwater and hard rubbish.
21. All development should incorporate a stormwater management plan that:

(a) encourages on-site water harvesting to maintain garden and lawn areas;
(b) provides sufficient land in drainage reserves and floodways for the construction of appropriate structural controls, such as flow retardation basins, and wetlands;
(c) maintains the volume and rate of run-off from newly-developed areas at levels as near as possible to those which existed prior to the development;
(d) takes into consideration the impacts the development will have on existing watercourses and downstream stormwater control facilities; and
(e) includes an engineering design which aims to preserve rather than eliminate natural drainage systems.

22. During construction, measures should be taken to ensure that polluted run-off, particularly with high sediment loads due to bare earth, is retained and treated before leaving the site.
23. Development should not be undertaken if the operation and management of such development will result in:

(a) the pollution of natural watercourses and water catchment areas; or
(b) waterway erosion.

24. Development should ensure the risk of flooding on the site from internally generated stormwater shall be less than that generated by a 100-year ARI event.
25. Development shall not take place unless the disposal of stormwater emanating from the site can be achieved without unacceptable erosion, flooding or environmental risks to downstream watercourses.

...
COUNCIL WIDE PRINCIPLES OF DEVELOPMENT CONTROL
...

9. Development which is likely to be affected adversely by flooding should not take place where:

(a) there is a significant risk of flooding or aggravation of flooding of other land; or
(b) information is available indicating that risk to life or property could result from a 100-year return period flood.

10. Building development should be located and take place with reasonable and effective precautions being taken against the risk of damage from ground instability.

...
RESIDENTIAL DEVELOPMENT
OBJECTIVES
...
Objective 11: 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.
...
Objective 15: A range of dwellings that meets the needs of residents, including accommodation designed and located to meet the specific needs of the aged and people with disabilities.
Objective 16: The creation and maintenance of an attractive living environment.
...
57 Development should:
...
(b) minimise the need for cut and fill;
...

58. Building appearance should not detract from the existing or desired future character of the locality in terms of built form elements such as:

(a) building height;
(b) building mass and proportion;
(c) external materials, patterns, textures, colours and decorative elements;
(d) ground floor height above natural ground level;
(e) roof form and pitch;
(f) facade articulation and detailing and window and door proportions;
(g) verandahs, eaves and parapets; and
(h) driveway crossovers, fence style and alignment.

59. Dwellings adjacent to streets should include doorways or fenestration facing towards the primary frontage.

...

61. The visual bulk of buildings adjacent to street frontages and private open space should be reduced through design techniques such as colour, building materials, detailing and articulation.

...
Energy Conservation and Comfort
...

78. Dwellings should provide adequate thermal comfort for occupants while minimising the need for mechanical heating and cooling by:

(a) providing an internal day living area with a north-facing window, other than for minor additions6;
(b) zoning house layout to enable main living areas to be separately heated and cooled, other than for minor additions;
(c) locating, sizing and shading windows to reduce summer heat load and permit entry of winter sun; and
(d) allowing for cross ventilation to enable cooling breezes to reduce internal temperatures in summer.
...

79. Roof orientation and pitch should facilitate the efficient use of solar collectors and photovoltaic cells.

...
APPEARANCE OF LAND AND BUILDINGS
Objective 75: The amenity of localities not impaired by the appearance of land, buildings, and objects. Untidy commercial sites, poorly maintained holiday houses, and abandoned structures, should not be allowed to mar the landscape in the region.
Objective 76: Compatibility of new buildings with the scenic views of Victor Harbor and with surrounding buildings.
...
PRINCIPLES OF DEVELOPMENT CONTROL

312. Building development should be located and designed in respect of the size, colour, form, siting, architectural style and materials of construction of buildings to harmonise with, the objectives for an area, other buildings of historical significance or heritage value or, in the absence of guidance from these, the predominant character of existing building development.
313. Development should take place in a manner which will not, in respect of its appearance, interfere with the achievement of the objectives for an area or, otherwise, the existing character of scenically or environmentally important areas, including areas which are prominently visible from other land or are frequented by the public.
314. Trees, shrubs and other vegetation should be established as part of development where the environment will thereby be improved.
315. Prior to the commencement of any development, trees, shrubs and other vegetation should be established, or other appropriate measures taken, which would be effective in screening:

(a) future excavation and earthworks (including cutting and filling of natural surfaces, quarrying and stockpiling of excavated material);
(b) new buildings; or
(c) views of any other development which is likely to become unsightly.
...

319. Development should take place in a manner which will minimise alteration to the existing land form.

...

322. The rural character, comprising natural features and man-made activities, should be preserved by careful siting, design and landscaping of new building development and or intensive land uses.

...

324. Buildings or structures should be sited unobtrusively and be of a character and design which will blend naturally with the landscape.

...

24. It would appear that the provisions of the Plan that require dwellings to be connected to a suitably designed effluent disposal system[9] have (subsequent to institution of the appeal) been satisfied by virtue of the correspondence to
    Mr J Blatchford from SA Health, dated 16 May 2011[10].

Assessment

25. Having regard to all that has been put before me I find it necessary to apply the “first principles” of assessment. That is to say I must determine whether there is sufficient particularity in the material before me to decide the merits of the proposed development.
26. In the normal course, the parties submitted to the Court the relevant material that each would rely on in the pursuit of their cases. The material of most relevance was included in the documents tendered as Exhibits R1 and R2. Variously within those exhibits are plans and diagrams prepared by
    Mr Blatchford and accepted by the Council for assessment.
27. Prior to the hearing of the merits of the proposed development, I formed the tentative view that important aspects of it lacked the necessary particularity. It was plain to see that in respect of each dwelling there was an absence of relevant dimensions, the plans were poorly detailed and there were inconsistencies between plans. I first alerted the parties to my preliminary views in a directions hearing on 22 September 2011 and invited the appellants to remedy the defects that were evident at that time.
28. The plans and written information in Exhibit A1 were prepared and tendered by the appellant in response.
29. A proposed development the subject of an assessment to determine whether it should be approved must comply with the requirements set out in s39 of the Development Act. That is to say, it must include sufficient information for a relevant authority and this Court to undertake its assessment against all relevant provisions of the Plan. The onus is on the applicant to provide that information. A development application that fails to satisfy the provisions of s39 is a deficient application and can be rejected without consideration by the relevant authority[11].
30. The details on the plans and correspondence that make up Exhibit A1 do not remedy the deficiencies and defects to which I made reference during the directions hearing and, upon considering the evidence of Mr Batge and
    Mr Blatchford, other defects in the application become apparent during the hearing of its merits. In summary:
    • the absence of properly dimensioned and detailed plans and elevations of both dwellings prevents a proper assessment against several provisions directed toward achieving the desired building appearance and built form elements (Zone Objective 1 and Principle 4 and Council Wide Objectives 11, 16 and 75 and Principles 58, 59, 60, 61, 312, 313, 322 and 324) and those that speak to energy conservation (Council Wide Principles 78 and 79)
    • the absence of all relevant information in respect of the risk of flooding (including the questionable accuracy of the 100 year return flood period line depicted on Exhibit A2) and stormwater management prevents a proper assessment against several provisions directed towards the avoidance of flood risk (Zone Objectives 3 and 4, and Principle 19, and Council Wide Principles 9 and 10), minimising the placement of fill on land (Zone Principle 19) and the appropriate disposal of stormwater (Zone Principles 20-25 inclusive).
31. Arguably, the Court could exercise the discretion provided to the relevant authority under s39(2) and assist an applicant for consent by seeking further information reasonably necessary to assess the proposal and request the applicant to remedy any defect or deficiency in the application or documentation. Were it not for particular features of the proposal that brings it into unacceptable conflict with the underlying intent of the Zone, it might be appropriate to take such a course.
32. The existing character is, as opined by Mr Batge, “one of small rural allotments with allotment sizes similar to that of the subject land ... [the] majority of these ... have been developed with dwellings”[12]. These are features that are consistent with the underlying purpose of the Zone’s intent as expressed in Objective 1 and, in particular, its goal of accommodating residential development while retaining the predominance of rural character and function. Furthermore, within the locality, the siting of a single dwelling and associated buildings generally within one sector of its allotment and within reasonable proximity to and orientation toward Stock Road and, more importantly, a significant distance from the Inman River are features of development that are consistent with Objectives 3 and 4.
33. The proposed development – being for two dwellings – is at odds with the expressed intent. Furthermore, on one reading of Zone Principle 8, it is at odds with the Plan’s intent for the density of dwellings for the purpose of rural living as measured by the minimum size of allotments.
34. Quite correctly, Mr Batge observed that the positioning of the large dwelling well away from Stock Road (when considered in isolation from other policies) is not in conflict with the Plan. However, the intent of the appellants to include another dwelling on it in such a way as to ensure a high degree of independence would, in addition to the conflicts noted above, necessitates the introduction of a substantial amount of fill to raise its floor level as a means of protecting it from flood events. This has the consequence of bringing the proposal into further and unacceptable conflict with the intent of Objectives 3 and 4 and related principles.
35. In saying this, I do not rely on the existence of the LMA, the terms of which can be taken into account pursuant to s 57(12) of the Development Act 1993. The express terms of Clauses 2.4 and 2.8.1 places, respectively, an obligation on successive owners (including the appellants) to establish no more than one self-contained dwelling on the land and, notwithstanding the minimum floor levels for buildings in clause 2.2, to keep to a minimum the excavation on filling of land “so as to preserve the natural form of the ... land”. While I acknowledge, for the reasons set out by the Full Court in Jolly[13], that the terms of a LMA may be of limited use in an assessment, I note that the above terms are entirely consistent with particular aspects of the Plan that underpin the express purpose of the Zone.
36. For these reasons the appeal is dismissed. The decision of the Council to refuse Development Plan Consent is confirmed.
37. There will be an order to that effect.

---

[1] Ms E M De Bruine is recorded on the Certificate of Title as the other registered proprietor.

[2] Refer Exhibit R1, pp 45, 46.

[3] ERD-11-193 City of Victor Harbor v Jerome David Blatchford & Anor.

[4] The relevant version of the plan is dated 7 January 2010.

[5] Exhibit R3, Attachment 1.

[6] Ibid, pp 5, 6.

[7] Schedule 1, Development Regulations 2008 define a dwelling as "... a building or part of a building used as a self-contained residence".

[8] Emphasis added.

[9] Zone Principle 20 is one such provision.

[10] Exhibit R2, pp 36-41 (incl.).

[11] Electranet SA v District Council of Grant [2005] SAERDC 101.

[12] Exhibit R3, p 5, cited in para 4.0.

[13] Jolly v District Council of Yankallila [2006] SASC 53.