EVAN & Helen Toyias, Graham & Helen SPEARS, George & Toula Dalkos and Vicki Costi v Alan Sheppard Homes Pty Ltd and Corporation of the City of Burnside No. SCGRG 96/2031 Judgment No. 6160 Number of Pages 10 Local..

[1997] SASC 6160

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, J

Local government - building control - semi-detached dwelling - zoning permitting a range of dwelling types - locality of high residential amenity - first intrusion of development other than detached dwelling - application refused by Council - development consent granted by Environmental Resources and Development Court - meaning of Development Plan - whether Court erred in construction of Plan. Development Act 1993 s22,s23,s25, referred to. Pitt v Environment Resources and Development Court (1995) 66 SASR 274 ; Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165 ; Bartusek v City of Mitcham [1996] EDLR 242 ; Nadebaum v City of Mitcham [1995] EDLR 587 ; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 , applied.

ADELAIDE, 13 December 1996 (hearing), 16 May 1997 (decision)

#DATE 16:5:1997

Appellants:

Counsel: Mr B R Hayes QC

Solicitors: Andersons

Respondent Alan Sheppard Homes Pty Ltd:

No Attendance

Respondent Corporation of the City of Burnside:

No Attendance

Order: appeal dismissed.

DEBELLE J

1. This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court. The respondent Alan Sheppard Homes Pty Ltd ("the developer") had applied to the Corporation of the City of Burnside ("the Council") to erect a pair of semi-detached dwellings on land at Webb Avenue, Burnside. A group of residents living near the proposed development made representations to the Council opposing the development application. For convenience I will call them "the objectors". They had not received notice of the application pursuant to s38 of the Development Act. Instead, the Council had written to them informing them of the development application and seeking their views. The Council refused the development application.

2. By notice dated 21 June 1996, the developer appealed against the Council's decision to the Environment Resources and Development Court. Seven of the objectors were, on their application joined as parties pursuant to s17 of the Environment Resources and Development Court Act. Section 17 is in terms wide enough to permit the joinder of persons who do not receive notice of a development application pursuant to s38 of the Development Act: Pitt v Environment Resources and Development Court (1995) 66 SASR 274. The developer was successful in its appeal. From that decision the seven objectors have appealed to this court. All seven objectors reside in Webb Avenue, Burnside.

3. The respondents to the appeal were both the developer and the Council. Neither appeared at the hearing. Both indicated that they would abide the order of the Court.

The Development Application

4. The site of the proposed development is a conventional rectangular shaped residential allotment measuring some 18.3 metres wide with a depth of some 39.6 metres. The site has an area of 724.6 square metres. A substantial single storey detached dwelling is at present erected on the land. The developer intends to clear the site and erect a single storey semi-detached dwelling. The two dwellings will be divided by two garages, one for each dwelling. Access to the garages will be by means of a single cross-over.

5. The site of the proposed development and its locality are located in an area zoned Residential R450. The Objective for this zone is stated in these terms: "A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and street scape impact"

6. It will be immediately noticed that the Objective expressly recognises that the zone may include a range of types of dwelling provided they are compatible with existing dwellings in terms of scale and street-scape impact. Consistently with that Objective, the Principles of Development Control for this zone prescribe a minimum site area for four different types of dwelling, namely, detached dwellings, semi-detached dwellings, residential flat buildings and row dwellings. The minimum area of the site for a semi-detached dwelling is 350 square metres with a minimum frontage of 8.25 metres. The proposed development clearly complies with these minimum requirements. Another relevant principle is Principle 6. It is unnecessary to set out its terms. It was common ground that the proposal complied with the standards in Principle 6 and other standards prescribed in the Principles of Development Control. The essential dispute concerned the question whether the proposed development should be permitted in this residential locality.

The Character of Webb Avenue

7. In the Environment Resources and Development Court it was also common ground that the relevant locality was largely confined to Webb Avenue which is a short street containing eleven houses. The locality almost entirely consists of detached dwellings on individual allotments. A pair of semi-detached dwellings is located nearby at 21-23 Allinga Street. The dwellings in Webb Avenue include five "Tudor style" dwellings constructed in the 1920's and 1930's and a variety of other housing styles. The amenity of the locality is high. Webb Avenue is characterised by grass verges which are four metres wide, well established street trees and well maintained front gardens incorporating mature plantings of trees and shrubs. The street has an open landscape character which in large part is a consequence of the fact that the fencing of front boundaries is low or open.

8. The dwellings on the northern side of Webb Avenue are set back eleven to fifteen metres from the street boundary. The set-back of dwellings on the southern side of the boundary ranges between eight metres and eleven metres. The proposed semi-detached dwelling is on the southern side of Webb Avenue and will be set back eight metres. There are some "Tudor style" elements evident in the proposed development.

The Grounds of Appeal

9. The ultimate issue on this appeal was whether the proposed development should be permitted in this residential locality. That in turn involved another issue, namely, whether the Development Plan permitted a residential building of this kind in a residential locality with a high amenity. It was contended that the Environment Resources and Development Court had erred in construing the Objectives and Principles of Development Control in the Development Plan for the City of Burnside.

10. Although the notice of appeal listed several grounds going to the planning merits of the proposed development, these were not pursued at the hearing of the appeal. The decision not to pursue them was properly made. This court has repeatedly stated that it will not lightly interfere with the determination of a specialist planning tribunal on issues involving an exercise of planning judgment. The court will interfere with a decision of the Environment Resources and Development Court upon essentially planning issues in exceptional cases only, and where the court has made an identifiable and egregious blunder, a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional: Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165, 173 and the cases there cited.

11. Mr Hayes QC, who appeared for the appellants, submitted that the Commissioner had concluded that all residential localities within Burnside were suitable for redevelopment notwithstanding that they had a strong established residential amenity. In consequence, he contended, the Commissioner had failed to address the correct question, namely, is this a locality within the zone which ought to be developed to a higher density of residential development and this error, he said, vitiated the decision. In the reasons for his decision, the Commissioner examined the provisions in the Development Plan relating to residential zones in the Council area. He concluded that the effect of those provisions is to create the potential for the establishment of all forms of residential development in those zones. He expressed his conclusions in these terms: "The effect of the residential zoning provisions for Burnside is, as I read them, to create the potential for the establishment of all forms of residential development in at least the R350, R450, R550, and R625 zones, subject to:(1) compliance with a number of quantitative standards prescribing minimum site areas and widths, maximum site coverage and minimum front and side boundary setbacks; and(2) compliance with the relevant qualitative provisions, including those seeking to ensure that new development is compatible with the prevailing character and amenity of the locality within which that development is proposed.

Accordingly, the only circumstances in which any locality in Burnside is not, at least in conceptual terms, susceptible to residential re-development to higher densities are where either:

(i) that locality falls within the Historic Conservation Zone, the Objectives for which include "the retention of buildings ... that contribute positively to the established character of [the] area", or (ii) the site areas or widths prescribed for forms of residential development other than detached dwellings effectively preclude the further division of existing allotments in that particular locality.

Where neither of the above qualifications applies, and where all the relevant quantitative criteria are met, it seems to me that a key determinant of the acceptability or otherwise of higher-density residential development proposals is the extent to which they are compatible, in design terms, with the prevailing character of the locality within which they are proposed. It follows that, with the exception of the Historic Conservation Zone, there are no localities within the Residential Zones in the City of Burnside which are, prima facie, unsuitable for residential re-development to higher densities as a consequence of their having a strong established character.

When a proposal within a residential zone meets the relevant quantitative standards, its acceptability (or otherwise) will then largely depend on its design, the latter term encompassing factors such as materials, height and massing, architectural detailing, access and parking arrangements, overlooking and overshadowing, orientation and siting."

12. Mr Hayes QC directed the main thrust of his attack at the underlined words as being an erroneous interpretation of the Development Plan. Mr Hayes sought to fortify his attack by contending that the Commissioner should have had regard to the Planning Strategy when interpreting the Development Plan.

The Planning Strategy

13. It is convenient to deal first with the contention in relation to the Planning Strategy.

14. The Planning Strategy is a document prepared in compliance with s22 of the Development Act. It is expressed to be a Planning Strategy for development within the State: s22(2). It may incorporate, among other things, plans, policy statements, proposals and other material designed to facilitate what the Development Act is pleased to call "strategic planning and co-ordinated action on a State-wide, regional or local level": s22(3). It expressed in very general terms. As the preface to the strategy indicates, it is a policy document intended to provide guidelines for the future development of the State. It is under active review and is being modified to reflect the policies of the current government. The place of the Planning Strategy in the context of planning schemes can be judged by the fact that s23 of the Act provides that the Development Plan should seek to promote the provisions of the Planning Strategy and that s25(4) requires a Plan Amendment Report to assess the extent to which a proposed amendment to the Development Plan accords among other things,with the Planning Strategy.

15. As a matter of principle, I do not think that the Planning Strategy can or should assist in interpreting the Development Plan. This conclusion is re-inforced by s22(9) of the Development Act. It provides: "The Planning Strategy is not to be taken into account for the purposes of any application, assessment or decision under Part 4 (other than Division 2 of that Part)"

16. Part 4 of the Development Act provides for control of development and includes s33 and s35 which provide for the matters against which a development application must be assessed. Mr Hayes submitted that, although reference could not be made to the Planning Strategy for the purpose of assessing this development application, it was relevant to examine the Strategy for the purpose of understanding the relevant provisions in the Development Plan. He submitted that, had the Commissioner had regard to the Strategy, he might not have erred in his interpretation of the Development Plan.

17. The argument is on its face attractive but closer analysis shows that the proscription in s22(9) prohibits even this limited use of the Planning Strategy. Section 22(9) is expressed in very wide terms. It prohibits the Strategy being taken into account not only for the purpose of any assessment of a development application but also for the purposes of any application or any decision under Part 4. Not infrequently, planning authorities must determine the true meaning and effect of the Development Plan. Section 22(9) is intended, among other things, to prohibit the use of the Planning Strategy for that purpose. There are several sound reasons for that prohibition. First, although the Development Plan and any amendment to the Development Plan must accord with the Planning Strategy, the Planning Strategy is expressed in such general terms that its capacity to assist in determining the true meaning of the Development Plan is quite limited. The Development Plan is the detailed fleshing out of the policies in the Strategy. Those detailed provisions might not always be entirely consistent with the Strategy. Secondly, the capacity of the Strategy to assist in interpreting the Development Plan must be qualified by the fact that it might alter in light of a change in government policy. The policy change might not be reflected in an amendment of the Development Plan. Thirdly, notwithstanding that s23(3) requires that a Development Plan should seek to promote the provisions of the Strategy and s25(4) requires the Minister to assess the extent to which an amendment to a Development Plan accords with it, the fact that a Development Plan or an amendment to a Development Plan does not promote the policies of the Planning Strategy or does not accord with them is not necessarily a ground for invalidating the Development Plan or refusing to amend a Development Plan. Finally, to permit reference to the Planning Strategy for the purpose of interpreting the Development Plan would give rise to difficulty in cases where there was an inconsistency between a provision of the Development Plan and a provision in the Strategy. Which provision should prevail? For these reasons s22(9) prohibits the use of the Planning Strategy for the purpose of interpreting an ambiguity in the Development Plan.

18. This case provides a good example of the dangers of permitting reference to the Strategy. Mr Hayes sought to rely on Sections 3.4 and 8 in the Strategy. Section 3.4 recommends, among other things, the re-development of surplus and under-utilised government land to increase the level, choice and affordability of housing, the re-development and upgrading of existing housing areas, and encouraging local government to revitalise existing living areas. He submitted that the Planning Strategy contemplated an increase in the density of housing only in under-utilised or in run-down areas. It did not apply across the board in all residential areas in Burnside. The latter part of that submission is correct, not because of the terms of the Planning Strategy, but because, for the reasons to be stated, that policy is expressed in the Development Plan. Furthermore, neither the Strategy nor the Development Plan limits an increase in housing density to under-utilised or run-down areas.

The Burnside Residential Zones

19. The provisions in the Development Plan for the City of Burnside which regulate residential development are to be found in provisions which create six residential zones as well as an Historic Conservation Zone. The Historic Conservation Zone relates to four areas which include residential development. One of the residential zones is a Residential 3E zone. It relates to a discrete area and is not relevant for present purposes. Similarly, it is not necessary for present purposes to refer to the provisions in the Historic Conservation Zone.

20. The remaining five residential zones represent a hierarchy of zones which is based essentially, though not exclusively, on a scale of minimum allotment areas for different types of dwellings. These zones are called R350 (the most dense), R450, R550, R625 and R750 (the least dense zone). The numbers describing each zone correspond to the area prescribed as the minimum allotment area for detached dwellings in each zone.

21. There is a single Objective for each zone. These Objectives are expressed in similar but not identical terms. The effect of the Objectives for the R350, R450 and R550 zones is that each zone should accommodate a range of types of dwellings which are compatible with the existing dwellings in terms of space and street-scape. The Objective for the Residential R625 Zone is as follows: "A zone accommodating residential building of a form and scale compatible with the predominant character of the zone, as created by substantial allotment, widths, garden areas and front and side set-backs".

22. This Objective is similar to the Objectives for the three zones already mentioned but it describes the nature of the residential character of the zone in a little more detail. Although the Objective does not refer to a range of dwelling types, the Principles of Development Control for this zone prescribe minimum areas for detached dwellings, semi-detached dwellings, residential flat buildings and row dwellings - a reasonably wide spectrum of dwelling types. The Objective for the Residential R750 Zone also emphasises the intention that residential buildings should be compatible with the character of the zone which is again described. It is expressed in these terms: "A zone accommodating residential buildings of a form and scale compatible with the predominant character of the zone, created by large multi-level dwellings on large steep allotments".

23. Again, there is no reference to a range of dwelling types. However, the Principles of Development Control for that zone prescribe minimum areas for detached dwellings, semi-detached dwellings and a group of dwellings. Thus, three types of dwellings are capable of being permitted in this zone. The Principles for this zone proscribe residential flat buildings and row dwellings by designating them a non-complying use.

24. It can be seen, therefore, that each of these five Residential Zones allows for a range of dwelling types, the range being more limited in the R750 zone. If there were no other relevant provision in the Development Plan, there would be strong support for the view expressed by the Commissioner.

25. The Development Plan expressly provides that the Objectives and Principles of Development Control for this Residential R450 Zone and the other residential zones are additional to those expressed for the whole of the Council area. Thus, in addition to the Objectives for each zone, it is necessary to have regard also to other Objectives which apply generally throughout the area of the City of Burnside: Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161. They are Objectives 6 and 7 of the Objectives for Metropolitan Adelaide and Objectives 5 and 11 of the general Objectives in the Development Plan for Burnside. Objectives 6 and 7 for Metropolitan Adelaide are as follows: "Objective 6: A compact metropolitan area

This objective may be achieved through selective development of infill housing, redevelopment and refurbishment of existing housing, and use of vacant and unfertilised land, with the aim of reducing the social, environmental and economic costs of urban development, and maximising 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 bush fire hazard.

Objective 7: A variety and choice of dwelling types to meet the needs and preferences of all sections of the community

Residential development within metropolitan Adelaide should be based on a flexible approach to the provision of a wide range of dwelling types.

26. These Objectives express a policy of urban consolidation with which is coupled a policy that a range of dwelling types should be provided. The policy of urban consolidation does not operate in an unqualified way. One important qualification is that it is necessary also to recognise "areas of particular character or amenity". Thus, due regard must be had to the residential character and amenity of a locality when considering whether it appropriate to permit a particular kind of development. See generally Bartusek v City of Mitcham [1996] EDLR 242 at 248. The effect of that qualification is reinforced by Objectives 5 and 11 of the general Objectives in the Development Plan for the City of Burnside. Objective 5 is under the heading "Development Generally". It provides: "No adverse effect on the amenity or the predominant character of the area in which development is undertaken".

27. Objective 11 is under the heading "Dwellings". It provides: "Residential development which:(a) promotes the efficient use of urban infrastructure and services; (b) increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council areas; (c) provides dwellings of a high standard of design and siting to ensure a high level of amenity, privacy and security for their occupants and neighbours; (d) take advantage of solar energy; (e) promotes and retains community identity.

28. There can be little doubt that the overall effect of all of these Objectives is that there is an intention to increase the density of dwellings but only in appropriate areas. Objectives 5 and 11 clearly indicate that the policy of increasing residential density is not to apply generally throughout the residential zones (some of which are quite large in Burnside) but only in appropriate locations. The Objectives applying to residential zones are not compatible unless the policy of urban consolidation, as expressed in the policy of an increased density of dwellings, is to apply only in appropriate areas.

29. What then is an appropriate location? There can be no single answer to that question. Some localities will be under-utilised or run-down and are obviously appropriate for urban consolidation. But those are not the only relevant factors. There is a range of factors which will result in a planning judgment that a locality is appropriate for denser residential development. In addition, some localities will be appropriate for some forms of increased density of residential dwellings but not for others. The combined effect of Objectives 5 and 11 is to require an examination to be undertaken of the locality in which the development is proposed and a determination to be made whether the proposed development would adversely affect that amenity. It is not difficult to call to mind many residential areas containing detached dwellings with a high residential amenity which would be adversely affected by, say, one or more residential flat buildings or by a variety of other dwelling types. To state that fact is not, however, to assert that there will not be occasions where an appropriately designed residential building other than a detached dwelling might be introduced into an area with a high residential amenity without adversely affecting the amenity of that area. Semi-detached dwellings are an example. There are many residential areas in metropolitan Adelaide where an appropriately designed semi-detached dwelling is wholly compatible with surrounding detached dwellings and the overall residential amenity of the area.

30. As already mentioned, one important issue in this appeal is whether a residential locality, which consists only of detached dwellings and has a high residential amenity, could be considered to be an appropriate locality for a denser form of residential development. The appellants say that is not the intention of the Development Plan. However, for the reasons which follow, it is the clear intent of the Development Plan that forms of denser residential development might be permitted in appropriate localities and in appropriate circumstances.

31. Objective 11 states that an increase in density of dwellings should only occur in appropriate areas and in a manner which retains the essential and varying elements of the character of the Council area. Some of those essential elements of the character of Burnside are obviously residential localities with a high amenity. Objective 11 does not specify the criteria by which to determine what is an appropriate area. There is no reason in principle why on an appropriate site a suitable form of residential building other than a detached dwelling should not be permitted in a locality otherwise consisting of detached dwellings. Much will of course depend on the site, the nature of the proposed development and the character and amenity of the residential locality.

32. Support for that conclusion is to be found both in what is provided in the Development Plan and what is not. First, the Residential R750 zone apart, nowhere in the Development Plan for Burnside is there any provision which prohibits denser residential development in any residential zone. That is a most important fact. This form of planning control for residential areas is a significant departure from that which applied in Burnside under the planning regulations made under the Planning and Development Act, 1966-1967, many of which were continued in force as provisions of the Planning Act 1982. Broadly speaking those planning controls created zones which permitted certain types of residential development. Thus, again speaking broadly, Residential 1 zones accommodated detached dwellings only but prohibited other forms of residential development as a non-complying use. Residential 2 zones permitted detached, semi-detached and row dwellings. Residential 3 zones permitted all of the types of dwellings allowed in Residential 2 zones as well as residential flat buildings and other types of dwellings. By contrast, the present provisions of the Development Plan for Burnside expressly allow, for example, the intrusion into a locality of detached dwellings of other forms of dwelling provided that it is an appropriate locality to accommodate that type of dwelling. The certainty of the controls which hitherto existed in at least Residential 1 zones has been replaced by a system which ultimately gives a planning authority, be it the Council, the Development Assessment Commission or the Environment Resources and Development Court, a discretion to approve the intrusion. The absence of any prohibition barring other forms of residential development tells strongly against the appellant's contention. Had the Plan intended that some areas comprising only detached dwellings should be inviolate from an intrusion of other forms of residential development, it would have been only too easy to have so provided. The fact that the provisions of the Residential R750 Zone prohibit two forms of denser development emphasises that conclusion.

33. Secondly, in distinct contrast to planning controls which hitherto operated at least in most Residential 1 zones, the Objectives for the R350, R450 and R550 zones expressly state that the zone is intended to accommodate a range of dwelling types. There is, therefore, nothing which excludes any residential locality in the Burnside Council area which consists of detached dwellings and has a high residential amenity from being an appropriate area in which to construct denser forms of residential development.

34. When considering an application for a form of residential building which is not identical to that which already exist in a residential area, it will be necessary to assess whether the locality is suitable for the proposed building. That assessment will of necessity involve an assessment of the character and amenity of the locality, an assessment of the nature, design and effects in planning terms of the proposed development, and an assessment of the impact of the proposed development on the character and amenity of the locality. It is not possible to place each of these tasks into discrete compartments. There is obvious interaction between them. In the ultimate result, an exercise in planning judgment is required. In making that planning judgment, the fact that the proposed development will constitute a first intrusion of that type of development into the locality is not necessarily a barrier to development consent. I respectfully adopt the observations of Judge Bowering in Nadebaum v City of Mitcham [1995] EDLR 587 at 593: "Where a proposed development is of a type recognised by the objective of the zone as falling within one of the primary purposes of the zone, the fact that its approval will constitute a first intrusion of that type of development into the locality does not, of itself, constitute a planning justification for refusal. If, however, the proposal fails, in a material respect, to meet relevant provisions of the Development Plan, the fact that it may constitute a precedent within its locality is a matter to which due weight should be given."

35. In other words, the process of urban consolidation allows for redevelopment of existing residential sites or residential areas with a high residential amenity provided that the site and the proposed development are suitable and the development will not adversely affect the character and amenity of the locality.

36. In other words, the Development Plan for Burnside does not, contemplate that a mere compliance with the quantitative standards will necessarily permit the intrusion of a denser form of residential development into a residential locality comprising detached dwellings only. As the Commissioner himself, emphasised in the course of his reasons, in a number of different ways the Plan repeatedly emphasises the need to have regard to the character and amenity of the locality. Metropolitan Adelaide Objective 6 is but on instance. Objective 11 and Principle 6 for this Residential R450 zone is one others. In addition, it is a fundamental precept of planning principle that it is necessary to have regard to the character and amenity of the area when considering a development which is the first intrusion of a development different already existing in the area. The Commissioner had regard to these questions which he characterised these as qualitative standards.

37. This analysis of the Development Plan shows that the substance of the Commissioner's reasoning is correct. It might have been better had he expressly mentioned that a determination must be made whether the locality is appropriate for the proposed development. But that proposition is implicit in the Commissioner's reasoning. He has repeatedly used expressions to the effect that the new development must be compatible with the prevailing character and amenity of the locality. I have referred to the fact that the determination whether the locality is appropriate for the proposed development involves a planning judgment based on an assessment of the character and amenity of the locality, of the nature design and effects of the proposed development, and the impact of the development upon the character of amenity of the locality. When his reasons are read as a whole, that is the approach the Commissioner has adopted.

38. In the extract quoted from his reasons, the Commissioner said that, the Historic Conservation Zone apart, all residential localities in Burnside are susceptible to residential development of higher density where the quantitative standards have been of the Development Plan have been satisfied. The key determinant, as he called it, as to whether the proposed development should be permitted is the extent to which it is "compatible, in design terms, with the prevailing character of the locality". Mr Hayes QC attacked this last sentence as expressing a conclusion that all residential localities within the Burnside Council area were, by reason of the zoning provision, suitable for redevelopment. I do not agree. That is to read too much into the sentence. In addition, the context of that sentence belies the submission. Throughout his reasons, the Commissioner has emphasised the fact that the nature and effect of provisions in the Development Plan relating to development in residential areas had been altered. The Commissioner is correct in stating that, in conceptual terms, residential localities in Burnside are "susceptible to higher density". The sentence which Mr Hayes attacks expresses the same view. The Commissioner's use of the word "susceptible" does not imply that the locality is necessarily appropriate for the type of development proposed. It is merely to state that there is no prohibition against it if it satisfies quantitative standards. As already noted, there is no residential zone in the Burnside area other than the R750 zone which prohibits an increase in density of residential redevelopment and even the R750 zone acknowledges the possibility of semi-detached dwelling and group dwellings.

39. Towards the end of his reasons, the Commissioner said: " Clearly, when the zoning of a locality contemplates forms of development additional to those already existing in that locality, the inevitability of some change to the appearance of that locality has to be recognised. Those provisions of the Development Plan which seek to ensure that new development harmonises with the prevailing character of that locality cannot, in my view, be interpreted so narrowly as to obviate any change. They can, however, be called in aid to ensure that the key determinants of the prevailing character of a locality are maintained".

40. I do not understand the Commissioner to be saying that it is inevitable that there will be change in every residential area in the Council area. Instead, he is again pointing out that there is no prohibition against change. His conclusion that a central issue is whether the character and amenity of the area are maintained serves to point out that he has had regard to the question whether the locality is appropriate for this development.

41. Thus, the appellants have not demonstrated that the Commissioner has erred in his interpretation of the relevant provisions of the Development Plan. The appellants do not rely on those grounds in the Notice of Appeal which raise planning issues. There is no error of principle which vitiates this consent. It follows that this appeal should be dismissed.