Adelaide Hills Council v Gibson - [2006] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
ADELAIDE HILLS COUNCIL v GIBSON
[2006] SASC 181
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
23 June 2006
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - INTERPRETATION AND CONSTRUCTION - GENERALLY
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT
Appeal against decision of Judge of the Land and Valuation Division of the Supreme Court - development application to divide land into two equal sized residential allotments - further application to erect a single dwelling on each allotment - both applications refused by Council - respondent appealed to Environment, Resources and Development Court - Commissioner upheld Council's decisions - respondent appealed to a single Judge of the Supreme Court - decision reversed - development approval granted - whether Judge erred in proper interpretation and application of Development Plan - whether proposal was for "low density" residential development - whether development was in keeping with "village character" of township - discussion of relevant locality - role of precedent in planning decisions generally - whether appellate court should interfere with decision of an expert tribunal - appeal allowed - decision of Council restored.
Development Act (SA) 1993 ; Adelaide Hills Council Development Plan 2005 , referred to.
Nadebaum v City of Mitcham [1995] EDLR 587; City of Charles Sturt v Hatch [1999] EDLR 485; Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165, applied.
City of Charles Sturt v Hatch [1999] SASC 523, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Low density residential development", "Village character"

ADELAIDE HILLS COUNCIL v GIBSON
[2006] SASC 181
Full Court: Sulan, Anderson & Layton JJ

SULAN J: I agree with the reasons of Anderson J. I would allow the appeal and order that the decision of the Council to refuse the applications be restored.
ANDERSON J:
Background
The appellant in this matter, Adelaide Hills Council (“the Council”), appeals from a decision of a Judge of this Court who allowed an appeal from a Commissioner of the Environment, Resources & Development Court of South Australia (“the ERD Court”) relating to a proposed development at Oakbank.
The land which is the subject of the appeal is situated at 13 Elizabeth Street, Oakbank, and is vacant land except for one shed which is erected on the land. The proposals before the Council for the development were two-fold. An application was made under the Development Act (SA) 1993 seeking provisional development plan and land division consent for the creation of two allotments on the existing land. That was called proposal ‘A’. At the same time there was also an application for a provisional development plan consent for two detached dwellings proposed to be erected on the allotments if the first application was granted. That was called proposal ‘B’.
The subject land is within a short distance of the main street of Oakbank. It has a frontage to Elizabeth Street of 26.82 m and a depth of 32 m with an overall site area of 858 sqm.
The proposal for the land division involved an application to divide the existing land into two allotments both with a frontage to Elizabeth Street. The frontages of each of the proposed new allotments would be 13.41 m and the site area of each proposed new allotment would then become 429 sqm.
In relation to the dwellings proposed, the application requested approval of two, single-storey detached dwellings, each with a single-vehicle carport.
There was evidence before the Commissioner in the ERD Court from two expert planners, as to the relevant locality for both the land division and the proposal for the dwellings. The Commissioner held that the locality for the land division was somewhat broader than the relevant locality for the proposal to erect the dwellings.
The findings of the Commissioner relating to the relevant locality are set out in his reasons at [14] and [15] respectively:
I find that the central areas of Oakbank, north and south of the main street and from development fronting/abutting John Street to the south-west through to Oakwood Road and Smith Street to the north-east, including both sides of the central Elizabeth Street, as well as along the main street a little further to the south-west and with Pike Street being an appropriate divider between other land uses, comprises the locality for the purpose of proposal (A). It more closely approximates the area delineated by Mr Barnes but extends further south-east across the main street.
In terms of proposal (B) and its direct visual setting and potential impacts, a more contained locality is appropriate, generally extending from development on the corners of the main street and Elizabeth Street to the south; to John Street in the west to Oakwood Road to the east and north-west along Elizabeth Street for approximately 100 metres.
The Commissioner then went on to say at [16] - [19]:
Land use in both localities is predominantly residential (see Exhibit A4), as well as a few vacant parcels, and with a small range of non-residential uses including shops, offices, consulting rooms, commercial, industrial, kindergarten and community hall uses all generally along the main street. That road is a secondary arterial road in the Development Plan, dividing the town approximately in half, though perhaps now skewed with the weight of recent development on the opposite or southern side of it.
Dwelling density, type, style and age within locality (A) varies considerably with a more mixed character, whilst within locality (B) it is more consistent. In (A), detached dwellings predominate with perhaps a few semi-detached, row or group dwellings towards the southern end of Elizabeth and John Streets. In (B), there are only detached dwellings. In (A), there is a wider mix of ages and styles, more recent and modern infill or redeveloped dwellings whilst in (B), there are approximately 14 dwellings that are relatively old (pre-World War II) and approximately 6 dwellings of more recent origins.
Within locality (A), dwelling density (site area per dwelling) and frontages are also more varied from 300 square metres (south-eastern end of Elizabeth Street correctly shown on the locality plan in Exhibit R3, but erroneously depicted on Exhibit A3 and A4 and base plans for both locality plans in A1), and 10 metre frontages; to a few 400-600 metre allotments with 14-18 metre frontages including opposite the subject land to the north-east, further north on the opposite side of Elizabeth Street and a pair on the eastern side of John Street and Pike Street, but with a majority in the 800‑1200 square metre range and with 15-30 metre frontages.
Within locality (B), most allotments are in the 800-1000 square metre range, and with 15-30 metre frontages, with only two allotments opposite to the east (Exhibit A2) of lesser areas, namely 472 and 520 square metres and lesser frontages of 14.74 and 16.24 metres; and with two allotments of similar area and frontage a little further to the north-east on the opposite side of Elizabeth Street.
As can be seen, the findings of the Commissioner relating to the relevant localities for both proposals A and B are very specific and based upon his interpretation of the evidence and his own experience assisted by his inspection of the area which formed part of the hearing.
The Relevant Provisions of the Development Plan
The relevant provisions of the development plan are set out in the reasons of the learned Judge appealed from at [21] to [29] of his reasons. His Honour says:
With that description of the township in mind, it is necessary to refer to the relevant objectives and principles so far as they affect these applications. The objectives for the Oakbank Village Policy Area are:
Objective 1:      The location of retail, commercial and community facilities along the Main Street; the remainder of the area developed for low density residential use, with the possible exception of some industrial development located near the Railway Station.
Objective 2:      Preservation of the village character of the main street and other streets.
Principles 5 and 6 of the Principles of Development Control for the policy area provide:
5.The siting and design of any new building, or any alterations to existing buildings, should be in keeping with the existing village character.
6.Buildings should be set-back in a manner, which is compatible with the existing streetscape.
The relevant objectives of the Country Township (Balhannah and Oakbank) Zone are as follows:
Objective 1:      Retention of the separate identity of each of the townships by the retention and enhancement of the rural separation between them.
Objective 2:      Provision for some low-density residential expansion in both townships.
…
Objective 5:      Retention of the village character of Oakbank with the Main Street area continuing to provide retail, commercial and community functions.
Objective 6:      Provision for some rural residential development at the western end of Oakbank.
The rural residential development referred to in Objective 6 has been given effect by the development of the Oakbank West Policy Zone.
Objective 1 suggests, as do the respective plans contained in the Development Plan, a firm definition of the township boundaries and the preservation of open rural land between and around them. This is but a manifestation of a number of council wide objectives and principles. Council Wide Objective 4 relating to the form of development provides for the “retention of the country town character and protection of the surrounding watersheds and primary production land from urban development”. Principle 20 provides that new housing and other urban development should “be limited to infilling of existing built up areas and compact extensions within defined boundaries”.
Council Wide Objective 30 relating to residential development provides:
Objective 30:    Development of compact extensions to existing built-up areas.
The explanation which follows provides:
This objective may be achieved through selective development of infill housing, redevelopment and refurbishment of existing housing, and use of vacant and underutilised land with the aim of reducing the social, environmental and economic costs of urban development, and maximizing use of the community investment in facilities and services in existing housing areas. While a compact form of development is generally desirable, recognition must be given to areas of particular character or amenity, or to specific constraint, such as environmental or historical value, water catchment areas and areas of bushfire hazard.
Council Wide Objectives 70 and 71 relating to country townships, together with the explanatory note between those two objectives provides as follows:
Objective 70:    Development of an urban character outside the metropolitan urban area contained in Country Townships.
There are several small townships within the rural areas where a limited expansion is likely to occur. If the boundaries of development are defined in relation to the economic provision of services, this will ensure that each town develops in an orderly and economic manner and will assist in maintaining the country town character.
Objective 71:    Development of Country Townships contained within defined boundaries.
Council Wide Principle 184 provides:
Development of Country Townships should be contained within defined boundaries.
The Decision by the Council
The Council refused both applications. The reasons given by the Council for refusal of each application were as follows:
(A)1. The proposed land division does not comply with Objective 1 of the Oakbank Village Policy Area within the Country Township (Balhannah and Oakbank) Zone which calls for “... low density residential use ...” away from the Main Street. The proposed allotments of 429 square metres are not considered to be low density.
2.The proposed land division does not comply with Council Wide Principle of Development Control 44 which requires that land division within country townships should be greater than 1,000 square metres and have a minimum road frontage of 25 metres.
(B)1. The proposed development does not comply with Objectives 1 and 2 and Principle 5 of the Oakbank Village Policy Area as it is not a low-density residential use and will adversely affect the village character of the area.
2.The proposed development does not comply with Council-wide Objective 4 and Principle 77 as it will adversely affect the township character of Oakbank.
The Council decided that in relation to the first application, the allotments were not low-density and secondly that the proposal did not comply with the Council Wide Principle of Development Control 44 both as to the total area and the minimum road frontage. In relation to the second application, to approve the proposed dwellings, the Council decided that the proposal would adversely affect both the village character of the area and the township character of Oakbank.
The Decision of the ERD Court
The Commissioner directed himself as to the requirements of the Development Plan and concluded that there were two significant matters in relation to the appeal which he heard from the Council’s decision. The first was whether the proposal was a low-density residential development, and the second was whether the development was conducive to the retention and preservation of, and in keeping with, the existing village character of Oakbank.
The Commissioner referred to low-density residential development in the context of the Country Township (Balhannah and Oakbank) Zone Objective 2 and Oakbank Village Policy Area Objective 1 which are set out earlier in paragraph 11.
As the Commissioner pointed out in his reasons, there are no matters of assistance within the zone or policy area provisions as to the meaning of “low-density residential use”. He referred however to the Council Wide Land Division Principle 44(a) in relation to townships generally within the Council area. That principle specified 1,000 sqm site areas with 25 m frontages, but allowed for smaller allotments where those smaller allotments were to be connected to a sewer.
The Commissioner said at [29]:
There is no direct references or assistance within the Zone or Policy Area provisions as to the meaning of “low density residential use” or “expansion”. Council Wide Land Division Principle 44(a), with general application to the numerous country townships in the Council area, assists to some degree. It specifies 1000 square metre site areas and 25 metre frontages but allows for “smaller allotments” exceptions where each allotment is to be connected to sewer (applying in this case) and “if the character of the township is not adversely affected”. I take this reference to “township” to mean the whole of the defined township within the Country Township zoning boundaries. The degree to which smaller allotments might be acceptable is moot.
The Relevant Locality
The Commissioner examined the locality specifically having regard to smaller recently created allotments within the locality. He said at [31] of his reasons:
Turning to the locality (A) context in Oakbank, there are a few, obviously more recently created allotments in the 450‑500 square metre range (such as in Exhibit A2); and one group of three allotments of 300 square metres each at the south-eastern end of Elizabeth Street, south of the main street. Frontages for these range from 10, 12 and up to 15 metres. However, the significant majority and the traditional allotment size are double or more those areas (ie 900-1100 square metres). Hence the question must be asked, would the proposed new allotments (and dwellings thereon) create density (and character) variance that departs significantly from the balance of the low-density development in the Policy Area and the Oakbank township as a whole? In considering this question, we are to be reminded that dwelling density (site area per dwelling) is only one aspect or a perception of what might be regarded as low-density development. So too, must be a consideration of frontage width and set back of dwellings to front boundaries as well as side boundary spacing between them, more so than depth which is a less readily perceived characteristic from the public (street) realm. – my underlining.
The Commissioner then goes on to consider the evidence of both the planners and notes the evidence of Mr Burns, the planner for the respondent, who said he would classify densities of less than 450 sqm as going beyond low-density and into an area of medium-density. The other planner, Mr Barnes, effectively shared that view.
Significantly, in my view, the Commissioner then said at [33]:
The proposal creating not one but two allotments of 429 square metres are both below these rules of thumb and are either not to be regarded as low density residential development or only very marginally so. Of course this is not the only consideration in these matters though it is one of the central important issues. In isolation, one or two smaller residential allotments than either currently exist in the town or compared to the predominant pattern of allotment areas/frontages, may not change or significantly change the perception of low-density character. However, if grouped and potentially cumulatively and progressively, that is likely to change such perception. In the absence of a clear policy direction in that regard, I am reluctant to ratify a form and density of development that may commence in train a likely course of significantly more of the large allotments in the 900-1100 square metre range being split into two smaller ones. (My underlining)
The Commissioner then went on to deal with the village character and referred to the Country Township Zone Objective 5 and Oakbank Village Policy Objective 2 and principle 5 as being relevant. They respectively state as follows:
Objective 5Retention of the village character of Oakbank with the Main Street area continuing to provide retail, commercial and community functions.
Objective 2Preservation of the village character of the main street and other streets.
Principle 5The siting and design of any new building, or any alterations to existing buildings, should be in keeping with the existing village character.
The Commissioner then says in relation to any change in character at [37]:
Whilst an increase of one dwelling and two allotments at 429 square metres and frontages of 13.41 metres may not be a perceptible change to character, particularly in Elizabeth Street, in the light of two “pairs” of allotments with smaller areas and frontages (and smaller, more closely spaced dwellings thereon) compared to the majority, and given the siting of the adjoining dwelling to the south-east on Elizabeth Street, nevertheless cumulatively and if established more generally in Elizabeth Street or other central streets, it would do so.
I consider that this statement by the Commissioner is indicative of the way in which he approached the matter, particularly having regard to what had already occurred in Elizabeth Street.

As a result of those considerations, the Commissioner then summarised his conclusions. He said that he considered the proposals finely balanced in terms of the issue of low-density. He said at [39]:
I consider that the proposals for two allotments (429 square metres and 13.4 metre frontages) and two detached dwellings, where only one presently exists or can be built, are finely balanced in terms of the issues of low density residential development intended for the Country Township Zone and Oakbank Village Policy Area in general, and the desire expressed in the Plan, to preserve, retain and not detrimentally affect the existing village character (and the elements remaining and making up such character). On all other aspects and against all other provisions and guidelines in the Plan, the proposals are acceptable. (my underlining)
The Commissioner then made findings which are set out at [40] as follows:
I find that the proposals are either not, or only, marginally, low density residential development and exhibit some variance to the Plan guidelines in this regard. Of themselves, they would have only a minor and a limited effect on the existing village character of Oakbank. However, I am unable to ignore or put aside, in the circumstances of these cases, the prospects of more, perhaps many more of the existing larger square allotments in the localities (A) and (B), being split into two (with resultant site areas of 400-500 square metres), or pressure coming to bear on the owners of the remaining older dwellings (though not heritage listed and demolition protected), to demolish and replace them with two allotments and two new dwellings, which a favourable decision by the Court to these current applications would surely suggest or be used in support thereof. Whilst rarely decisive or relied upon and having regard to both Nadebaum v City of Mitcham [1995] EDLR 587 and City of Charles Sturt v Hatch [1999] EDLR 485, on the issue, this is an occasion where such aspect assumes a greater importance.
Finally, the Commissioner decides at [44] as follows:
On balance, and considering all relevant factors and circumstances, I find that the proposals are sufficiently at variance with the Development Plan as a whole, and particularly Council Wide Objectives 4 and 94 and Principle of Development Control 44(a); Country Township (Balhannah and Oakbank) Zone Objectives 2 and 5; and Oakbank Village Policy Area Objectives 1 and 2; to warrant their refusal.
The Appeal to the Supreme Court
In the Land and Valuation Division of this Court, the learned Judge reviewed the whole of the Development Plan in relation to the Oakbank Township, and in particular the relevant provisions as set out earlier.
In relation to the Commissioner’s views, the Judge said at [41]:
While his conclusion was expressed in the form of the proposals being at variance with certain objectives and principles of the Development Plan, it is clear that the Commissioner was concerned not so much with the effect of these proposals in themselves, but with the “precedent” which they would create and, the cumulative effect of similar future subdivisions, if they occurred, that would be contrary to the relevant provisions of the Development Plan.
Whilst his Honour said it was clear that the Commissioner was more concerned with the precedent effect, which the proposals would create, and the cumulative effect of similar future subdivisions, I do not consider that it is clear that they were the predominant factors, which influenced the Commissioner when he reached his conclusions.
It is correct that the Commissioner, after making the findings as earlier set out at paragraph [40] did go on and discuss the question of precedent. He referred to the decisions in both Nadebaum v City of Mitcham [1995] EDLR 587 and City of Charles Sturt v Hatch [1999] EDLR 45 and decided that this was such a case where the precedent aspect was of significance.
The question of precedent was considered some time ago by Wells J in State Planning Authority v Tanczos (1979) 20 SASR 210 where his Honour stated at pages 222 and 223:
It would seem to me to have been imperative for the Board to have weighed the likely outcome, in the Brenda Park area at least, of granting the three applications before it. In my opinion, the probabilities were – or, at least, it may well be thought that the probabilities were – well worthy of consideration by the Board, that the granting of consent in any one of the three cases before it, are fortiori, the granting of all three consents, will be likely to encourage others in Brenda Park and elsewhere to pursue similar applications; that further consents would be likely to be granted; and that with the grant of every consent the difficulty of refusing subsequent applications would mount. If the distinct possibility that a spate of similar applications would follow the grant of the instant applications was realised, the Board would have thereby created the danger that Brenda Park would, as part of the flood plain, have been irretrievably lost to the planners.
In Nadebaum Judge Bowering said at p 591:
Whilst it’s generally accepted that each case must be considered on its merits, there are, I think certain circumstances in which either a planning authority, or this Court, when faced with an application for a development which, if taken alone, may be of little consequence, may appropriately consider the planning or other ramifications which may flow if uses of the type envisaged become, as a consequence of approving the development before it, more extensive within the locality. So saying, I do not wish to be taken as suggesting that the “precedent effect” of allowing any particular development to be taken as either sole or the dominant criteria in any particular case, but rather that, in some cases it may be a factor to which a planning authority and this Court might properly have regard. Such a factor can never stand alone. It does not entitle either the relevant authority or this Court to either disregard the relevant conditions of the development plan or to treat the application concerned other than on its merits.
Bleby J in City of Charles Sturt v Hatch [1999] SASC 523 also recognised that the potential cumulative effect of applications which are at variance with the plan may require a particular vigilance.
The learned Judge appealed from said, after considering the question of precedent, at [46]:
By basing his decision on the likely cumulative effect of future development applications the Commissioner was effectively usurping the function of the Development Plan itself. If the Council is independently concerned about what it considers to be an undesirable trend in the Oakbank Village Policy Area towards smaller allotments, the proper approach is to take steps to amend the Development Plan to specify desirable minimum allotment sizes for the area. It is for the Development Plan to set the policy. It is for the planning authorities to administer it. Until the Development Plan is amended, each application must be judged against the current requirements, not against what might be considered to be appropriate future policy.
His Honour then repeats, “the Commissioner’s consideration of the precedent set by these applications had a major if not dominant effect on the decision he made”.
I do not agree with that conclusion because it is my view that the Commissioner had already made findings based on the plan, and the evidence before him, before he added to those findings his view as to the potential for cumulative effect. In short, I do not consider it was the major or dominating influence on the Commissioner’s decision but merely added to his findings. I believe that the use of the “precedent” factor was to reinforce his finding that the proposals were “sufficiently at variance.. to warrant their refusal” [44].
Evidence of Existing Smaller Allotments
The learned Judge deals, in detail, with the question of allotments of what he calls “a similar size and dimension in Oakbank” and in relation to those proposals says at [44]:
All that can be said about these proposals is that they could be perceived as part of a trend to subdivide larger vacant allotments in the township which might have an inevitable effect on the character and amenity of the locality. However, there is no evidence that the previous subdivisions and the erection of dwellings on them had had an adverse effect on the township’s character and amenity such as might justify the arrest of such a trend. There was no evidence that these proposals in themselves would have that effect.
The respondent argued that there was in fact no evidence before the Commissioner on that issue. The appellant contends that that is not correct, and that one important overriding aspect is that the documents supporting the appeal which was lodged in the ERD Court emphasised how the respondent in this court wished to place significant weight on the fact of other recent developments of smaller allotments in the locality.
In other words, the present respondent was seeking to advance its case by relying on various recent approvals given in relation to nearby smaller allotments.
In a letter written by the developer to the ERD Court on behalf of the respondent, dated 8 December 2004, the respondent said:
Prior to lodging this land division my client had made numerous approaches to the planning department of the Council with preliminary proposals to construct 2 or more dwellings upon her property. These approaches were based upon numerous other approved example developments in the immediate vicinity of this land. These had all met with negative verbal responses and culminated in written advice from Council [letter dated 25 August 2004, item 4]. copy attached] stating their latest position “a rather strong position in more recent times” in relation to medium density development, and that a formal application should be submitted in order to test this. – my underlining.
In that letter, the respondent’s agents also said:
I point out that my client’s land [indicated in green highlight item 9.] is ideally situated for village style development being an allotment adjoining the rear of those fronting the main street, and as such is much more appropriately positioned than the majority of the other medium density developments that have occurred recently, as indicated by pink highlighting on the attached plan item 9]. – my underlining.
The appellant argued that these were the type of matters that the Commissioner was taking into account in para [31] of his reasons referred to earlier. The Commissioner viewed the whole of the relevant locality and saw not only the subject land, but also the other developments nearby including a development in Birch Road, which was on re-divided and smaller allotments.
It is clear that the Commissioner was particularly interested in this type of background evidence. The Commissioner put a series of questions to both planners on this topic. Mr Barnes, the planner who supported the position of the council, was questioned by the Commissioner as to how a number of factors including sizes of allotments could, as he put it in his question, “erode the low density nature of the locality”.
The Commissioner asked, “… when do you see the cut-off or can’t you say where the cut-off might be as to what is low density and what is not low density in the township?” Mr Barnes said in response, “I think when you are getting close to 500 dwelling square metres per area [sic], I think you are getting pretty much into that high density mark, I think erring on certainly medium density than you are on low density at that point.”
The Commissioner was also concerned to know about a recommendation regarding a development adjoining the land to the rear of the subject land, in which Mr Barnes had been involved. That proposal created allotments less than 600 sqm in area. Mr Barnes distinguished that matter because of the distance from the main road.
The series of questions directed by the Commissioner to Mr Barnes (see AB 53 – 62 inclusive) is instructive as to the thinking of the Commissioner. One particular question and answer was:
Q.What are the actual physical reality impacts.
A.The provision of an additional allotment in the streetscape which takes away from the character of the locality which is, in my opinion, single dwellings on larger allotments with wider street frontages. By imposing an additional allotment with smaller frontages and an additional dwelling, it will impact on the character.
The Judge’s Calculations
The learned Judge considered the question of low-density residential development and conducted an analysis of various lot sizes in the Oakbank Village Policy Area, the details of which are set out at [53] of his reasons. Out of a total of 143 allotments, he calculated that 17 were between 400 and 600 sqm. Nine were between 600 and 800 sqm. Therefore, 117 out of 143 were greater than 800 m and his Honour concluded that the concept of 1,000 sqm as prescribed by Principle 44(a) could not have been intended to have any application in the Oakbank Village Policy Area when more than half of the allotments were less than 1,000 sqm, and therefore could not be used as a guide in determining what was meant by low density residential development within the Oakbank Village Policy Area.
The learned Judge’s analysis was based on his own calculations and the plan, Exhibit A3, before the Commissioner. That plan relates to the various lot sizes in the whole of the Oakbank Village Policy Area. The evidence however which the Commissioner dealt with related to the more specific and more limited area of the relevant locality as he found it, having regard to the evidence of what the relevant locality was as given by both of the planners. While the plan, Exhibit A3 was before the Commissioner he did not use it in the same manner. Rather, it was used to define the locality from within which his calculations were then performed. The determination of the relevant locality is very much an informed planning judgment. In the end, the Commissioner decided the relevant locality to be most similar to that defined by Mr Barnes.
The Council had earlier dealt with the relevant locality as shown by the Development Assessment Panel meeting agenda, which was evidence before the ERD Court. The Council described the surrounding area as follows:
The surrounding area.
The subject land is located in the older residential portion of Oakbank where the majority of allotments are in the order of 900m2 to 1,000m2 in area. This allotment size reflects the original land division pattern of Oakbank (refer to Allotment Sizes Plan 1 – Attachment 3). While existing dwellings in the locality vary in style and design, the predominant character is one of single-storey, detached, modest houses sited reasonably close to fairly narrow streets. These elements contribute to the low-density ‘village’ character of the area.
More recently, there appears to have been a number of land divisions approved which have begun to alter the character of the area by introducing smaller blocks containing a more modern style of dwelling with greater site coverage. These divisions, however, have not yet reached a point whereby the smaller lots have begun to dominate the character. This is demonstrated by Allotment Sizes Plan 2 (refer – Attachment 4) which identifies that the 80% of allotments (148 and 185) within Oakbank are greater than 800m2 in area. (My underlining).
The council’s conclusion was that, “In terms of density, it is considered that the proposal will have an adverse impact on the village character as it erodes the low-density nature of the locality” (my underlining). Mr Barnes, the planner, was of course influential in advising the council in this matter. He referred throughout his statement of evidence to the relevant locality. He stated in his evidence under the heading of “Locality”:
The allotment pattern reflects the layout of the streets with most facing either north-east or south-west. The majority of allotments are rectangular in shape with areas in the order of 850m2 to just over 1,000m2 with frontages typically greater than 26m in width. This allotment pattern establishes a sense of space between buildings, which, notwithstanding the reasonably narrow streets, is a feature of the locality. There are, however, a number of smaller, presumably more recently created, allotments in the locality. The smallest of these is 477m2 in area.
A plan was produced which showed all of the allotment sizes in the relevant locality. Mr Barnes’ conclusion was that these more recently approved land divisions had begun to alter the character of the area through the introduction of smaller allotments ranging in size from 477 sqm to 500 sqm. He said:
These new allotments typically contain a more modern style of dwelling with greater site coverage and smaller street frontage. These divisions, however, have not yet reached a point whereby the smaller lots have begun to dominate the character. This is demonstrated by the fact that 76% of allotments (25 of 33) within the locality are greater than 860m2 in area.
An assessment of the allotment sizes within the locality as considered by the Commissioner, tends to support there was appropriate concern from both the council and the Commissioner. It was after this assessment that the Commissioner was able to conclude that the present proposal could not be considered low-density because it involved the construction of two dwellings on an allotment which, as he said, would, in most other cases in the locality, only accommodate one dwelling. He concluded:
In the context of the locality, therefore the proposal is not low-density as envisaged by the development plan (my underlining).
Therefore, as I see it, both the Council and then the Commissioner were concerned that in the relevant locality 75 or 80 percent of allotments were of a substantial size, namely, 800 sqm or more, and that in more recent times a number of land divisions had begun to alter the character of the area.
The Commissioner was justified, in my view, in accepting that evidence, and it was only after an acceptance of that evidence and his specific finding that the proposal offended against the principle of low-density, that he went on to consider the precedent factor. Further, this was largely in response to the evidence put forward by the respondent Gibson.
It is my view that it is not correct to say that the Commissioner was concerned more with precedent than the effect of these proposals in themselves. I do not agree with the learned Judge that there was no evidence that earlier approvals for subdivisions or smaller allotments had “an adverse effect on the township’s character and amenity such as might justify the arrest of such a trend”. In my view, there was evidence to support that view, and that evidence was appropriately taken into account by both the Council and by the Commissioner.
The Village Character of Oakbank
The Commissioner set out the features, as he saw them, in determining the village character of Oakbank. The learned Judge agrees that the features identified by the Commissioner are relevant having regard to the Development Plan and the evidence before the Commissioner.
The Judge referred to the finding of the Commissioner, and found that none of the factors listed by him would be compromised by the applications. The Judge then went on to say at [72]:
That was a conclusion well open to him on the evidence, and having reached that conclusion in relation to both development proposals, the Commissioner’s conclusion that the land division proposal was at variance with, among others, Zone Objective 5 and Policy Area Objective 2 and Principle 5 would appear to be perverse. As mentioned above, the only apparent reason for reaching that conclusion was based on the perception of the development being used as a “precedent” which drove him to that conclusion.

I do not consider the conclusion of the Commissioner at [36] to be premised on notions of precedent. The Commissioner says:
I have described the existing so-called village character above under the heading The Locality utilizing seven dot points. The evidence of both planners is that the dwellings’ siting, design and appearance would not diminish the village character. I agree. Contrary views were expressed as to whether the site areas and frontage for each dwelling and effectively, an additional dwelling being achieved on the subject land, would jeopardise the village character existing in the area and perceived from the street.
In my view, the Commissioner is saying that as to siting, design and appearance, there would be no diminution of the village character. He referred to contrary views expressed by the planners and expressed the view that this proposal for the reasons already set out in paragraph 9 would, because of an already existing adjoining dwelling to the southeast in Elizabeth Street cumulatively change the character in Elizabeth Street. He went on to say that all the more so if further developments took place in the future. Viewed in that way I do not consider the reasoning of the Commissioner to be ‘perverse’.
Interference by an Appeal Court with the Decision of an Expert Planning Tribunal
In Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165, Debelle J, with whom Cox and Duggan JJ agreed, said:
As has been frequently stated, this Court will interfere with the Tribunal’s conclusions upon essentially planning issues in exceptional cases only. The Court does not sit to hear purely planning issues to be argued unless the Tribunal has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. This Court is reluctant to substitute its planning opinion for that of he Tribunal and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles. I refer to what has been said by this Court in Transfield (Adelaide) Pty Ltd v Port Augusta City Corporation (1982) 29 SASR 467 at 480; Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 (at 188); Penley v Murray Bridge District Council (1992) 163 LSJS 128. (Original emphasis)
In my view, the Commissioner was well qualified to express the views which he did, and in particular his concern that there was a variance from the plan, and as to the fact of a trend in relation to recent smaller developments.
It is my view that the Commissioner was correct in the way he dealt with the factual issues surrounding the subject land. He used both his assessment of the facts together with his planning judgment to reach his conclusions. I do not believe in these circumstances that this is a case in which it is appropriate to substitute a planning opinion for that of the ERD Court. I do not consider that the decision of the ERD Court shows any fundamental departure from proper planning principles.
Conclusion
1The Council was clearly concerned in refusing both applications that a number of recent developments in the locality surrounding Elizabeth Street had started a trend away from low-density;
2The Council and the Commissioner were particularly concerned with the relevant locality as distinct from the policy area as a whole in considering whether the development was low-density;
3The learned Commissioner had evidence before him on which to base his findings relating to density;
4A review of the whole of the evidence shows that the Commissioner’s finding, both with regard to the question of low-density and as to the impact on the village character of Oakbank, were justified.
5The learned Judge appealed from was in error in interpreting that evidence;
6The learned Judge appealed from was in error in finding that the question of precedent prevailed in the Commissioner’s findings and that an error of law had been made;
7The learned Judge should not have interfered with the findings of the expert tribunal because there was no error of law demonstrated in the interpretation of the relevant principles under the Development Plan;
8I would therefore allow the appeal and order that the decision of the Commissioner, upholding the decision of the Council, be restored.
LAYTON J: For the reasons given by Anderson J I consider that the appeal should be allowed and that the decision of the Adelaide Hills Council should be restored.