Daleport Holdings Pty Ltd v Brooks
[2007] SASC 260
•11 July 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
DALEPORT HOLDINGS PTY LTD v BROOKS & ORS
[2007] SASC 260
Judgment of The Honourable Justice Debelle
11 July 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Application for development consent – construction of single storey dwelling with associated earthworks – whether excavation and earthworks consistent with Development Plan – whether proposal complied with Development Plan – relevant criteria – appeal dismissed.
Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165; Jim Stojan Pty Ltd v Jenny & Daughters Pty Ltd (1994) 179 LSJS 164; Leimal Pty Ltd v Adelaide City Council (2007) 246 LSJS 467; Ventura v Sustek (1976) 14 SASR 395, applied.
City of Mitcham v Freckmann (1999) 74 SASR 56; Hennig & Co Pty Limited v South Australian Planning Commission (PAT No 405 of 1992, delivered 1 March 1993); Moyes v J & L Developments Pty Ltd (2004) 236 LSJS 211; South Australia Housing Trust v Development Assessment Commission (1994) 63 SASR 35, considered.
DALEPORT HOLDINGS PTY LTD v BROOKS & ORS
[2007] SASC 260Land and Valuation Division
DEBELLE J. This is an appeal from a Commissioner of the Environment, Resources and Development Court.
The appeal concerns a proposal to erect a large dwelling on a parcel of land at 33 Birch Road, Stirling. The land is within the area of the Adelaide Hills Council (“the Council”). The Council categorised the application as a Category 3 development. It gave notice of the proposal to neighbours as well as giving public notice. Representations objecting to the development were made by a number of neighbours. They were made by Professor and Mrs Moyes, who reside on the allotment immediately south at 35 Birch Road; by Mr and Mrs Brooks, who reside at 41 Birch Road; by Mr and Mrs Sands, who reside at 29 Birch Road; and by Mrs Josephian of 25 Birch Road. These objections were essentially concerned that the proposed dwelling was too large for the site. Mr Lillie who resides on 31 Birch Road, the land adjoining the subject land to the north, also objected. He was concerned with the stability of his land given the earthworks and excavation proposed by Daleport. For convenience, I will call those who made representations “the objectors”.
The Council granted provisional development plan consent subject to a number of conditions. All of the objectors save Mrs Josephian appealed to the Environment, Resources and Development Court (“the Environment Court”), which upheld the appeal and set aside the decision of the Council. From that decision Daleport appeals to this Court.
This is the second appeal to this Court concerning the construction of a dwelling on this land. The first appeal was Moyes v J & L Developments Pty Ltd (2004) 236 LSJS 211. The facts in that appeal were that the Council had refused provisional development plan consent to a proposal to construct a dwelling on the land. The applicant for development consent appealed to the Environment Court. A Commissioner of the Environment Court granted provisional development plan consent to a very substantial two‑storey dwelling. The development consent was subject to a large number of conditions. On appeal by a number of the objectors, the Court set aside the decision of the Environment Court and restored the decision of the Council refusing development consent. I was the judge who decided that appeal. Neither party had any objection to me hearing and determining this appeal.
The Subject Land
The following description of the subject land and the proposed development is based on the findings made by the Commissioner which were not in dispute.
The subject land is on the northern side of Birch Road, Stirling and rises relatively steeply from that road. It has a narrow frontage to Birch Road and access to the allotment is gained by a right of way over the driveway of the adjoining allotment at 31 Birch Road. Mr and Mrs Moyes reside on adjoining land to the south at 35 Birch Road. Mr and Mrs Brooks reside on another adjoining allotment.
The land has a site area of 3,116 square metres. The land is elongated and irregular in shape. Originally the natural surface of the land fell from north to south and from west to east. The original fall was relatively steep and, generally speaking, that is still the position. However, at some time in about the 1920’s, part of the land was cut and filled to provide a level area in the central part of the site. In this appeal that levelled area was called a “platform”. It appears that the platform was once used as a tennis court for what is the allotment immediately north. At that time the subject land and the allotment immediately to the north formed one allotment. The subject land was created in 1993 following a decision of the Planning Appeal Tribunal to grant consent to a land division application: Hennig & Co Pty Limited v South Australian Planning Commission (PAT No 405 of 1992, delivered 1 March 1993).
The land to the north of the platform has a relatively steep upward slope. The land to the west of the platform has been excavated into the side of the hill, creating an excavated wall above which is the continuation of the driveway to 31 Birch Road. To the east of the platform the land falls very steeply from the platform for some 3 to 5 metres with a slope of about 1 : 1, tapering back to ground level at the northern side. This steep slope is the result of constructing the platform. On the southern side the land again falls very steeply from the platform towards the adjoining allotment owned by Mr and Mrs Moyes on the southern side at 35 Birch Road. The land in the south-west corner of the allotment is triangular in shape. It has a relatively steep slope. It is also relatively narrow and does not allow for a suitable building site. There are some trees on the land but a number of trees have already been removed. The trees removed include a number on the southern side of the allotment.
The Development Application
The present application for development consent has been made by a different company, Daleport Holdings Pty Ltd (“Daleport”). The following description of the proposal and the description of the locality are taken from the reasons of the Commissioner which, in this respect, are not in dispute.
Daleport proposes to construct a large, single‑storey, split‑level detached dwelling. The dwelling comprises four bedrooms, a living room, a large area disposed as a kitchen/dining area/family room and a large living room for children. Because of the split‑level design, the height of the roof would vary between 7.8 and 5.6 metres above ground level. It is proposed to construct the dwelling on the platform of land created many years ago. The area of the dwelling is large. It is 461.6 square metres. It covers a larger area of the site than the previous proposal. The platform will have an area of 650 square metres. It is plain that the dwelling will cover a very large part of the platform.
The form and siting of the proposed dwelling will require an extension of the existing platform in a northerly and westerly direction. It is proposed to make further excavation to create a platform about one quarter larger than the existing platform. Daleport also proposes to lower the level of the existing platform by excavating about half to reduce its height by between 1.2 and 1.3 metres and to reduce the height of the balance of the site by some 150 millimetres and 700 millimetres. This excavation is intended to reduce the visual impact of the proposed building and lower its vertical profile. The uncontroverted evidence is that the volume of soil and rock to be excavated would be 1347 m3, which would be a mass of 2,584 tonnes. It was estimated that some 129 truck movements would be required to remove the soil and rock.
Additional excavation of the existing embankment on the north-west of the platform is also proposed. It will result in a wall a little over 7 metres high, which is about 40 per cent higher than the existing wall. Mr Grounds, a geotechnical engineer, established that at its highest point, the proposed excavation of the north-western wall of the site would be 7 metres high, an increase of some 40% above the height of the existing excavation. His evidence was that the crest of the excavation would be located about 1.2 metres from the boundary with the adjoining land at 31 Birch Road. Some form of structural retaining wall or slope stabilisation works will therefore be necessary.
Locality
Three planners gave evidence. The locality defined by each essentially coincided and essentially was the area likely to be affected by the proposed dwelling. No issue was taken by Daleport with the definition or description of the locality.
The locality took in those properties which shared a common boundary with the subject land, namely 31, 35 and 41 Birch Road, and St Catherine’s Parish Primary School which is a little distance to the east of the proposed development, together with two nearby properties, 29 and 37 Birch Road. The Commissioner described the locality in these terms:
8With the exception of the school, the locality is characterised by very low-density residential land uses on steeply sloping land, allotment sizes ranging from 2,300m2 to over 9,600m2. Dwellings in the locality are typically large, with a mixture of architectural styles, appearance and building condition. Some dwellings are of single-storey part split-level design, others feature a second storey element. Dwellings are generally well obscured from views from Birch Road by extensive vegetation, 37 Birch Road being the only exception. Typically, dwellings have generous setbacks from road frontages, the exception again being 37 Birch Road, which is set back between 8.0m and 10m from Birch Road. Most dwellings are also set back substantial distances from side and rear boundaries with the exception of 35 Birch Road, which is set between 5.0m and 7.0m from its northern or rear boundary.
9A characteristic of dwellings in the locality is the use of excavation and filling to create driveways, building sites, garden and recreation platforms or benched areas.
10Gardens are a feature of the locality, with extensive areas of landscaping and many large trees contributing to an attractive, semi-rural landscaped character and high visual amenity…
12The land to the immediate south (35 Birch Road) accommodates a dwelling which is located approximately 5.0m from the boundary of the subject land and from the toe of the embankment created by construction of the existing platform. Two allotments abut the land to the east, these being 41 Birch Road, which contains a dwelling located approximately 35m from the subject land, and Saint Catherine’s Parish Primary School, which shares a boundary of approximately 50m with the subject land. The school land adjacent the subject land has recently been developed as an environmental education area and wetland. The dwelling located to the immediate north, 31 Birch Road, is sited approximately 45m from the subject land. The driveway to that dwelling runs parallel to the subject land’s driveway and then follows the subject land’s northwestern boundary. The Development Plan.
The Development Plan
The subject land and the greater part of the locality are located in the Country Living Zone in the Council’s Development Plan. Much of the area known as Stirling is within the Country Living Zone. The Council’s Development Plan contains Objectives and Principles of Development Control which apply throughout the Council area and then lists other Objectives and Principles of Development Control for each zone including the Country Living Zone. The Objectives and Principles which apply throughout the Council area regulate residential development as well as other kinds of development. The Commissioner noted the relevant provisions in his reasons.
The Country Living Zone is a zone which may be considered to be one of the residential zones in the Council area. As the Plan states, the area of the zone is “intended for low density residential development and associated ancillary development such as local recreation areas, local shops, primary schools and community facilities.”
An important aspect of residential development is summarised in Objective 33 which states that one of the objectives of residential development is “safe, pleasant, convenient and efficient residential zones”. The Development Plan immediately goes on to describe how that objective can be achieved in these terms:
Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight. Sunlight access, for example, not only benefits amenity, but also is necessary to enable effective use of solar energy collection systems. These systems are affected by building and allotment orientation and by shadowing from buildings and trees, and accordingly, it is desirable to protect existing collectors and recognise potential for use on sites adjacent to a development site. Residential zones should provide primarily for residential uses. New non-residential activities should generally not be located in residential zones, and extensions of existing non-residential activities should only occur when there is no adverse effect on nearby residential activities.
In short, the Plan is stating the criteria to which regard should be had by those designing proposed residential developments. Of particular relevance in this case is the criterion that residential developments should be well designed in order to enhance the residential character and amenity of the area.
Other relevant provisions to which the Commissioner referred are contained in principles of development control which operate throughout the Council’s area. The Commissioner called them “Council-wide provisions” in paragraph 15 of his reasons. He said:
15A number of the Council Wide Development Plan provisions are directed towards minimising the impact of development on natural landforms and on the scenic amenity of the Council area, in particular by minimising excavation and filling of land and ensuring that the buildings are sited unobtrusively. The following provisions are particularly relevant:
Council Wide
Form of Development
Principle 8: The excavation and/or filling of land should:
(a)be kept to a minimum and be limited to no greater than 1.5 metres to preserve the natural form of the land and the native vegetation;
(b)only be undertaken to reduce the visual impact of buildings, including structures, or to construct water storage facilities for use on the allotment;
(c)only be undertaken if the resultant slope can be stabilised to prevent erosion; and
(d)result in stable scree slopes which are covered with top soil and landscaped to preserve and enhance the natural character or assist in the re-establishment of the natural character.
Residential Development
Principle 82: Residential development should take account of the climatic and topographic conditions of the site.
Principle 87: Development in a residential zone or area should maintain the attractiveness of the area as a place in which to live, with buildings sited and designed in such a way as to not cause:
….
(f)adverse alteration of the character of the area.
Principle 88: Residential buildings should be primarily of single storey design, and split level design on sloping sites and; in particular:
….
(f)be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building:
….
Principle 89: The floor space, and bulk of a residential building and the space around the building should be appropriate to the locality in which the building is to be erected.
Conservation
Principle 191: Development should be undertaken with the minimum effect on natural features, land adjoining water or scenic routes or scenically attractive areas.
Appearance of Land and Buildings
Objective 92: Buildings or structures unobtrusively sited and of a character and design which blends naturally with the landscape.
Principle 226: Development should take place in a manner which will minimize alteration to the existing land form.
Principle 227: Excavation and earthworks should take place in a manner that is not extensively visible from surrounding localities.
Principle 230: Buildings should be sited unobtrusively and be of a character and design which will blend naturally with the landscape.
In Moyes v J & L Developments Pty Ltd at [22] I commented on these provisions:
It is abundantly clear that the intention is to keep excavation and landfill to a minimum in order to preserve the natural landform. The continued repetition of those goals serves to emphasise their importance.
The appellant did not call these comments into question.
The Planning Evidence
The planning evidence was given by Mr Burns for the Council, Mr Mickan for the Council, and Ms Bell for the objectors. The evidence of Mr Burns was that further excavation in conjunction with lowering the existing platform would reduce the visual impact of the proposed building and lower its vertical profile. The excavation would not be extensively visible from surrounding localities because it would be substantially screened by the completed building. Mr Burns said that the amount of excavation was minor and would have little or no impact on the character and amenity of the locality. The Commissioner rejected Mr Burns’ opinion that the amount of excavation was minor, a fact which, he said, called the validity of the planning opinions of Mr Burns into question. The Commissioner’s comment was challenged on appeal. The evidence supports the Commissioner’s criticism.
Mr Mickan gave evidence to similar effect to Mr Burns. However, he acknowledged that the extent of excavation might exceed that contemplated by the Development Plan. He was prepared to accept the amount of excavation on the ground that it would reduce the visual impacts of the dwelling by lowering it and enabling it to be set further back on the allotment.
Ms Bell agreed with Mr Mickan that the excavation went beyond what was envisaged by the Development Plan. In her view, the existing excavation went well beyond what was envisaged. The effect of her evidence was that the position would be exacerbated by the substantial nature of the proposed excavation so that the proposal would conflict with the Development Plan particularly those provisions directed towards minimising the excavation and fill and interference with existing land forms.
The Commissioner’s Assessment
It was common ground at the hearing in the Environment Court that the land was suitable for the construction of a dwelling. The main issues were first, the extent of the proposed excavation and its effect upon the land form and, secondly, the bulk and scale of the building. The representors submitted that the proposed dwelling was an over development of the site. Other issues were the potential for overlooking of a residential property to the east (the property owned by Mr and Mrs Brooks), the adequacy for screening purposes of the proposed landscaping, and the noise and disruption caused by the excavation and removal of soil and rock from the site.
The Commissioner concluded that, while the bulk and scale of the proposed building were substantial, the building was not so out of keeping with a number of other dwellings in the locality as to conflict with relevant provisions of the Development Plan. He also concluded that issues as to overlooking of adjoining properties were adequately addressed by the proposed screen planting and obscure glazing of windows. However, the extent of the proposed excavation was, in his view, fatal to the proposal. The Commissioner described the quantity of material to be excavated as substantial. It is not possible to disagree with that conclusion. Having noted the provisions of the Development Plan which emphasise unobtrusive siting of buildings and the minimisation of cut and fill, he concluded that the proposal would conflict with those provisions, in particular the Council Wide Principles 8 and 191 and Objectives 226 and 227. He determined that the proposed excavation was in such conflict with these provisions that the appeal should be allowed and the Council’s decision granting development consent should be reversed.
The Grounds of Appeal
The notice of appeal initially failed on behalf of Daleport was limited to an appeal against the Council’s conclusion the proposal was in conflict with the provisions of the Development Plan which seek to minimise excavation and fill and interference with natural land forms. Daleport complained that the Commissioner had attached too much weight to the provisions he had relied on and had failed to have sufficient regard to other provisions in the Development Plan. There was also an appeal against some findings of fact. There was no basis to interfere with those findings.
Later, an amended notice of appeal was filed on behalf of Daleport. It contained some 55 grounds. Some of the 55 grounds concerned detailed aspects of the evidence and there was no substance in them. There was quite a degree of repetition. I have had regard to all of the grounds in preparing these reasons.
At the hearing of the appeal the argument advanced by Mr Sallis on behalf of Daleport essentially consisted of three grounds, namely,
1that the Commissioner had focussed on one issue, namely, excavation and had ignored other relevant issues;
2that the Commissioner had misunderstood the effect of the evidence as to the extent of excavation; and
3that the Commissioner had concentrated on a quantitative approach to the question of excavation and had failed to adopt a qualitative approach to that question and in doing so have failed correctly to apply the provisions of the Development Plan.
In the course of his submissions on these issues, Mr Sallis submitted that the Commissioner had failed correctly to apply the decisions of this Court in South Australia Housing Trust v Development Assessment Commission (1994) 63 SASR 35 and City of Mitcham v Freckmann (1999) 74 SASR 56. For the reasons which follow, these submissions must fail.
Application to Lead New Evidence
The amended notice of appeal also contained an application to lead new evidence. The application sought to adduce evidence of a surveyor for the purpose of proving that the existing platform was too small to permit construction of the proposed dwelling. A further application to lead evidence to prove that the character and amenity of the locality is characterised by large dwellings with extensive excavation and filling was not pressed. Daleport sought to lead the survey evidence in answer to the following finding made by the Commissioner:
As Ms Bell observed in her evidence (which I accept) a range of design options was available for the construction, on the subject land, of a dwelling of the floor area proposed, without necessitating substantial new excavation. Indeed, no evidence was led to suggest that a substantial dwelling could not be contemplated wholly on the existing platform.
I dismissed the application. The reasons follow.
In order to be able to lead new evidence on an appeal three conditions must be satisfied. First, it must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be apparently credible, although it need not be incontrovertible: Venturav Sustek (1976) 14 SASR 395, 399-400; Jim Stojan Pty Ltd v Jenny & Daughters Pty Ltd (1994) 179 LSJS 164 at 169.
The particulars provided by the objectors some four weeks before the hearing of the appeal in the Environment Court directly raised the question of the extent to which the proposed dwelling covered the site, asserting that it was excessive. The particulars also referred to the proposed excavation. The particulars gave notice that one of the issues at the hearing was the suitability of the proposal on the site. The evidence which Daleport now seeks to lead could have been lead on the hearing of the appeal in the Environment Court.
More importantly, the evidence that Daleport seeks to lead will not affect the Commissioner’s finding that a range of design options are available. The conclusion that there are a number of design options will not in any respect be affected by the proposed evidence. In the next sentence, the Commissioner is not addressing the actual proposal. He is speaking quite generally. Evidence that it is not possible to construct the proposed dwelling on the site does not affect the validity of the Commissioner’s conclusion. In any event, the decision on the previous appeal shows that it is possible to construct a substantial dwelling on the site without excavation. Development consent was not granted in that case because the proposal failed to satisfy provisions in the Development Plan. There is nothing, therefore, which justifies permitting Daleport to lead the survey evidence. The evidence will not have any influence on the result of this appeal.
A View is Taken
At the request of the parties, I took a view of the subject land and parts of the locality. The view took in the locality which had been inspected by the Commissioner on the hearing of the appeal in the Environment Court. Daleport asked that I also inspect other sites in the Crafers area which had not been inspected by the Commissioner. The purpose, it was said, was to show other building sites where excavation had occurred. Although a view is not evidence, it is convenient to apply the principles which apply when an application is made to adduce new evidence on an appeal. The question of excavation was a very live issue on the appeal. That is apparent from the particulars and written statements exchanged before the hearing of the appeal in the Environment Court. The Commissioner referred in his reasons to sites at which he inspected the extent of excavation. These additional sites could have been shown to the Commissioner when he took the view. In addition, there is no evidence as to when the sites were developed or the then state of planning and development controls. More importantly, the question whether excavation is consistent with the objectives in the Development Plan is to be determined by an examination of the relevant provisions of the Development Plan and of the extent of excavation on each site. It is a decision made according to the facts and circumstances of each site and not by reference to what has occurred on other sites. For those reasons, I rejected the application to inspect additional sites. The view was essentially of the subject land and its immediate environs.
An examination of the Commissioner’s reasons shows that he has had regard to the relevant provisions of the Development Plan and has carefully weighed the issues. It is convenient to set out the whole of the Commissioner’s reasons leading to his conclusion. It will be seen that they deal with the extent of excavation and other issues:
24By any measure, the quantity of material to be excavated from the subject land is substantial. A measure of the significance of the quantity of material proposed to be excavated (1,347m3) can be obtained from the Development Regulations, which require development approval, within the Hills Face Zone and a number of zones within the City of Mitcham, for excavation of more than 9m3. While I accept that the Hills Face Zone is an area of particular sensitivity, given its visibility from the Adelaide Plains, the Development Plan for the Adelaide Hills Council area also places emphasis on unobtrusive siting of dwellings, and on the minimisation of cut and fill. To insist, as Mr Burns did, that the proposed excavation was “minor” significantly diminished his credibility as an expert witness capable of an objective assessment of the subject proposal.
25I agree with the opinion, expressed in evidence by Ms Bell, that the proposed excavation would bring the proposal into conflict with those Development Plan provisions directed towards the excavation and filling of land, including Council Wide Principles 8 and 191 and Objectives 226 and 227. That said, do the facts that the proposed dwelling can be sited further from sensitive boundaries to the east and south, will have a lower finished height as a consequence of the proposed excavation, and will, when completed, substantially obscure that excavation, provide a basis upon which a substantial departure from the provisions above can be justified?
26After much deliberation, I have concluded that they do not. The amount of excavation proposed derives directly from the decision of the appellant to adopt a building envelope and access arrangements which simply cannot be accommodated on the existing platform on the subject land. As Ms Bell observed in her evidence (which I accept), a range of design options are available for the construction, on the subject land, of a dwelling of the floor area proposed, without necessitating substantial new excavation. Indeed, no evidence was led to suggest that a substantial dwelling could not be contemplated wholly on the existing platform. To take the view, as Mr Mickan did, that the substantial excavation proposed could be justified if it resulted in unobtrusive siting of the proposed dwelling, would be to set at naught the Development Plan provisions referred to above. The Plan seeks unobtrusive siting and minimal excavation, fill, and interference with natural land form, and while I acknowledge that the provisions of the Development Plan are advisory rather than directive, the scale of the proposed departure from those provisions is such that the end of unobtrusive siting cannot be justified by the means proposed.
27In the course of the view I was shown a number of developments in the locality which evidenced significant excavation undertaken in the course of their construction. None of those developments, in my observation, entailed excavation of the scale proposed in this matter, and, in my view, they do not constitute a basis upon which the subject proposal can be justified.
28The other issues raised by the Appellants, namely the bulk and scale of the proposed dwelling, the potential for overlooking of the property to the east, and the noise and disruption created by the need to remove large quantities of excavated material from the subject land, do not, of themselves, constitute a basis upon which the subject proposal should be rejected. The bulk and scale of the dwelling, while substantial, are not, in my view, so out of keeping with a number of other dwellings in the locality as to bring the proposal into conflict with Zone Principles 2 and 27 and Council Wide Principles 87, 88 and 89 and Objectives 92 and 230. No expert evidence was adduced to challenge the views expressed in evidence by Mr K Knight, an expert in arboriculture and horticulture, that, with minor changes, proposed landscaping would create effective screening of the proposed dwelling from adjoining properties and create a pleasant landscape in harmony with the site’s surroundings. Ms Bell conceded in evidence that proposed screen planting or obscure glazing would address any concerns she had about overlooking of the property to the east, and that imposition of appropriate conditions would address her concerns about the impact of removal of excavated material on the amenity of the locality. However, the extent of excavation proposed is, in my assessment, fatal to the proposal inasmuch as it brings it into conflict with the clear intent of the Development Plan, expressed in Council Wide Principles 8 and 191 and Objectives 226 and 227, to minimise excavation and fill and interference with natural land forms. Any constraints represented by the size of the existing excavation on the subject land and the configuration of the latter are not such as to justify such a substantial departure from the clearly expressed requirements of the Development Plan.
It is clear from these extracts that, contrary to the submission of Mr Sallis, the Commissioner did not focus only on those provisions in the Development Plan relating to excavation. In paragraph 28 of his reasons, he made some findings favourable to the proposal including the finding that the bulk and scale of the dwelling did not, for the reasons he expressed, offend the Development Plan. He also found that the proposed landscaping would provide effective screening of the proposed dwelling from adjoining properties and create a pleasant landscape and that the imposition of appropriate conditions as to screen planting and obscure glazing of windows in the proposed dwelling would address concerns as to the overlooking of a dwelling to the east. These were all findings favourable to Daleport. However, after considering those factors, he concluded that the extent of excavation was fatal to the proposal because it was in such direct conflict with the intent of the Development Plan. In short, the Commissioner has had regard to those factors which favoured approval of the proposed development but, nevertheless, has concluded that the extent of excavation is fatal to the proposal. It is readily apparent that the Commissioner has weighed all factors before reaching this conclusion.
For the reasons which follow, I am entirely satisfied that the Commissioner has carefully weighed all the relevant provisions in the Development Plan and has carefully considered all relevant factors before reaching this conclusion. Although he submitted the Commissioner had failed to have regard to all relevant provisions of the Development Plan, Mr Sallis was not able to point to any provision which the Commissioner had overlooked, either generally or specifically in relation to excavation of sites. It is apparent from the extract quoted above that the Commissioner has had regard to all relevant provisions.
Mr Sallis submitted that the Commissioner had erred in applying the relevant provisions of the Development Plan to the excavation. He was not able however, to show, how the Commissioner had erred. At one stage he submitted that the Commissioner had failed to balance the relevant factors. After reviewing the Commissioner’s reasons, I am satisfied that he had regard to all of the relevant provisions and that he has weighed them appropriately. The Development Plan places a great deal of emphasis upon keeping excavation to a minimum. The proposals for the north-west impinge most severely on the intent of the Development Plan. There is no ground on which to interfere with the Commissioner’s decision.
Mr Sallis submitted that the Commissioner had misunderstood the effect of the evidence as to excavation. He complained that the Commissioner had had regard only to the amount of excavation to be removed and had failed to note other provisions of the Development Plan relating to excavation. This argument must fail. It is readily apparent the Commissioner has had regard to both quantitative and qualitative provisions in paragraphs 24 to 26 of his reasons and in his conclusion in paragraph 28.
Mr Sallis relied on the fact that much of the excavation consisted of removing filling which had been introduced to create the platform. However, that is but one aspect only of the excavation. The excavation of greater moment is the excavation of the slope in the north-west of the site which will be greater than in the initial proposal and will be relatively substantial. Contrary to the submission of Mr Sallis, it is no answer that the excavation will be screened by the proposed dwelling. The concerns of the Development Plan are not only with the visual aspect of excavation but their interference with natural land forms.
In the result, the Commissioner has made a planning assessment based on the relevant provisions of the Development Plan and based on an assessment of the planning merits of the proposal. This Court has repeatedly stated that it will not interfere with a decision based on an assessment of the planning merits of the proposal unless the Environment Court has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or circumstances are in some other respect quite exceptional: Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165 at 173-174; Leimal Pty Ltd v Adelaide City Council (2007) 246 LSJS 467. As the Commissioner’s decision was essentially an assessment of the planning merits, there is no basis for this Court to interfere with it.
For these reasons the appeal must be dismissed.
An Unsuitable Development
The Commissioner’s conclusion that the bulk and scale of the building was not so out of keeping with other dwellings in the locality as to bring it into conflict with the relevant provision of the Development Plan was not an issue which was canvassed on the appeal. However, it is necessary to comment on it. The fact that there are other substantial dwellings in the locality is not itself a reason for concluding that the bulk and scale of this proposed dwelling makes it suitable for the site especially as most of those substantial dwellings are located on large allotments. In making that finding, the Commissioner failed to have regard to what was said in Moyes v J & L Developments Pty Ltd at [47] and [48] where it was emphasised that each development application is to be examined and assessed on its own merit.
When determining whether a building is of a bulk and scale disproportionate to the site, it is necessary to have regard to the site itself, its dimensions, topography and relationship with neighbouring development. This is quite a small site when compared with other sites in the locality on which substantial dwellings have been constructed. It has a topography which creates particular difficulty. Care must also be taken to avoid creating lack of privacy and overshadowing of adjoining dwellings. It is not a site which is suitable for a large dwelling. This is a sensitive site. It requires careful and sensitive design. That is what Objective 33 requires. All of these issues were identified and canvassed in Moyes v J & L Developments Pty Ltd and in the opinion of Ms Bell. The Commissioner has failed to have regard to them. This is a further reason why the proposed development should not receive development consent.
For all of these reasons, I dismiss the appeal.
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