City of Mitcham v Ansaar
[2006] SASC 78
•17 March 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
CITY OF MITCHAM v ANSAAR & ANOR
Judgment of The Honourable Justice Debelle
17 March 2006
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL
Application to divide land for residential purposes - land located in Adelaide foothills - intent of Development Plan - extensive excavation required - relevance of like forms of division of land - whether subdivision similar to past subdivisions encouraged by Development Plan - held, grant of development consent set aside - appeal allowed.
Environment Resources and Development Court Act 1993 s 30; City of Mitcham Development Plan 2003 Council Wide Principles 24, 44, 45, 46, 144, 145, 146, referred to.
City of Mitcham v Freckmann (1999) 74 SASR 56, applied.
City of Mitcham v Pearce [1999] SASC 518, considered.
CITY OF MITCHAM v ANSAAR & ANOR
[2006] SASC 78Land and Valuation Division
DEBELLE J. This is an appeal from the decision of a Commissioner of the Environment Resources and Development Court (“the Environment Court”). The appeal is to a single judge of this Court pursuant to s 30(1)(b) of the Environment Resources and Development Court Act 1993.
The respondents own a parcel of land within the area of the City of Mitcham (“the Council”). They applied to the Council for provisional development plan consent to divide an allotment of land into four allotments to be used for residential purposes. The division of the land also included a small road, effectively a cul-de-sac, to provide access to the new allotments. The respondents later amended their plan to reduce the number of allotments to three.
The Council refused the application. The appellants appealed to the Environment Court. The appeal was heard by a Commissioner who allowed the appeal subject to 37 conditions. The Council has appealed to this Court against the decision of the Commissioner.
The Relevant Development Plan
The respondents lodged their application to divide the land on 16 May 2003. The relevant Development Plan was dated 20 September 2001. An amended version of that plan was gazetted on 12 November 2002 but it was not published as a consolidated version until 5 June 2003. The provisions relevant to the determination of the issues in this appeal are identical in each the 2001 and the 2003 plan, save for the numbering of the Objectives and Principles of Development Control. The parties and the Commissioner therefore referred to the terms of the later plan. There is no need for this Court to do otherwise.
The Subject Land and Locality
The Commissioner’s examination of the subject land and locality was not in dispute and this summary is taken from it.
The subject land is within the Residential (Foothills) Zone. As its name suggests, that zone stretches across parts of the foothills of the Mount Lofty Ranges. The subject land is in the foothills which are south of Clapham and Torrens Park. The land has a frontage to Belair Road. It is triangular in shape with an area of about 6,545 square metres. It has a slope of more than 1:3 from the south‑east to the north‑west.
The locality has the following features which the Commissioner found to have a bearing on the assessment of the proposed land division:
·Allotment sizes (excluding the subject land) from 424 square metres to 1,788 square metres.
·Several of the allotments have access from culs-de-sac running directly off Belair Road.
·Dwellings have the following general characteristics
ØContemporary designs of the 1960’s to the present day.
Ø A range of heights – single storey, split level, two‑storey, four‑storey.
Ø A range of colour schemes but tending towards earth tones (with some exceptions).
·Retaining walls are prevalent and have been constructed (in the formation of public roads and private driveways) using natural stone, crib walls and other construction techniques such as “sleepers”.
·Gradients of the land on either side of Belair Road are steep. This road together with the residential development in the locality has been the cause of a significant alteration to the natural form of the land.
The Commissioner found that the amenity in the locality is high, despite the noise and general nuisance from the high volumes of traffic using Belair Road.
The subject land rises steeply from Belair Road. The maximum grade of the pavement of the proposed cul‑de‑sac is 18 per cent. It levels out at the head of the cul‑de‑sac and provides access to the three allotments. It is necessary to make extensive excavation to form the cul‑de‑sac and to provide access to each allotment. The vertical cut adjacent to the boundaries of Lots 1 and 2 varies up to a maximum of 4.6 metres. The cuttings will lean back from the road and be supported by a crib wall 1.5 metres high with stone above it. It is likely that extensive excavation will also be required to accommodate a dwelling on each allotment.
The Council’s Decision
The Council had refused development consent on three grounds, namely
·As a result of the visual impact from earthworks and associated retaining walls and the removal of remnant native vegetation, the proposed development is not in keeping with Objective 1 of the Residential (Foothills) Zone.
·The proposal is at odds with the Desired Character Statement for the Residential (Foothills) Zone and therefore at odds with Principle of Development Control 1 of the zone.
·Retaining walls required for the earthworks associated with the construction of the public access road will exceed 1.5 metres. The proposed development is therefore not in accordance with Council Wide Principle of Development Control 24.
The Issues in the Environment Court
The Commissioner identified two central issues in the appeal as being:
·The extent to which the proposed division will be suitable for its intended use for three dwellings having regard to the earthworks necessary to access each allotment and the topographical constraints on the siting and design of future dwellings.
·The extent to which the cut and fill necessary to form the road (taking into account the plan in Exhibit A2) conflicts with the Objectives and Principles for the Residential (Foothills) Zone and the Statement of Desired Future Character and those Council Wide Principles intended to regulate earthworks generally in respect of residential development and land division specifically.
The Development Plan
There is one Objective only for the Residential (Foothills) Zone. It is in these terms:
Objective 1: Development comprising detached dwellings at low densities where the site area, design, siting and appearance of development takes account of the particular topography of the area such that any development has minimal visual and environmental impact.
That Objective is followed by a statement of the Desired Character of the Zone, to recite its terms:
Residential (Foothills) Zone comprises [sic] the southern portions of the suburbs of Pasadena, Panorama and Torrens Park and portions of Lynton, Bedford Park and Mitcham …
This zone is characterized by two main distinguishing features. The first relates to the topography of the area which ranges from gently undulating to very steep. The elevation of the area gently increases as the Adelaide plains merge with the foothills of the Mount Lofty Ranges. The second relates to the age of the housing stock; constructed primarily since the 1960’s and 1970’s; its condition is generally very good.
As a result the area has a relatively modern character with some very large homes built on generous allotments usually in excess of 600 square metres. Considerably larger allotments occur in the steeper portions of the area. Many houses are two-storey or split‑level in design. Commanding views are available from the most elevated sections of the area, and consequently those areas are also quite visible from many viewing points on the flatter Adelaide plains and elsewhere.
The character of the zone should substantially remain the same, and new dwellings of similar density should continue to be developed in the area. Where appropriate new sites may be created for dwellings. However, considerable attention should be given to the impact of any subsequent development on the privacy and amenity of existing properties, and the appearance of the development if it is in a highly visible and prominent location. New development should also preserve and reinforce the environmental qualities of the area by avoiding interference with natural drainage lines and creeks, remnant vegetation, and minimising alteration to the natural ground levels.
Due to the age and condition of housing in the area and the steep topography in some parts, the zone is generally not suited to any higher density form of residential development than that already prevailing. Opportunities for dwellings with smaller site areas, which would add to the range of housing choices in the policy area, may be appropriate on relatively flat sites where environmental and amenity impacts are likely to be negligible.
Of particular relevance is the fourth paragraph of this statement. I will return to it.
The Principles of Development Control for this zone which are relevant are:
Form of Development
1Development should be in accordance with the objective and desired character of the zone.
2Sites for detached dwellings and group dwellings, and land division creating sites for such dwellings, should satisfy the following minimum site dimensions.
Gradient Minimum Width (metres) Minimum Area (square metres)
Detached Group
<1:8 12 700 500
1:8 to 1:4 15 900 700
>1:4 20 1200 900
…
Siting and Design
4Development should be designed and sited to relate to the slope of the land, so that:
(a) the bulk and scale of the buildings do not dominate the landscape;
(b) the amount of cutting and filling of the natural ground profile is minimised;
…
5Development that would be prominently visible from the Adelaide plains should:
(a) achieve a profile that blends with the topography of the land;
…
(c) incorporate existing vegetation wherever possible and additional landscaping to assist in reducing the apparent bulk and scale of the building and any site works.
In addition it is necessary to note the following Principles which apply throughout the Council area:
Land Division
44(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.
45Land should be divided in a manner appropriate to the intended use of the land.
46The physical nature of land proposed to be divided should be suitable for the intended use of the land.
…
Appearance of Land and Buildings
144The appearance of land, buildings and objects should not impair the amenity of the locality in which they are situated.
145Development, including the clearance of mature indigenous vegetation, should not detract from the character of the locality or hinder the attainment of the desired character of the zone in which the development is to be undertaken.
146Development should not impair the natural character of the face or the skyline of the Mount Lofty Ranges as seen from that part of metropolitan Adelaide located on the plains.
There are other provisions which bear upon an assessment of applications for land division, but they are not directly relevant in this appeal.
It is, however, necessary to note Principle 24, a Principle which applies throughout the Council area:
Retaining Walls and Earthworks
24Earthworks resulting in the filling and/or excavation of land more than 1.5 metres above or below natural ground surface should be avoided, and only undertaken where existing vegetation, proposed landscaping or the form of the building would assist in screening the earthworks from view from the adjoining road.
In addition, retaining walls over one metre in height are to be:
(a) located a minimum of one metre inside the boundary of a dwelling site;
(b) if located closer to a road or boundary than a dwelling, constructed to allow landscaping to be installed above and over the wall;
(c) not greater than 1.5 metres high.
This Principle concerns the extent of excavation and filling associated with the construction of dwellings. The Council contended that it applied also to road construction. I will return to that issue.
The Commissioner’s Reasons
When assessing the proposal against the Development Plan, the Commissioner held that the relevant provision for assessment of the excavation necessary for a public road was Principle 44, not Principle 24, as the Council had contended. Noting that Principle 44, unlike Principle 24, contains no numerical guidance for the depth of cut and fill for road works associated with a land division, the Commissioner expressed the manner in which he believed the issues should be approached. In doing so, he stated his view as to the proper interpretation of the statement of Desired Character for the Residential (Foothills) Zone.
41Principle 44, unlike Principle 24, does not contain a numerical guideline for the depth of cut and fill for works associated with a land division. Why this is so is not immediately apparent. However, it is an approach to planning for land division that appears to me to be quite consistent in the circumstances. In this instance the subject land is in a zone within which steep topography is an acknowledged characteristic and one which expressly supports the creation of allotments on land with slopes exceeding 1:4. The principle, inter alia, suggests that land division should occur in a form consistent with the existing pattern of division in the locality, taking into account several aspects of development including the extent of cut and fill.
42To maintain the existing character of the zone as advocated in the statement of desired character and obtain its principle objective and to comply with the provisions of Principle 44 would, together, be difficult tasks to achieve if the excavations necessary to create public roads (and for that matter access roads to each allotment) were limited to (say) 1.5 metres as provided for in Principle 24. It seems to me that excavations of quite sizeable depths are obvious and necessary consequences of creating a zone in the foothills of metropolitan Adelaide on land that is relatively steep, within which it is permissible (subject to other conditions for compliance being met) to create allotments of the size and dimensions and on slopes stated in Principles 2 and 7.
43That said, the nature, extent and treatment of cut and fill should take into account the provisions in Objective 1 for the zone and Principle 144 and apply them to the appropriate context (which would include the directions for the zone expressed in the statement for the Desired Character).
44Mr Manos is correct when he submitted that the provisions of the Development Plan for land division speak to the future use of each allotment. Council Wide Principles 44(a)(i) and (b), 45 and 46 are notable in this respect. However, there is little in the Development Plan to support his submissions (and the evidence of Ms Riggs) to the effect that its current provisions were introduced, in part, to avoid a repeat of the type of development evident in the locality. To the contrary, the statement of the Desired Character for the zone quite expressly advocates the maintenance of the existing character. Granted, that statement also urges that assessment of new development should, inter alia, “pay considerable attention …. to the …. appearance of development if it is in a highly visible location ….” and take into account the change to natural ground level. In this respect it speaks of “minimising alteration” to natural ground level. Again this approach should be read in the context of the zone, its topography and visual exposure and the existing character of the locality.
He then held that he could not conclude that the part of the subject land where most of the excavation will occur was visually dominant. In reaching that conclusion, he found that it was very visible from Belair Road, but not visible from a distance. It was, he found, less visible from a distance than existing development in the locality. He then decided that the proposed land division was suitable for the intended use for residential purposes. His reasons were that future dwellings could be appropriately accommodated on the proposed three allotments. His next reason was that, properly designed and constructed, the cut and fill necessary to create the public road and access to each allotment “is in adequate compliance” with the relevant provisions of the Development Plan. He expressed his reasons for the second part of that conclusion in these terms:
46… In reaching this conclusion I find that Principle 24 does not apply and consider that any conflict with those provisions which speak to development which “minimises visual impact” (Zone Objective 1) and minimising alteration to natural ground level must be balanced against the following:
(a)That aspect of the statement of the Desired Future Character that seeks to have the character of the zone “substantially remain the same” supported as it is by a comprehensive statement of the existing state of affairs, which statement accepts, as a reality, the steep topography of land.
(b)The various aspects comprising the character of the locality including road patterns, road length and excavation and the terms of Principle 44 which encourages land division for residential purposes to be “consistent with the existing pattern of division in the locality”.
(c)The fact that the part of the subject land in which the majority of the excavation is to take place is not highly visible from the Adelaide Plains, thus avoiding conflict with Council Wide Principle 146.
(d)To the extent that the subject land may be prominent when viewed from Belair Road, any conflict with Zone Principle 5 is to be seen in light of the nature of the traffic conditions referred to earlier.
47I have also placed some weight on the design for the retaining walls in Exhibit A2. As some properties in the locality demonstrate, well designed retaining structures are an effective way of concealing the visual effect of excavation and the resulting change to the natural landform. The approach taken equally applies to the future access to Lots 1 and 2 as shown in an indicative manner on the plan prepared by Mr Manos (Exhibit R2).
48However, by virtue of the statement of Desired Character development in this zone needs to be treated sensitively. Some development in the locality clearly demonstrates the undesirable outcome of excavation when undertaken in an uncoordinated manner. There is ample justification in this instance to properly specify the treatment of the earthworks for the public road, specify (to the appropriate level of accuracy) the position and treatment of the entranceways to Lots 1 and 2 and the retaining walls in a manner consistent with the public road and provide a detailed revegetation plan for the retaining walls and the land between the proposed pavement and the Belair Road boundary, all of which being part of the works necessary to be undertaken (or binding arrangements being made) before the issue of the appropriate certificates.
This is a fundamental slip in the Commissioner’s reasoning. For the reasons which follow the Commissioner has erred in his approach.
Central to the Commissioner’s reasoning is his understanding of the meaning and effect of the provisions in the Development Plan relating to the Residential (Foothills) Zone and, in particular, the meaning and effect of the statement of Desired Character of that zone. He concluded in para 41 that
·the provisions relating to the zone expressly support the creation of allotments on land with slopes exceeding 1:4; and
·that the principle suggests that land division should occur in a form consistent with the existing pattern of division in the locality, taking into account several aspects of development including the extent of cut and fill.
The Commissioner’s interpretation of these provisions entirely misconceives the purpose and intent of the stated Objectives and Desired Character for this Residential (Foothills) Zone. It is apparent from the context of his remarks that the Commissioner’s reference to “the principle” is a reference to Principle of Development Control 2 for this zone.
When read as a whole, it is apparent that the Development Plan intends that land division in this zone should occur only where it is appropriate. There are several provisions in the Development Plan which indicate that intention.
First, the manner in which Objective 1 is expressed differs in one important particular from the manner in which Objectives for other residential zones are expressed. Objective 1 has been quoted earlier in these reasons. Its terms are to be contrasted with the only Objective for the Residential (East Plains) Zone which comprises the suburbs of Springfield, Birksgate, Netherby and Urrbrae, and with Objective 1 of the Residential (Central Plains) Zone which comprises the suburbs of Kingswood, Mitcham and Netherby among others. The sole Objective for the Residential (East Plains) Zone provides:
Development comprising detached dwellings on large allotments.
Objective 1 for the Residential (Central Plains) Zone provides:
Development comprising primarily detached dwellings … undertaken in a manner that complements the predominant architecture, streetscape and low-density character of existing development in a locality.
These zones are in the area bounded on the north by Cross Road, on the east by the South‑Eastern Freeway, on the south by the foothills of the Mount Lofty Ranges, and on the west by Marion Road. These zones are essentially on the plains of metropolitan Adelaide. What is to be noticed in the Objective for the Residential (Foothills) Zone is that the intent is that development should have, among other things, minimal visual and environmental impact. That qualification is entirely absent from the Objectives for the two other residential zones. It is an important qualification. It signifies that, if the proposed development does not have a minimal visual and environmental impact, the development might not be entitled to a grant of development consent. The reason for the inclusion of the qualification obviously lies in the fact that, unlike the other two zones, this zone is in the foothills, where residential development might have an adverse impact on the visual appearance and amenity of the foothills, on the topography of the foothills, and on the general environment, factors which, as a general rule, do not have to be considered in the other two residential zones.
The terms in which the desired character of the zone is expressed re‑inforce the intent of Objective 1. In the second paragraph of the statement of Desired Character of the zone, the topography of the zone is stated to be one of the two main distinguishing features of the zone. The other is the kind of residential development in the zone which is also described in the third paragraph. The fourth paragraph states the relevance of these two distinguishing features to intended development. It is useful to repeat that paragraph:
The character of the zone should substantially remain the same, and new dwellings of similar density should continue to be developed in the area. Where appropriate new sites may be created for dwellings. However, considerable attention should be given to the impact of any subsequent development on the privacy and amenity of existing properties, and the appearance of the development if it is in a highly visible and prominent location. New development should also preserve and reinforce the environmental qualities of the area by avoiding interference with natural drainage lines and creeks, remnant vegetation, and minimising alteration to the natural ground levels.
For present purposes, the second sentence is important. The clear intent is that new residential allotments may only be created where it is appropriate to do so. When considering whether it is appropriate to create new residential allotments, regard should be had to the factors set out in the sentences which follow in that paragraph. Those factors include preservation and re‑inforcement of the environmental qualities of the area by, among other things, minimising alteration to natural ground levels. It follows that, if a proposed division of land does not preserve and re‑inforce the environmental qualities and in particular does not minimise alteration to natural ground levels, it may not be an appropriate site for residential development. So, when the opening sentence of this paragraph states that the character of the zone should substantially remain the same, it is expressing an intention that the zone should remain residential, with larger allotments in steeper portions of the zone and new residential allotments only where appropriate. The Commissioner’s conclusion in para 41 that the provisions of the zone expressly support the creation of allotments of land with slopes exceeding 1:4 mis‑states, if not distorts, the intent of the zone. It entirely ignores the clearly expressed intent that new allotments may be created where it is appropriate. It is apparent that the Commissioner’s conclusion is grounded on Principle of Development Control 2 for this zone. The Commissioner has misconceived the purpose and intent of that principle. Its purpose is simply to state the minimum dimensions of allotments. It prescribes minimum dimensions on the footing that the site is otherwise suitable for residential development. It is not a statement that supports the creation of allotments on land with slopes exceeding 1:4.
The Commissioner’s next sentence in para 41 of his reasons also ignores the expressed intent of this zone that new allotments may only be created where appropriate. While it is correct to say that land division should be consistent with existing patterns of division in the locality, taking into account such aspects as the extent of cut and fill, it is incorrect to extract from that proposition, as the Commissioner has done, on the premise that the zone expressly supports creation of allotments on land which is steep.
When the Commissioner’s reasons are read as a whole, it is apparent that it proceeds on these wrong premises. So when dismissing the submissions of Mr Manos that the intent of the Development Plan is to avoid a repetition of the kind of development already existing in the locality, the Commissioner states that the statement of Desired Character of the zone “expressly advocates the maintenance of the existing character”. When he does so, he proceeds on the footing that, because it already exists in the locality, the proposed land division should be permitted provided that it minimises alteration to natural ground level. In doing so, the Commissioner has mis‑stated the approach to be adopted when considering the application for land division. His reasoning has proceeded on the footing of a presumption in favour of the proposed development so that it should be approved in the absence of any material conflict with the Development Plan. As the Full Court said in City of Mitcham v Freckmann (1999) 74 SASR 56 at 60, that is not the proper approach. The correct approach is to consider all relevant issues without making any presumption for or against the proposed use: City of Mitcham v Freckmann at 61 – 64. This flaw permeates the whole of the Commissioner’s reasoning.
In addition, the Commissioner’s approach is tantamount to a prescription to preserve the mistakes of the past, rather than to ameliorate them or avoid them in the future. That is not what the Development Plan means when it states the Desired Character for the zone. When it says that “the character of the zone should substantially remain the same”, it is speaking of an intention to retain it as a residential zone with residential buildings similar to those which currently exist and to permit land division where it is appropriate. The statement that new land division should be permitted where appropriate indicates that the question whether land division should be permitted is not to be resolved by noting that there is other residential development in the locality which has involved substantial excavation or landfill, which was the Commissioner’s approach. That approach is to ignore that part of the fourth paragraph which requires new development not only to preserve, but also to re‑inforce the environmental qualities of the area. Instead, an application for development consent for land division is to be considered by determining whether it is appropriate on the site, having regard to the factors listed in the fourth paragraph and to other relevant provisions in the Development Plan.
It is to be noted that much of the land division in this area occurred when the terms of the Development Plan and, in particular, the provisions of this zone were less rigorous than they are now. The amendments to the Development Plan have introduced criteria not present in the previous provisions of the Plan. Those changes have set higher standards to be satisfied by those who seek to divide land than had previously existed. The Commissioner’s approach failed to have regard to those changes.
The Commissioner was correct in concluding that Principle 24 does not apply to excavation for road purposes. The context in which it appears, as well as its terms (for example, sub‑para (c)), clearly indicate that it applies to the construction of dwellings and residential allotments. The Principles which apply to excavation for road purposes are Principles 44 and 46. The fact that these two Principles do not contain any prescribed limits as to the extent of excavation or filling does not, however, mean that the extent of excavation or filling is not a relevant issue or that proscriptions of a kind which are found in Principle 24 are not relevant. Sub‑paragraph (c) of Principle 44 expressly requires regard to be had to cut and fill, as the Commissioner himself noted. However, the Commissioner’s consideration of the issue of the extent of excavation for the proposed road fails to have due regard to the question of minimising environmental impact. In that respect, Principle 24 is relevant to the extent at least of indicating a limit of 1.5 metres on filling and excavation. If that is the desired limit on residential allotments, it provides some criterion by reference to which cutting and filling for road construction should be considered. Road construction which requires an even greater amount of filling or excavation may not, therefore, be appropriate. In this respect, the fact that the construction of an arterial road such as Belair Road might have required extensive excavation at particular points does not of itself justify extensive excavation on a small area of land intended to provide a very small road to provide access to three residential allotments. The factors affecting the construction of an arterial road are different from those affecting the construction of a small road to serve three allotments only. One obvious difference is the public interest in requiring the construction of an arterial road.
For all of these reasons, the Commissioner erred in his consideration of the proposed development. Those errors are so fundamental to his reasoning that his decision must be set aside.
This conclusion renders it unnecessary to deal at length with the Council’s other ground of appeal which concerned the retention of trees on the subject land. After the Commissioner had announced his intended decision, he invited submissions as to the appropriate conditions to be imposed on the grant of development consent. The Council asked for a condition requiring the retention of several trees on each allotment, including three significant trees. Although such a condition is lawful: City of Mitcham v Pearce [1999] SASC 518, the Commissioner refused to do so on the ground that the trees were not, in his view, of such value to require the condition. The Council has not demonstrated why it is necessary to interfere with that decision. In any event, the Council has the power to impose conditions preventing removal of trees if it had to consider whether to grant development consent to the construction of a dwelling.
It is necessary to consider whether it is appropriate to restore the decision of the Council or remit the proceedings to the Environment Court to be determined in accordance with the principles expressed in these reasons. Where the Environment Court has erred on a question of principle, proceedings are, as a general rule, often remitted to the Environment Court to be determined in accordance with the correct principles. However, that is not the appropriate course in this case. Two planners were called in the Environment Court. Each had opposing views on the desirability of the extent of excavation. Mr McBryde, who gave evidence for the respondents, believed that the amount of excavation was not excessive, drawing support for his conclusion from the pattern of land division in the locality which had considerable excavation to provide roads and access to allotments on steeply sloping land with substantial retaining walls. He had no regard to Principle 24. It is clear that the Commissioner has founded his reasoning on the view of Mr McBryde, a view which itself is founded on an incorrect view of the Objectives and statement of Desired Character of this zone. The opinion of Ms Riggs, the Council’s planner, that development consent should be refused was founded on several factors but, primarily upon the fact that the extent of cut and fill required to enable this division of land was too extensive, having regard to Principles 24, 44 and 46. As Mr McBryde erred in his approach and has proceeded on the basis of a wrong principle, there is no point in remitting the matter to the Environment Court, especially in light of the opinion of Ms Riggs.
For these reasons there will be orders allowing the appeal, setting aside the decision of the Environment Court made on 29 November 2004 and upholding the decision of the Council made on 7 October 2003 refusing provisional development plan consent.
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