HAMILTON-MELHUISH & ANOR v CITY OF MITCHAM [2012] SAERDC 1 (5 January 2012)

Last Updated: 11 January 2012

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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HAMILTON-MELHUISH & ANOR v CITY OF MITCHAM

[2012] SAERDC 1

Judgment of Commissioner Hamnett

5 January 2012

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a decision to refuse consent to a proposal to divide one allotment into two - Residential (Central Plains) Zone - Policy Area 8 - nature of existing pattern of division in the locality - importance of setback from arterial road - proposed allotments found not to accord with the desired character sought for the locality and unsuitable for the development proposed thereon. Decision of Council affirmed. Appeal dismissed.

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

Ian Wood Homes Pty Ltd v City of Mitcham [2012] SAERDC 2; City of Port Adelaide Enfield v Moseley [2008] SASC 88; Kokkotos v City of Mitcham [2000] SAERDC 13; Dal Pra v Corportation of the City of Happy Valley 1995 EDLR 107; City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244; Murrie v City of Mitcham [2011] SAERDC 26, considered.

HAMILTON-MELHUISH & ANOR v CITY OF MITCHAM
[2012] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by J.L. Hamilton-Melhuish and D.L. Melhuish (the Appellants) against the decision of the City of Mitcham (the Council) to refuse consent to a development application (DA 080/234/2011) for consent to create two allotments from an existing allotment at 225 Belair Road, Torrens Park.
2. A view of the subject land and its locality was undertaken prior to the hearing. At the hearing Mr M. O'Callaghan appeared as an advocate for the Appellants and gave evidence in support of their case. Ms F Niemann, of counsel, appeared for the Council. The Court also heard evidence from Mr D Batge, a qualified and experienced planner.
3. At the Directions Hearing, which had preceded the hearing on 20 October 2011, Mr O'Callaghan had indicated that he would be calling evidence from a licensed surveyor. In the event, he called Mr A. Davidson, a property development consultant who, according to his curriculum vitae, received by the Court as part of Exhibit A1, is a survey draftsman with experience in land division and property development. It was confirmed that Mr Davidson had been responsible for preparing and lodging the land division application.
4. This appeal was heard together with a separate appeal against the Council's refusal of an application to construct two semi-detached dwellings (DA 080/9/2011) on the proposed allotments. The Court regarded evidence in one matter as evidence in the other. A separate judgment has been issued in relation to the appeal concerning the dwellings (Ian Wood Homes Pty Ltd v City of Mitcham [2012] SAERDC 2).

Chronology

5. It was clear that the Council had given some detailed consideration to the proposal for two semi-detached dwellings on the subject land before it considered the application to divide the land. The application to construct the dwellings was received by the Council on 5 January 2011. It was refused by the Council's Development Assessment Panel on 6 July 2011. The land division application was lodged by Mr Davidson through the State Government's Electronic Land Division Lodgement Site (EDALA) on 9 February 2011. On 16 August 2011 Mr O'Callaghan, acting on behalf of the Appellants, requested a determination of the land division application, in accord with section 41(2)(b) of the Development Act 1993. Council notified the Appellants of its decision to refuse the land division application by means of a decision notification form dated 26 August 2011. The reasons for refusal given were that:

(1) The proposed development would result in disorderly division of land by creating an irregular shape allotment that is unsuitable for the future development of a dwelling and not in keeping with the existing allotment pattern and desired character of the locality. The proposal is at variance to the following Development Plan provisions:
- Objective 1 and 2 and Principles of Development Control 1 and 2 of the Residential (Central Plains) Zone;
- Council Wide Objective 12 and Principles of Development Control 2, 16, 43, 44 and 48; and
- Metropolitan Adelaide Objectives 1 and 5 and Principle of Development Control 9.

6. In City of Port Adelaide Enfield v Moseley [2008] SASC 88, at para 15, Debelle J stated that:

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.

7. He went on to say, at para 17:

... 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.

8. And further, at para 18:

The fact that Mr Moseley intended to divide the allotment into two has the consequence that it was necessary for him to obtain approval to divide the land before the Council could be required to consider whether it should grant consent to the proposed redevelopment of the two allotments.

9. It was clear in this matter that the land division and the proposal to construct two semi-detached dwellings were seen by the Appellants as closely linked elements of the same development. The Court has stated on a number of occasions that, when considering an application for land division for residential development, its task is to determine whether the subject land is suitable for division into separate residential allotments "in a generic, rather than particular, sense" (Kokkotos v City of Mitcham [2000] SAERDC 13, para 17). That was also the task in this matter. The Court derived some benefit, when considering the land division appeal, from having available to it a detailed set of plans for two semi-detached dwellings on the proposed allotments. This was of assistance in forming an opinion as to whether the division of the land in the manner proposed would result in allotments of a size and configuration suitable for the residential purpose for which they were intended. It remains the case, however, that the application for land division and the application to construct two semi-detached dwellings are separate applications and need to be assessed as such. In the event that the Court finds that the proposed land division fails to meet the provisions of the relevant Development Plan to a sufficient extent to merit consent, the appeal in relation to the two semi-detached dwellings on the proposed allotments must also fail.

The Subject Land

10. The subject land at 225 Belair Road is formally described in Certificate of Title Volume 5841, Folio 852, as Allotment 761 in Filed Plan 19045 in the area known as Torrens Park. The land has an area of 974 square metres. It is roughly triangular in shape with its northern apex formed by the junction of Brook Street and Belair Road. The northern tip is truncated, leaving a short section of boundary 3.84 metres long at this junction. The north-western frontage to Belair Road is 52.6 metres long and the frontage to Brook Street is 36.5 metres long. The southern boundary has a total length of 44.65 metres.
11. The land slopes from a high point at its south-eastern corner to its northern end. Mr Batge calculated the difference in height between its high and low points at 2.7 metres. There is a single storey detached dwelling on the land at present with a floor area of about 160 square metres and a single width garage which is accessed from Brook Street. The setback of the existing dwelling from Belair Road is angled and varies from 4 metres at its closest point to 14.5 metres. The land contains a number of trees and shrubs, including a Jacaranda tree which, at the time of lodgement of both the land division and dwelling applications, was "significant" as this term was then defined in Section 6A of the Development Regulations 2008.

The Locality

12. Mr Batge identified a locality for the purpose of assessing the proposed development. This extended south along both sides of Brook Street as far as Eli Street and north along both sides of Belair Road for about 200 metres. To the south Mr Batge's locality extended to include properties at 227 and 229 Belair Road. The main features of this locality identified by Mr Batge were:
    • Brook Street, a residential street characterised on its eastern side by detached and medium-density dwellings of both single-storey and two-storey form; and on its western side by dwellings which are predominantly single storey and low density.
    • Belair Road, a secondary arterial road carrying an average of 26,100 vehicle movements a day. Belair Road has a lower level of amenity than Brook Street because of its higher volume of traffic. Mr Batge also identified a mix of dwelling ages and styles and a reliance "on the contribution of built form and landscaping within the set-back areas providing the only significant visual enhancement features along the (Belair) road".
    • Mr Batge's statement of evidence contained a helpful analysis of allotment sizes (Exhibit R2, Attachment 3) which demonstrated that there is no consistent pattern of allotment sizes or shapes in the locality. He identified a number of large allotments on the western side of Belair Road of more than a thousand square metres in area, falling to around 700 square metres at the northern end of his locality. There is a large allotment shown as having an area of 2768 square metres across the road from the subject land which appears to contain 5 single-storey dwellings, presumably under a strata or community titling arrangement.
    • Immediately to the south of the subject land on Belair Road are two allotments, each of about 750 square metres in area. The dwellings on these allotments - 227 and 229 Belair Road - are set back further from the road than the existing dwelling on the subject land. Each of these dwellings gains access from Belair Road and has its primary frontage facing Belair Road. Generally, Mr Batge found dwellings fronting Belair Road within his locality to have front setbacks of 8 to 9 metres.
    • On the eastern side of Belair Road, to the north of the subject land, Mr Batge noted allotments ranging in size from 862 square metres to 1647 square metres. On the eastern side of Brook Street, he observed allotments ranging in size from 1247 square metres to as small as 412 square metres, with a group of three small allotments just to the south of the subject land on the opposite side of Brook Street and two small allotments on the north-eastern side of the junction of Brook Street and Eli Street. Mr Batge's analysis of allotment sizes also showed a pair of regularly shaped allotments of 412 square metres and 479 square metres on Eli Street, adjacent to its north-western corner with Brook Street.
13. Mr Batge's evidence indicated that, apart from the two regularly shaped allotments of 412 and 479 square metres referred to above, allotments in this particular area had an average size well in excess of 800 square metres.
14. As part of the view, Mr O'Callaghan also requested the Court to observe a dwelling on the corner of Kays Road and Belair Road. This appeared to be a recently constructed two-storey dwelling on a regular allotment fronting Kays Road. Its side boundary was to Belair Road. The closest part of the building to this side boundary appeared to be the side wall of a garage, set back about a metre from the boundary.
15. I accept generally Mr Batge's description of the locality and its characteristics. It extends rather further to the north than to the south, but this seems appropriate, given the prominence and visibility of the subject land from the north along a straight section of Belair Road. Overall, this is a pleasant locality of fairly high amenity. Along Belair Road traffic noise reduces this amenity somewhat. Dwelling forms and styles are mixed and there is no consistent pattern of allotment sizes or shapes, as Mr Batge's analysis demonstrated. There are some small allotments in the locality as noted above but the majority are substantially larger than those proposed in the development before the Court.

The Proposed Development

16. The proposal is to divide the subject land into two allotments. These were shown on proposal plans contained in the Council's Book of Documents (Exhibit R1) at p 52. Both allotments would gain access from Brook Street. The dimensions of the proposed allotments are set out below.
17. Proposed allotment 2251, with an area of 503 square metres, is intended to occupy the northern portion of the subject land. It is thus roughly triangular in shape with a frontage to Belair Road of 41.7 metres, a frontage to Brook Street of 24.4 metres and a southern boundary 35.29 metres long. It would also incorporate the corner cut-off 3.84 metres long at the junction of Belair Road and Brook Street.
18. Proposed allotment 2252 to the south would have an area of 471 square metres, with a frontage of 10.9 metres to Belair Road, 12.15 metres to Brook Street and a southern boundary with a total length of 44.65 metres. The southern boundary, following the existing boundary of the subject land, comprises a section running more or less east to west, extending from Brook Street, and then a further section running north of west for 12.47 metres to Belair Road. Its form is thus that of an irregular pentagon.

Development Plan Provisions

19. The proposed development needs to be assessed against the provisions of the Development Plan for Mitcham (City) consolidated on 3 February 2011. The subject land is within the Residential (Central Plains) Zone and, more particularly, within Policy Area 8 of that zone. The following provisions of the Development Plan seem to me to be of relevance to the assessment of the land division proposal.

Metropolitan Adelaide
Objective 1: Orderly and economic development.
...
Objective 5: Land in appropriate localities divided into allotments in an orderly and economic manner.
...
Objective 9: Safe, pleasant, convenient and efficient residential zones.
...
Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects.
...
Principles of Development Control
...

9. Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.

...
Council Wide Provisions
...
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.
Objective 13: The location, design and density of residential development providing an efficient and effective use of established and new urban infrastructure and services.
Objective 14: A range of dwellings that meets the needs of residents.
Objective 15: Sufficient increase in the number of dwellings in the council area to maintain the existing population numbers and provide for some marginal increase in overall population.
...
Objective 25: The conservation of significant trees in Metropolitan Adelaide which provide important aesthetic and environmental benefit.
...
Principles of Development Control
...
2 Development should be orderly and economic.
...
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;
(ii) nine metres for semi-detached dwellings or, where such sites have frontage to an arterial road, 12 metres;
...

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.
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.
(b) on lots greater than 450 square metres in area, not less than -
(i) one metre from one side boundary of the development site; and
(ii) three metres from the opposite side boundary; however a garage or open-sided carport may be built to the boundary, provided that, where the site is located within a Bushfire Protection Area shown on Figures Mit(BPA)/1 to 17 (but excepting any excluded area), vehicle access to the rear yard of the dwelling is not restricted.
(c) Where development adjoins a side boundary, it should -
(i) not adjoin more than 12 metres of the length of the boundary;
(ii) not have a wall greater than three metres high located on the boundary; and
(iii) wherever possible, have a separation of at least 2.5 metres from at least one neighbouring dwelling.
(d) single-storey buildings and structures except domestic outbuildings should be set-back a minimum of five metres from rear property boundaries.
...
26
...
(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;
...

32. Development adjacent to or opposite arterial roads or other major transport corridors shown on Map Mit/1 (Overlay 1) should incorporate design techniques that aim to reduce the impact of traffic noise and danger on resident amenity and safety. Techniques may include:

(a) larger than normal set-backs from road or railway frontages;
(b) orientation of buildings to reduce reflection of external noise onto other buildings;
(c) internal layout of rooms arranged to reduce external noise impact on noise sensitive rooms;
(d) use of building materials and construction techniques that ameliorate external noise nuisance; and
(e) the use of external walls, fences, landscaping, mounding in appropriate areas, and similar techniques to assist in noise attenuation; however all such external boundary walls are to be appropriately modulated in design and detailing and varied in set-back to provide visual interest and relief.
...

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.

...

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.
Land Division
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.
46. Land suitable for local open space should be available within reasonable walking distance of each residential allotment.

...

48. The division of land should not create allotments unsuitable for the development proposed thereon.
49. Land should not be divided into allotments in a manner which would prevent the possible satisfactory future division of the land, or any part thereof, depicted on the plan of division.
50. The division of land should not cause an infringement of any provision of the Building Act, or any by-law or regulation made thereunder.
51. Land should not be divided where the development proposed thereon is liable to be detrimentally affected by inundation through drainage or flood waters or where land proposed to be divided for residential development would be in the 100-year return period flood path.
52. Land should not be divided unless provision is made for safe and adequate disposal of stormwater from all proposed allotments.
53. Land should not be divided unless provision is made for a water supply sufficient for domestic purposes to be available to every allotment that is to be used for human habitation.
54. Land should not be divided unless provision is made for the disposal of waste waters from all proposed allotments without risk to health or pollution of a water resource.
55. Land should not be divided where the development proposed thereon could lead to pollution of a public water supply, or any surface or underground water resources, unless meeting levels of pollution authorized under any Act.
56. Land should not be divided if that land, or areas in the vicinity thereof, is, or are, likely to be subject to undue erosion by reason of the development proposed thereon.

...

58. Land should not be divided unless provision is made for safe and convenient legal access from any proposed allotment to the carriageway of an existing or proposed public road.

...

154. Existing substantial landscaping should be retained in conjunction with development wherever practicable.

...

181. Buildings should be set back from roads, watercourses, bores and wells in accordance with Table Mit/7.

182 Where a significant tree:
(a) makes an important contribution to the character or amenity of the local area; or
(b) is indigenous to the local area and its species is listed under the National Parks and Wildlife Act as a rare or endangered native species; or
(c) represents an important habitat for native fauna; or
(d) is part of a wildlife corridor of a remnant area of native vegetation; or
(e) is important to the maintenance of biodiversity in the local environment; or
(f) forms a notable visual element to the landscape of the local area;
development should preserve these attributes.
...
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

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.

...
Residential (Central Plains) Policy Area 8
Desired Character
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

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.
...

The Evidence

20. As indicated earlier, Mr Davidson had prepared the land division. He clearly came to the Court as an advocate for the proposed development rather than as an independent expert. Mr O'Callaghan had represented the Appellants at various stages of the appeal process and his evidence could not be regarded as independent or objective either. He submitted a document (Exhibit A1) which limited itself primarily to an attempt to refute each of the Council's principal reasons for refusal of the proposed land division and the associated dwellings. Neither Mr Davidson nor Mr O'Callaghan could be regarded as an expert on the basis of their qualifications or of the evidence which they provided. Neither attempted a systematic assessment of the proposed developments against all relevant provisions of the Development Plan. Overall, their evidence was of very limited assistance to the Court.
21. The only expert evidence provided at the hearing was the evidence of Mr Batge, therefore. In his written statement of evidence, he identified a number of "generally acceptable" aspects of the proposed division of the land for residential purposes. The subject land was clearly appropriate for residential development, the proposed allotments were capable of being provided with services, satisfactory access was available from Brook Street and there were no apparent issues of drainage or contamination.
22. Mr Batge was also satisfied that land division could occur in an economic manner. It would also be orderly to the extent that it involved the subdivision of an existing allotment in a fully developed area. However, it would not be orderly in other respects since the proposed allotments were inconsistent in Mr Batge's opinion with the pattern of development within the immediate locality and the development would result in an allotment (Allotment 2251) which would be "of an inappropriate shape and size".
23. With an area of 503 square metres, Allotment 2251 would meet the minimum site area requirements of Principle of Development Control 1 for the Residential (Central Plains) Policy Area 8 of 500 square metres for a detached dwelling and 425 square metres for a semi-detached dwelling. Allotment 2252, with an area of 471 square metres, clearly exceeded the minimum requirement for a semi-detached dwelling. However, on Mr Batge's assessment, the proposed allotments were "substantially smaller than other irregular shaped allotments" within the locality and it was his opinion that, despite complying with minimum site areas, the triangular nature of the subject land would produce allotments with "very constrained building envelopes". This would make it difficult for dwellings on the allotments to contribute to the achievement of the Desired Character for the Policy Area and to achieve certain relevant quantitative standards of the Development Plan.

The Desired Character for Policy Area 8

24. The Desired Character statement for Policy Area 8 (set out in full earlier) notes that 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.
...
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.
...

25. The Desired Character statement states that, 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". The Policy Area also contains a number of more modern medium density housing developments, including residential flat units, single-storey home units and semi-detached dwellings. The form and appearance of these is said to vary generally from the prevailing detached dwelling character of the area, but these medium density developments provide "a stock of alternative accommodation to the predominant three and four bedroom dwellings".
26. With regard to future development in the Policy Area, this "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".
27. 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". 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".
28. Mr Batge's assessment of the locality, summarised earlier, was that it was mixed and varied in character. There were some examples of medium density development on small allotments on the eastern side of Brook Street but, within the triangle of land bounded by Belair Road, Brook Street and Eli Street, most allotments were irregular in shape and of more than 800 square metres in area. While the provisions of the Development Plan made it clear that semi-detached dwellings could be contemplated within the zone and the policy area, in part to extend the range and choice of housing options available, the requirement of the Desired Character statement was that new residential development still needed to occur on site areas sufficiently large to allow for an adequate provision of unbuilt-upon land with each dwelling, thereby respecting the "private open space and low density qualities of the area".
29. Mr Batge's assessment was that, while the proposed allotments met the minimum site area requirements for dwellings, the triangular nature of the subject land meant that dwellings would need to be sited on the allotments in a way which would be inconsistent with the pattern of development in the locality and at odds with important provisions of the Development Plan relating to road setbacks and the provision of private open space.
30. Mr Batge's evidence made it clear that his conclusions about the ability of the proposed allotments to accommodate dwellings were based, to a considerable extent, on his assessment of the proposed semi-detached dwellings which were the subject of the appeal heard together with the land division appeal. He placed particular emphasis in his assessment on the difficulty of providing an adequate setback from Belair Road. This issue is considered below.

Road Setbacks

31. Council Wide Principle of Development Control 16(d) requires the site of a dwelling to have an area and dimensions that result in "adequate building set-backs, landscaping and space around buildings so as to enhance the locality and streetscape". Mr Batge observed that the dwellings proposed in the related appeal would have their primary frontage to Brook Street and could be satisfactorily set back from that street with no adverse impacts on the streetscape.
32. Council Wide Principle of Development Control 19 requires a minimum 5 metre setback from a rear boundary. Table Mit/7 states that a single-storey building on a corner allotment should be set back 3 metres from a secondary frontage. Given the truncated triangular shape of the proposed northern allotment (Allotment 2251), Mr Batge submitted that this was not a conventional corner allotment and that there was some scope for debate about which was its side and which was its rear boundary. There was no doubt, however, that the allotment adjoined Belair Road, a secondary arterial road shown on Map Mit/1 (Overlay 1) with over 20,000 vehicle movements a day. The traffic noise from Belair Road could impact adversely on a dwelling which was not set back a sufficient distance from this road. On Mr Batge's reading of Table Mit/7, a minimum setback of 10 metres was required from an arterial road boundary. This was consistent, also, with Council Wide Principle 32 which, in addressing "Development Adjoining Arterial Roads and Transport Corridors", suggests the use of a number of design techniques to reduce the impact of traffic noise and danger on resident amenity and safety, including larger than normal set-backs from road frontages.
33. Mr Batge observed that the dwelling proposed on allotment 2251 would be set back only 3 metres from the Belair Road boundary and about 9 metres from the road carriageway. This dwelling would thus extend for some 20 metres parallel to its Belair Road boundary. As a consequence, two bedrooms and the main living area of the dwelling would be situated only three metres from the arterial road boundary. While noise to bedrooms might be reduced by, for example, the construction of an acoustic fence of an appropriate height, this could raise issues of visual amenity from Belair Road and might overshadow the windows of bedrooms 2 and 3 of the dwelling proposed on allotment 2251. Mr Batge acknowledged that there would be a height difference of some 2 metres between the floor level of the proposed dwellings on the subject land and the level of the road but this would not lead, from his experience, to any meaningful reduction in the traffic noise likely to be experienced in a dwelling with living and sleeping areas set back only 3 metres from an arterial road boundary.
34. Mr Batge also expressed concern that the limited set back from Belair Road of the dwelling on allotment 2251 would reduce the scope for landscaping which could assist in maintaining the existing streetscape character. He expressed the view that Belair Road "lacks enhancing features within the road reserve itself and relies on the built form and landscaping on private land to provide the more positive streetscape features". While the significant Jacaranda tree on the southern allotment was to be retained, Mr Batge anticipated that other existing vegetation along the Belair Road frontage would be removed and would be difficult to replace within the setback space available. The proposed dwellings, and particularly the dwelling on proposed allotment 2251, were likely to be much more visible to users of Belair Road approaching the land from the north than was the case with the existing dwelling on the land. This would be a consequence of the removal of vegetation and also of the much longer frontage to Belair Road of the proposed dwelling on allotment 2251.
35. Mr O'Callaghan's submission was that it was appropriate to treat Belair Road as the secondary frontage of allotment 2251 and to regard this as a corner allotment which, on his reading of Table Mit/7, would require only a 3 metre set back. I prefer Mr Batge's assessment. Given the triangular nature of allotment 2251, there is some scope for debate about whether it can reasonably be regarded as a corner allotment, which are the side and rear boundaries and which is the secondary frontage. However, the boundary to Belair Road is certainly an arterial road boundary and there are sound planning reasons for setting residential development further back from an arterial road than from a quieter residential street with lower traffic volumes.
36. Table Mit/7 of the Mitcham (City) Development Plan is a somewhat confusing table to read. On p 261 of the Development Plan, under the heading "Setbacks - Residential Development", it states minimum distances that residential buildings and structures should be set back from road boundaries. The setback from an arterial road is set out clearly and in bold text as 10 metres. However, the table also includes, immediately below this bold text, some potentially contradictory provisions for setbacks in relation to established streetscapes. The subject land could be regarded as forming part of an established streetscape in which the predominant setback in the immediate locality would be the benchmark. Council Wide Principle of Development Control 18 (set out earlier in full) provides a number of reasons for requiring buildings and structures to be set back from the road. These include (c) reinforcing the desired character of the locality by complementing the set-back of adjacent dwellings; and (e) reducing the nuisance of traffic noise for occupants of dwellings.
37. In the course of the hearing Mr O'Callaghan suggested that the issue of the arterial road setback from Belair Road was one of the principal issues of disagreement between the parties. While his preference was to regard a 3 metre setback as complying with the provision of Table Mit/7 relating to the secondary frontage of a corner allotment, an alternative was to use the predominant setback in the locality as the benchmark. In his opinion, this was appreciably less than 10 metres. He placed some weight on the existence of the recently constructed dwelling on the corner of Kays Road and Belair Road to support his argument that a lesser setback from Belair Road was appropriate.
38. Mr Batge conceded that there were some existing dwellings fronting Belair Road with a road setback of less than 10 metres. The age of these suggested that they may have been approved under an earlier planning regime, but they existed and formed part of the locality. However, it was his opinion, as an experienced professional planner, that the task was not simply to apply the minimum quantitative standards set out in Table Mit/7 but to consider also the planning purposes for which setbacks were established. Council Wide Principle of Development Control 18 provides guidance here and so does Principle 32 which addresses the specific question of development adjoining arterial roads and transport corridors. This principle requires that development adjacent to arterial roads should incorporate design techniques that aim to reduce the impact of traffic noise and danger on resident amenity and safety. In Mr Batge's planning judgment, the setback of 3 metres, proposed for a dwelling on allotment 2251, fell considerably short of the appropriate setback on an arterial road.
39. With regard to the existence of the dwelling fronting Kays Road, referred to by Mr O'Callaghan and observed on the view, as well as other examples of buildings along Belair Road which are closer to the road boundary than 10 metres, I agree with Mr Batge's opinion that not much weight should be placed on these. The dwelling on Kays Road is some way south of the subject land and does not form part, in my opinion, of the locality relevant to the assessment of the proposed development. In her closing submission, Ms Niemann also reminded the Court of the well-known principle expressed in Dal Pra v Corporation of the City of Happy Valley 1995 EDLR 107 at p 1 that:

... the existence of undesirable precedents cannot be called in support of new proposals; each application falls to be determined on its own merits and in the context of the planning policies applicable at the time that application is made.

40. It is generally understood that the Development Plan is not a legal statute with mandatory provisions and needs to be approached as a practical guide for practical application. The requirement that residential development should be set back 10 metres from an arterial road boundary is simply one quantitative provision in the Development Plan which it may not always be appropriate to apply when regard is had to all other provisions and circumstances relevant to a particular development proposal. However, I agree with Mr Batge that the presence of Belair Road, an arterial road carrying a significant volume of traffic, is an important feature of this locality and that there are sound planning reasons for ensuring that dwellings are set back a sufficient distance from the boundary of this arterial road. I agree with Mr Batge that a set back of only 3 metres is clearly insufficient in these circumstances. To seek to justify such a set-back, as Mr O'Callaghan did, primarily by reference to the provision of Table Mit/7 relating to the secondary frontage of corner allotments, is an unduly narrow and inappropriate reading of the Development Plan. As Debelle J observed in City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244 (referred to by Ms Niemann in her closing submissions) at para 13:

Prescribed minimum standards are not a statement of desired standards. They are no more than minimum standards ... Compliance with minimum standards rarely leads to a grant of development consent. Regard must also be had to the qualitative provisions in the Plan when deciding whether it is proper planning to grant development consent.

Private Open Space

41. A similar consideration of the difference between minimum standards and desirable qualitative standards arose in Mr Batge's assessment of the private open space provided for the two semi-detached dwellings in the related appeal. Council wide Principle of Development Control 17(e) requires an area of private open space not less than 20 per cent of the total site area of a dwelling. 17(b) requires that the private open space is able to contain a rectangular area measuring at least 8 metres by 5 metres for dwelling sites of 450 square metres; and 17(a) seeks direct ground floor access from the living areas of the dwelling to an area of private open space. Mr Batge acknowledged that the 20 per cent minimum open space requirement was met (or "virtually met"). He calculated that the dwelling on allotment 2252 had an area of private open space of 25.8 per cent of the total site area while the dwelling on allotment 2251 had 19.9 per cent of its area available as private open space. However, neither was capable of accommodating a rectangular area of 5 metres by 8 metres; the proposed private open space included al fresco areas adjacent to the arterial road boundary; and, in the case of the dwelling on allotment 2251, some spaces were without direct access to living areas.
42. Ms Niemann referred to the judgment in Murrie v City of Mitcham [2011] SAERDC 26, a recent matter also concerned with a land division in the Residential (Central Plains) Zone and noted that, in that case, the Court had placed some weight on those provisions of the Development Plan which seek "the avoidance of poorly proportioned or substantially unusable space being created in dwelling sites". It was her submission that a similar approach was appropriate in this matter. I concur with this and with Mr Batge's assessment in relation to the disposition of private open space in relation to the proposed dwellings.

The Relevance of the Proposed Semi-Detached Dwellings to the Assessment of the Land Division Proposal

43. Mr Batge acknowledged that, for the purposes of assessing the land division proposal, it was not necessary to find that the allotments were suited to the particular semi-detached dwellings proposed but simply to two dwellings in a generic sense. However, it was his opinion that there were few alternative layouts possible to the proposed dwellings on the proposed allotments. In the words of his statement of evidence:

... it is my view that the proposed dwelling layout represents a well thought out design for two dwellings on the land taking into account the constraints imposed by its shape and road frontages. I see no obvious design alterations that could be made that would fundamentally alter the manner in which dwellings could be developed on the land that would better satisfy the relevant provisions of the Plan. Therefore, in my opinion, it is not simply a case of an inappropriate or inadequate design attempt, but, rather, the plans demonstrate the inherent unsuitability of the proposed land division given the context of the subject land.

44. The proposed dwelling on allotment 2252 is sited parallel to its southern boundary, while the dwelling on allotment 2251 has its main axis parallel to the Belair Road frontage. The former exceeds the maximum site coverage requirement expressed in Council Wide Principle of Development Control 26(c)(i) of 40 per cent, having a coverage of 48 per cent. In Mr Batge's opinion there are no obvious alternative ways of siting dwellings on these two allotments and any dwelling on allotment 2251 would be unlikely to achieve a satisfactory setback from Belair Road, with the consequences that he had identified for amenity, landscaping and usable private open space. I agree with Mr Batge's opinions in these respects.
45. Council Wide Principle of Development Control 43(a) requires that 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 the Development Plan. Principle 43(b) requires that 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. For the reasons summarised above, Mr Batge's view was that the proposed allotments did not meet the requirements of Principle 43 or of other provisions of the Development Plan relevant to land division for residential purposes. The proposed allotments would not be regular in shape and, while there were other irregularly-shaped allotments in the immediate locality, these were typically of 800 square metres or more in area, enabling them to meet the quantitative and qualitative private open space requirements of the Development Plan satisfactorily, thus preserving the low density qualities of the area and meeting other elements of desired character for the Policy Area. The dimensions of the proposed allotments, by contrast, and particularly of allotment 2251, which narrows significantly at its northern end, would inevitably lead to "very constrained building envelopes". I agree with Mr Batge's opinions on these matters and with his conclusion that the appeal should be dismissed.

Conclusion

46. I have given careful consideration to all relevant provisions of the Development Plan, to the evidence and submissions that I heard, to the conditions in the locality that I observed on the view and to my own planning assessment of the "pros and cons" of the proposed land division. Having done so, I find that the proposed allotments are not appropriate to the intended use of the land. I agree with the evidence and conclusions of Mr Batge, the only expert witness to give evidence in this matter, that the proposed land division does not merit consent.

Decision

47. The appeal is dismissed. There will be an order accordingly.