Gibson v Adelaide Hills Council
[2005] SASC 467
•12 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
GIBSON v ADELAIDE HILLS COUNCIL
Judgment of The Honourable Justice Bleby
12 December 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - REFUSAL AND REASONS FOR REFUSAL
Appeal from Environment, Resources and Development Court - Development application to divide land into two equal sized residential allotments - Further application to erect a single-storey dwelling on each allotment - Refusal by Council - Dismissal of appeal by Commissioner - Whether Commissioner erred in proper interpretation and application of Development Plan - Whether proposal was for "low density" residential development - Whether development was in keeping with "village character" of township - Role of precedent in planning decisions - Whether Commissioner erred in basing decision on likely cumulative effect of other applications - Appeal allowed - Provisional development consent granted - Environment, Resources and Development Court to determine appropriate conditions for consent to dwellings.
Adelaide Hills Council Development Plan 2005, referred to.
City of Charles Sturt v Hatch [1999] SASC 523, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"low density residential development", "village character"
GIBSON v ADELAIDE HILLS COUNCIL
[2005] SASC 467Land and Valuation Division
BLEBY J:
Introduction
This is an appeal from the decision of a Commissioner of the Environment, Resources and Development Court in which the Commissioner confirmed decisions of the respondent Council to refuse two development applications by the appellant. The first one (No 473/D63/2004) sought provisional Development Plan and land division consent for a land division creating one additional allotment. The second one (No 473/214/2005) sought provisional Development Plan consent for two detached dwellings on the two proposed allotments to be created under the first application.
The land sought to be subdivided is located at 13 Elizabeth Street, Oakbank. Except for the presence of one shed, it is presently vacant land. If those proposals go ahead, the shed is likely to be removed. For the purposes of these reasons, although it is not quite accurate, I will assume that Elizabeth Street runs in a north-south direction and that the main road running through the township of Oakbank, the Onkaparinga Valley Road, travels in an east-west direction. The land in question is on the western side of Elizabeth Street one block north of the Onkaparinga Valley Road. It has a frontage of 26.82 m to Elizabeth Street with a depth of 32 m. Its area is 858 sq m. It is relatively level with a slight fall from south to north towards the Onkaparinga River.
The proposal contained in the first application was to divide the land into two equal sized allotments for residential use, both having a frontage of 13.41 m to Elizabeth Street and a depth of 32 m. The approximate area of each allotment would be 429 sq m.
The second application proposed the erection of one single-storey detached dwelling on each of the allotments. Both dwellings were similar with an open sided single vehicle carport to one side of the dwelling. The Commissioner described their details as follows:
The dwellings have an identical floor plan consisting of 3 bedrooms, a bathroom/toilet/laundry and an open-plan kitchen/dining/living room and the living areas open onto the rear private open space. A bull nose verandah, 1.2 metres wide, extends across the width of each dwelling facing Elizabeth Street. The internal floor area of each dwelling is approximately 113 square metres, the carport 18 square metres and the front verandah 9 square metres providing a total building covering some 140 square metres. Site coverage is in the order of 32.6%. The face of both dwellings are to be set back 5.0 metres from Elizabeth Street and the verandahs to 3.8 metres, while both carports are set back 8.0 metres from Elizabeth Street. Setbacks to side boundaries are 1.2 and 1.8 metres and from rear boundaries approximately 12 metres in each case. The platforms for each dwelling will be formed at differing levels, estimated by Mr Burns to have a 0.5 metre difference one to the other.
…
External materials comprise brick walling, “Colorbond” roof sheeting with a pitch at 30o and aluminium window frames but no colours were nominated. New 1.8 metre “Colorbond” fencing is proposed to both sides and presumably to internal and rear boundaries.
The two proposals are not linked, although the second proposal is obviously dependent upon the first proposal being approved.
The Council’s reasons for refusing the first application were:
1.The proposed land division does not comply with Objective 1 of the Oakbank Village Policy Area within the Country Township (Balhannah and Oakbank) Zone which calls for “... low density residential use ...” away from the Main Street. The proposed allotments of 429 square metres are not considered to be low density.
2.The proposed land division does not comply with Council Wide Principle of Development Control 44 which requires that land division within country townships should be greater than 1,000 square metres and have a minimum road frontage of 25 metres.
The reasons for refusing the second application were as follows:
1.The proposed development does not comply with Objectives 1 and 2 and Principle 5 of the Oakbank Village Policy Area as it is not a low-density residential use and will adversely affect the village character of the area.
2.The proposed development does not comply with Council-wide Objective 4 and Principle 77 as it will adversely affect the township character of Oakbank.
It is to be noted that, in relation to the first application involving the land division, there is no suggestion by the Council of that proposal being inconsistent with Objective 2 and Principle 5 of the Oakbank Village Policy Area referred to in the Development Plan, even though the only conceivable use for the two proposed allotments could be residential purposes. It will be necessary to return to those objectives and principles and a number of others contained in the Adelaide Hills Council Development Plan.
Before turning to the decision under appeal it is necessary to explain in more detail the planning regime contained in the Council’s Development Plan and the nature of the Oakbank township and how it is treated in the Development Plan.
The Development Plan
There are three levels of prescriptions in the Development Plan which have some bearing on development applications in the township of Oakbank. First, the Development Plan contains a number of council wide objectives grouped under appropriate headings, and after each group there follows a set of relevant principles in amplification of that group of objectives. These apply throughout the Council area.
Secondly, there is a Country Township (Balhannah and Oakbank) Zone. This zone covers two areas comprising the townships of Balhannah and Oakbank respectively. For this zone there are a number of particular objectives with only one principle, which is not relevant for present purposes.
The third level comprises a series of policy areas within the zone. Within the Balhannah township there are three policy areas. Within the Oakbank township there are two. For each of these policy areas the plan specifies a number of further objectives and a set of principles of development control.
The plan must obviously be read as a whole. The application of the council wide objectives and principles to the Country Township (Balhannah and Oakbank) Zone will be determined to some extent by the zone objectives, and the zone objectives will be applied in each policy area in accordance with the objectives and principles applicable to that policy area.
The Oakbank township
The Oakbank township comprises two policy areas, namely the Oakbank Village Policy Area and the Oakbank West Policy Area. The Oakbank Village Policy Area comprises roughly equal areas north and south of the Onkaparinga Valley Road. The Oakbank West Policy Area is a smaller subdivision to the west and south of the Oakbank Village Policy Area but adjoining it. Besides a few properties with a frontage to the Onkaparinga Valley Road, it comprises allotments served by a single cul-de-sac known as Nightingale Court, together with four adjoining allotments served by Pike Street, one of the streets in the Oakbank Village Policy Area.
Because the “village character” of Oakbank assumes some importance in this case, it is necessary to describe in a little more detail the layout of the township. The evidence suggests that the township consists of three parts or areas, each with a different character but which together lend their character to the township. First, there is the Onkaparinga Valley Road, the main street of the township, and the allotments and associated residential and non‑residential development with a direct frontage to Onkaparinga Valley Road.
The second distinct part comprises the original township allotments and associated development to the north and south of Onkaparinga Valley Road. These allotments were formed probably in the middle of the 19th Century. Although some of the maps before the Commissioner use different street names, I will use the names referred to in the report of Mr Barnes, the planner for the Council. This group of allotments comprises allotments served by Oakwood Road, Elizabeth Street and John Street to the north of Onkaparinga Valley Road and by Smith Street, Elizabeth Street, John Street and the eastern and northern side of Pike Street to the south of Onkaparinga Valley Road. All those streets travel in a north-south direction except for portion of Elizabeth Street which travels east to join Oakwood Road and Pike Street which also forms the southern road boundary of the township at which the other streets south of Onkaparinga Valley Road terminate. The streets I have mentioned form a rectangular grid on either side of Onkaparinga Valley Road. Many of the allotments in this area are of similar shape and size to the subject land, but in some parts of John Street and Elizabeth Street it is clear that some of the original almost square allotments have been divided in two in a manner similar to that proposed by the first application. The subject land falls within this part of the township. I will, for convenience, call this part of the township and the adjoining allotments which front Onkaparinga Valley Road “the original village area”.
The third distinct part of the township comprises more recently divided residential areas. To the north and west of the original township, but adjoining it, are more recent subdivisions served by Oak Drive, Maple Court, Elm Drive and Birch Street. However, this third part also comprises the whole of the Oakbank West Policy Area described above.
It is from the original village area described above that the township derives a significant part of its village character. Mr Burns, the planner called for the appellant, described the area in these terms:
The original township allotments are characterised by traditional and more recent building styles, mature landscaping which is usually visible from the street, and generally buildings which are located on or close to the street frontage. The character is also influenced by narrow roads – Elizabeth Street and nearby John Street having road reserve widths in the order of 9 metres, which helps to impart a country lane feel. (This area) also contains smaller allotments which have been the subject of recent land divisions, and with dwellings subsequently built upon them which in my opinion are well designed and sited relative to their surrounding and which still exhibit a low-density, residential character.
By contrast, those parts of the township comprising the third part that I have described have a much more urban appearance typical of a modern suburban subdivision, with cul-de-sacs, houses reasonably well set back from the road boundary and many with no fences in front of the house at all, with appropriate modern landscaping. In that part of the third area comprising the Onkaparinga West Policy Area, the allotments are described in the Development Plan as for “rural residential purposes on relatively large allotments and with intensive landscaping”.[1] The requirement of Principle 3 for this area is that average allotment sizes exceed 0.5 ha, with no allotment being less than 0.2 ha in area.
[1] Objective 1.
Thus, within the township there are some quite varied influences, and while, as will be seen, there are many aspects which go to make up a “village character”, the dominating influence in this regard is to be found in the original village area and its narrow straight streets.
Relevant provisions of the Development Plan
With that description of the township in mind, it is necessary to refer to the relevant objectives and principles so far as they affect these applications. The objectives for the Oakbank Village Policy Area are:
Objective 1: The location of retail, commercial and community facilities along the Main Street; the remainder of the area developed for low density residential use, with the possible exception of some industrial development located near the Railway Station.
Objective 2: Preservation of the village character of the main street and other streets.
Principles 5 and 6 of the Principles of Development Control for the policy area provide:
5.The siting and design of any new building, or any alterations to existing buildings, should be in keeping with the existing village character.
6.Buildings should be set-back in a manner which is compatible with the existing streetscape.
The relevant objectives of the Country Township (Balhannah and Oakbank) Zone are as follows:
Objective 1: Retention of the separate identity of each of the townships by the retention and enhancement of the rural separation between them.
Objective 2: Provision for some low density residential expansion in both townships.
…
Objective 5: Retention of the village character of Oakbank with the Main Street area continuing to provide retail, commercial and community functions.
Objective 6: Provision for some rural residential development at the western end of Oakbank.
The rural residential development referred to in Objective 6 has been given effect by the development of the Oakbank West Policy Zone.
Objective 1 suggests, as do the respective plans contained in the Development Plan, a firm definition of the township boundaries and the preservation of open rural land between and around them. This is but a manifestation of a number of council wide objectives and principles. Council Wide Objective 4 relating to the form of development provides for the “retention of the country town character and protection of the surrounding watersheds and primary production land from urban development”. Principle 20 provides that new housing and other urban development should “be limited to infilling of existing built up areas and compact extensions within defined boundaries”.
Council Wide Objective 30 relating to residential development provides:
Objective 30: Development of compact extensions to existing built-up areas.
The explanation which follows provides:
This objective may be achieved through selective development of infill housing, redevelopment and refurbishment of existing housing, and use of vacant and underutilised land with the aim of reducing the social, environmental and economic costs of urban development, and maximizing use of the community investment in facilities and services in existing housing areas. While a compact form of development is generally desirable, recognition must be given to areas of particular character or amenity, or to specific constraint, such as environmental or historical value, water catchment areas and areas of bushfire hazard.
Council Wide Objectives 70 and 71 relating to country townships, together with the explanatory note between those two objectives provides as follows:
Objective 70: Development of an urban character outside the metropolitan urban area contained in Country Townships.
There are several small townships within the rural areas where a limited expansion is likely to occur. If the boundaries of development are defined in relation to the economic provision of services, this will ensure that each town develops in an orderly and economic manner and will assist in maintaining the country town character.
Objective 71: Development of Country Townships contained within defined boundaries.
Council Wide Principle 184 provides:
Development of Country Townships should be contained within defined boundaries.
These objectives and principles stress the need for confining the outer boundaries of the township and reinforce Objective 1 of the Country Township (Balhannah and Oakbank) Zone and the importance of the township boundaries specified in the relevant maps accompanying the plan.
The consequence of that is that without substantial amendment to the plan, Zone Objective 2, where it speaks of “some low density residential expansion” in the township can only relate to infill residential development.
The Commissioner’s decision
The Commissioner identified two significant and important issues required to be considered in relation to both applications. First was whether the proposal was for “low density residential development”. The second issue was whether the development was conducive to the retention and preservation of and was in keeping with the “village character” of Oakbank. He then discussed the evidence in relation to these two issues.
In relation to the requirement for low density residential development he referred to Policy Area Objective 1 and Zone Objective 2, both of which are quoted above. He pointed out that there was no definition in the provisions of the Development Plan as to what might comprise “low density residential use” or “expansion”. Although he did not mention this, as I have already observed, expansion for present purposes can only mean within the existing boundaries of the township. He referred to Council Wide Land Division Principle 44(a), the only principle of direct application which says anything about minimum allotment sizes. A number of principles relating to particular residential zones within the council area contain provisions relating to desired minimum sizes of allotments. However, nothing of that nature appears in the principles relating to the Country Township (Balhannah and Oakbank) Zone or to the Oakbank Village Policy Area. Council Wide Principle 44(a) provides:
44.Land division within the Country Township Zones should comply with the following criteria:
(a) allotments intended or suitable for residential purposes should be greater than 1000 square metres in area and have a minimum road frontage of 25 metres; smaller allotments may be considered if the character of the township is not adversely affected and if each allotment is connected to a sewer or common effluent drain;
The Commissioner noted that there were recently created allotments in the Oakbank Village Policy Area of between 450 and 500 sq m and one group of three allotments of 300 sq m in Elizabeth Street south of the Onkaparinga Valley Road. He noted a range of frontages up to 15 m. He noted, in my view correctly, that site area per dwelling is only one aspect of what might be regarded as low density development. In the end he tended to agree with the planning experts called, that dwelling densities of less than between 450 and 500 sq m per dwelling were “moving beyond low density and into the medium density development range”, at least so far as the Adelaide Hills Council area was concerned.
He concluded on this topic:
In isolation, one or two smaller residential allotments than either currently exist in the town or compared to the predominant pattern of allotment areas/frontages, may not change or significantly change the perception of low density character. However, if grouped and potentially cumulatively and progressively, that is likely to change such perception. In the absence of a clear policy direction in that regard, I am reluctant to ratify a form and density of development that may commence in train a likely course of significantly more of the large allotments in the 900-1100 square metre range being split into two smaller ones.
The large allotments to which he was referring is the significant number of allotments similar in shape and size to those of the subject land contained in the original village area.
The Commissioner then went on to consider the village character, referring particularly to Oakbank Village Policy Area Objective 2 and Principle 5 and Zone Objective 5. He noted that these are supported by Council Wide Objectives 4 (referred to above) and 94 relating to appearance of land and buildings. Objective 94 and its explanatory text relevantly read:
Objective 94 Development in urban and rural areas in keeping with appearance and character of those areas.
The townships are relatively small country settlements which have a pleasing character and nature. Development within them should preserve this character and harmonise with the overall form of the existing development.
The Commissioner agreed with both planners who were called that the siting, design and appearance of the proposed dwellings would not diminish the village character. Where the planners differed was whether the site areas and frontage for each of the allotments and the provision of an additional dwelling would jeopardise the village character. The Commissioner had earlier set out a number of elements which he considered comprised the village character of Oakbank. There were seven elements in all. He considered that none of them would be affected by the creation of the additional allotments and the erection of the two proposed dwellings. However, he did say:
Whilst an increase of one dwelling and two allotments at 429 square metres and frontages of 13.41 metres may not be a perceptible change to character, particularly in Elizabeth Street, in the light of two “pairs” of allotments with smaller areas and frontages (and smaller, more closely spaced dwellings thereon) compared to the majority, and given the siting of the adjoining dwelling to the (south) on Elizabeth Street, nevertheless cumulatively and if established more generally in Elizabeth Street or other central streets, it would do so.
In expressing his conclusion on the two applications he considered that they were both “finely balanced in terms of the issues of low density residential development intended for the Country Township Zone and Oakbank Village Policy Area in general, and the desire expressed in the plan to preserve, retain and not detrimentally affect the existing village character”. He continued:
I find that the proposals are either not, or only, marginally, low density residential development and exhibit some variance to the Plan guidelines in this regard. Of themselves, they would have only a minor and a limited effect on the existing village character of Oakbank. However, I am unable to ignore or put aside, in the circumstances of these cases, the prospects of more, perhaps many more of the existing larger square allotments in the localities (A) and (B), being split into two (with resultant site areas of 400-500 square metres), or pressure coming to bear on the owners of the remaining older dwellings (though not heritage listed and demolition protected), to demolish and replace them with two allotments and two new dwellings, which a favourable decision by the Court to these current applications would surely suggest or be used in support thereof.
The localities (A) and (B) referred to by the Commissioner were the localities which he had determined as being the relevant localities for the two applications. They appear not to have extended beyond the original village area. He concluded:
On balance, and considering all relevant factors and circumstances, I find that the proposals are sufficiently at variance with the Development Plan as a whole, and particularly Council Wide Objectives 4 and 94 and Principle of Development Control 44(a); Country Township (Balhannah and Oakbank) Zone Objectives 2 and 5; and Oakbank Village Policy Area Objectives 1 and 2; to warrant their refusal.
While his conclusion was expressed in the form of the proposals being at variance with certain objectives and principles of the Development Plan, it is clear that the Commissioner was concerned not so much with the effect of these proposals in themselves, but with the “precedent” which they would create and, the cumulative effect of similar future subdivisions, if they occurred, that would be contrary to the relevant provisions of the Development Plan.
The use of “precedent” in planning decisions
The Commissioner erred in basing his decision, as it would appear, not on an assessment of the proposals against the requirements of the Development Plan but on his assessment of the effect of future applications to subdivide other allotments in the township. To do so was to make a judgment about the nature and effect of such applications when there was no evidence that they would necessarily be made, let alone evidence of the nature and likely effect of such applications. Each of those future applications would have to be judged against the requirements of the Development Plan at the time.
I adhere to the observations I made in City of Charles Sturt v Hatch:[2]
[2] [1999] EDLR 485; [1999] SASC 523 at [28]-[33].
[28]The appellant argued that the Commissioner erred in not properly considering the issue of precedent. It was argued that he had not dealt with the issue in an appropriate manner and in accordance with the reasons expressed by Judge Bowering in Nadebaum v City of Mitcham [1995] EDLR 587 at 593. It was there said:
“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.”
[29]On the question whether the granting of the application would set an undesirable precedent, the Commissioner in this case expressed himself as follows:
“Although Mr T Hatch, for the appellant, spoke himself of the existence of a number of residential properties in other parts of the Council area on which trucks are parked, the Council’s fear that approval to the use now proposed could set a precedent for other uses of a similar kind in the Residential A Zone was not, I consider, sustained. There was no evidence that the existence of the truck on the land for the past 11 years had led to others being parked with dwellings in the nearby areas. This is not surprising. From the viewpoint of a truck owner, the locality, and I expect much of the surrounding area in the Residential A Zone, has, generally speaking, no special suitability for the parking of a truck with a dwelling. Further, there was nothing before the Court which indicated a level of pressure on the Council to allow more uses of the kind proposed.
The parking of a truck, particularly a garbage truck, with a dwelling is not a common use of land, although of course it is not unknown. However, in the circumstances of the subject locality, and having regard to the provisions of the Development Plan, the Act and the regulations, the parking of a truck on land with a dwelling is unlikely, in my opinion to become more frequently proposed following the allowance of this approval.
Worries about precedent often betray a feeling by a planning authority that its ability to control development which it thinks is inappropriate is not adequate. If that is the case, the remedy lies in amendment of the Development Plan. Whether this is necessary in the City of Charles Sturt at the present time is for the Council to judge. Meanwhile, the concern about precedent arising from consent to the development presently proposed is not supported by the Court.”
[30]In that passage the Commissioner appears to be reacting to the views expressed by Mr Stefanopoulos in his evidence that the proposal, if allowed, would constitute a first intrusion of a commercial industrial type of development in the locality and would create a precedent for similar uses in this and other similar localities within the council area.
[31]In my opinion it is not relevant that if approval were given for a particular development as a first intrusion, another similar development might, for that reason, be allowed in the same or a similar zone. Any similar proposal at some other location will have to be judged against the provisions of the development plan as applicable to the particular site in question. It would be contrary to the requirements of the development plan to approve it because of an earlier approval for a similar activity at a different location. Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development has been approved so should another. A bad planning decision is not a reason in itself for making another one which is not consistent with the Development Plan. As has been made clear repeatedly in such cases as City of Mitcham v Freckman (supra) each case must be considered on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan. A judgment must then be made as to whether to grant or refuse development consent.
[32]What may become relevant as a precedent is the effect on the character and amenity of a particular locality of a development which is lawful because it has been approved, but which is one which ought not to have been approved under the development plan. Once lawfully in place, an undesirable development has an inevitable effect on the character and amenity of the locality in question, such as to open the door to other possible developments based on the character and amenity of the locality as then affected by the particular development in question. However, to put the matter in that way is to say no more than that a development which fails to conform with the objectives and principles of the Development Plan ought not to be approved. It is merely an added reason for a planning authority to be vigilant in applying the relevant provisions of the Development Plan to the particular development proposal.
[33]It follows that the Commissioner erred if he considered that a reason for not granting the application might be because in itself it would require the granting of other applications of a similar nature. As it happens, he decided that it would not. However, if the Council is faithfully performing its functions under the current planning regime, that should not be a material issue. It will only be relevant if the approval of the application affects the character and amenity of the locality in an unacceptably adverse way.
This is not a case of a “first intrusion”. There are other allotments of similar size and dimension in Oakbank, a number of them in the same street as the subject land. All that can be said about these proposals is that they could be perceived as part of a trend to subdivide larger vacant allotments in the township which might have an inevitable effect on the character and amenity of the locality. However, there is no evidence that the previous subdivisions and the erection of dwellings on them had had an adverse effect on the township’s character and amenity such as might justify the arrest of such a trend. There was no evidence that these proposals in themselves would have that effect.
As to whether the developments are for low density residential use, as can be seen below, that must depend on the particular circumstances of each proposal considered against the requirements of the Development Plan. It is unlikely that identical considerations would necessarily apply to any other subdivision proposal.
By basing his decision on the likely cumulative effect of future development applications the Commissioner was effectively usurping the function of the Development Plan itself. If the Council is independently concerned about what it considers to be an undesirable trend in the Oakbank Village Policy Area towards smaller allotments, the proper approach is to take steps to amend the Development Plan to specify desirable minimum allotment sizes for the area. It is for the Development Plan to set the policy. It is for the planning authorities to administer it. Until the Development Plan is amended, each application must be judged against the current requirements, not against what might be considered to be appropriate future policy.
The Commissioner’s consideration of the “precedent” set by these applications had a major if not dominant effect on the decision he made. In doing so he erred, and the appeal must be allowed for that reason. Whether the decision should stand will depend upon the proper application of the existing provisions of the Development Plan. It is therefore necessary to consider whether the Commissioner was correct in his assessment of the two important issues which he identified, namely whether the proposals were for low density residential development and whether they were in keeping with the village character of Oakbank.
Low density residential development
I consider this question first in relation to the application for land division. The result, if the application is successful, is the creation of two allotments of 429 sq m with 13.41 m frontages out of one existing allotment of 858 sq m with a frontage of 26.82 m.
I have already described the Commissioner’s approach to the question of low density residential development. No help as to what that expression means can be derived from the minimum allotment sizes prescribed in other residential areas of the Council. Those areas are on the fringes of the Adelaide metropolitan area and in quite different country towns in the Council area. In fact, in determining what the phrase means for the township of Oakbank, it is significant for the disposal of this case that there is no prescription as to what a minimum allotment size should be. The only relevant prescription is in Council Wide Principle 44(a). That provides that in country township zones allotments for residential purposes should be greater than 1000 sq m and have a minimum road frontage of 25 m, but that smaller allotments may be considered “if the character of the township is not adversely affected and if each allotment is connected to a sewer or common effluent drain”. Oakbank is connected to a sewer so that qualification for a smaller allotment size is fulfilled. Thus, the principle contemplates smaller allotments “if the character of the township is not adversely affected”.
It is clear from the relevant objectives and principles concerning the Country Township (Balhannah and Oakbank) Zone and the Oakbank Village Policy Area that the predominant character of the latter is its “village character”. If that character is not adversely affected, then smaller allotments than 1000 sq m may be considered, consistent with Principle 44(a), in the Oakbank Village Policy Area. The Commissioner therefore erred in holding that the proposal was inconsistent with this principle. In the circumstances of this case he was directed to consider whether the proposed allotment size and dimension adversely affected the character, principally the village character, of Oakbank.
As I have pointed out, the Commissioner concluded that in respect of all seven criteria which he identified as comprising the village character of Oakbank, that character would not be affected by the proposal. Assuming that the Commissioner’s conclusion as to the effect of the development on the village character is correct, it seems to me that for that reason alone he was obliged to conclude that the allotment sizes did not contravene Principle 44(a). However, there still remains the question whether the creation of such allotments is consistent with “low density residential use”. But it is now apparent that what constitutes low density residential use must also be decided in the context of whatever constitutes the village character of Oakbank.
There is another reason why the minimum allotment size prescribed in Principle 44(a) should have no application in the Oakbank Village Policy Area. There was evidence led before the Commissioner of the number of allotments in the township in different size ranges. The numbers may not be precise, but they are a reasonable guide to the nature and size distribution of the allotments. The plan Exhibit A3 before the Commissioner indicated the following lot size and numbers in the whole of the Country Township Zone of Oakbank:
Lot Size (sq m) Count
0 – 4009
400 to 60017
600 to 80011
800 to 100048
1000 to 1200 38
> 1200 62
TOTAL178
A number of qualifications need to be made to that table. The nine allotments in the 0-400 sq m range are all less than 290 sq m. Some of them are much smaller. As far as I can see none of them would be suitable for residential development. I would be surprised if any one of them is the only land comprised in one certificate of title. They can effectively be excluded from consideration. Of the 11 allotments in the 600-800 sq m range, two are in the Oakbank West Policy Area and can be excluded. It is doubtful whether they are suitable for residential use, but in any event the Oakbank West Policy Area is for “rural residential purposes on relatively large allotments”.[3] In accordance with that objective one would expect all the other allotments, as they are, to be in excess of 1200 sq m. Of those greater than 1,200 sq m in the table, 31 are in the Oakbank West Policy Area and can therefore also be excluded. With those adjustments, the table of residential allotments in the Oakbank Village Policy Area is as follows:
[3] Oakbank West Policy Area Objective 1.
Lot Size (sq m) Count
400 to 60017
600 to 8009
800 to 100048
1000 to 1200 38
> 1200 31
TOTAL143
It can be seen that 74, or just over 50%, of the allotments are less than 1,000 sq m. By far the greatest number of allotments, approximately one third, are in the 800-1000 sq m range. That includes the subject land. It also includes a substantial number of the allotments as laid out in the original village area. It is difficult to conceive that the 1000 sq m standard prescribed by Principle 44(a) was intended to have any application in the Oakbank Village Policy Area when more than half the allotments in the policy area have never complied with it. Accordingly, it cannot be regarded as a guide as to what constitutes, in this policy area, low density residential development.
Of the 17 allotments in the range 400-600 sq m, 13 are in the original village area. All 13 appear to be in the locality described by the Commissioner for the purposes of the first application. At least 7 of them appear to be developed for residential purposes. Neither of the planners who gave evidence suggested that these allotments did not exhibit a low density residential character. Indeed, the evidence of Mr Burns which I have already quoted was to the contrary. It follows that if the two proposed allotments are capable of sustaining dwellings which, when considered with residential development in the relevant locality constitute low density development, then the development the subject of the first application will be consistent with the relevant objectives and principles of both the Country Township (Balhannah and Oakbank) Zone and the Oakbank Village Policy Area.
Whether in fact the land division proposed will result in something which is not of the character of low density will depend on the nature, size and location of the residences built on the allotments. As Mr Burns pointed out in his evidence, residential density relates not only to allotment sizes but to allotment frontages and spacing between buildings. If the allotments are capable of sustaining detached houses with reasonable separation from adjoining residences then consent should not be refused to the first application on this ground. The consequence may be that with a smaller allotment, in order to comply with Zone Objective 2 and Policy Area Objective 1, the scale of dwelling permitted to be erected on the allotment will have to be correspondingly smaller than one which might be able to be erected on a larger allotment.
In relation to the second application concerning the proposed residences themselves, they are both on an appropriately small scale with a reasonable degree of separation between each of them and between adjoining residences. The position might be different if the application, in respect of the same allotments, were for two-storey dwellings occupying the full width of each allotment.
The Commissioner’s finding that the proposals (i.e. both of them) were “either not, or only, marginally, low density residential development” was somewhat equivocal. One can say that there is a finding that the residential development the subject of the second application qualifies marginally as low density residential development. I consider that the scale and position of the proposed residences even if it means that the developments comply only marginally with this requirement, are deserving of approval if they are consistent with the other important feature of the relevant objectives and principles, namely that they will preserve the village character of the township. It is therefore necessary to consider both applications in the light of that requirement.
Retention or preservation of the village character of Oakbank
A “village character” is a somewhat elusive concept. It is that character of Oakbank which is to be retained, according to Objective 5 of the Zone Objectives. It is that character of the main street and other streets which is to be preserved by Objective 2 of the policy area. Those two matters are of relevance to both applications. Principle 5 of the Policy Area Principles requires that the siting and design of any new building “should be in keeping with the existing village character”. That would seem to have relevance only to the second application, although if the size and shape of the allotments would effectively prevent any dwelling from complying with this principle, that would be a good ground for refusing the first application.
Not all village characters will be the same. One need only contrast the village character of Oakbank with the character of numerous European villages with narrow winding streets and densely packed two-storey row housing throughout the village. To some extent the village character of Oakbank will be dictated by the features of the original village area. However, that is not the only indicator.
Some indication of what is intended by “village character” can be derived from the context in which the expression is used in other parts of the Development Plan. Council Wide Objective 4 and Principle 20, Objective 30, Objective 70, the commentary thereon, Objective 71 and Principle 184 together with Zone Objective 1 all suggest that one of the features of a village character will be a township with clearly defined boundaries within which development will be contained.
Council Wide Principle 185 relating to Country Townships provides that commercial and service facilities should serve only the immediate rural area in order to retain the “village character” of the township. This suggests small scale commercial and service facilities.
Council Wide Principle 186, also relating to Country Townships, provides that residential flat buildings and multiple dwellings should not be erected at densities substantially greater than the density of single attached dwellings in the township. This suggests that the scale of such developments should be confined to the scale and density of single detached dwellings, but without specifying what that scale should be.
Council Wide Principles 186 and 188 would appear not to be preclude the development of residential flat buildings, group and multiple dwellings. However, those provisions must be read subject to the particular zone objectives and principles and policy area objectives and principles such as Objective 2 of the Zone Principles which enable some residential expansion in the township of Oakbank but of “low density”.
Low density residential expansion within a township is consistent with the village character, otherwise it would be difficult to justify Zone Principle 2 and Policy Area Objective 1.
Policy Area Objective 2 refers specifically to the preservation of the village character of “the main street and other streets”. This suggests that the village character is likely to be formed, at least to some extent, by the nature of those streets. That will include vehicle pavement width, footpaths and general streetscape. It also suggests the need to maintain low traffic volumes in such streets and appropriate pedestrian facilities.
Finally, Policy Area Principle 5 requiring the siting and design of any new building or alterations to existing buildings to be in keeping with the existing village character suggests that the village character will be shaped, at least to some extent, by the siting and design of buildings.
In the course of his evidence, Mr Burns described some of the features which he considered were relevant to defining the village character of Oakbank. He described them as:
Smaller allotments, built form development, closer to the road, a greater sense of intimacy in terms of the buildings’ relationships with their road, with each other and with perhaps the landscaping that goes with that and therefore with Elizabeth Street, the subject land, and its relationship to Elizabeth Street, we see, for example, a narrower road reserve or pavement width, narrow footpaths, buildings sited generally closer to the road than what might otherwise exist in other parts of the town, front fences, verandas, buildings onto the boundary of the road interspersed with landscaping on private properties. That seems to be the character of this part of Oakbank, the village character.
That assessment was not disputed.
Based on the evidence before him, the Commissioner listed the following elements and features as defining the village character of Oakbank:
·A relatively small settlement size (number of dwellings and spread), set within a rural area, near to the banks of the Onkaparinga River;
·a historic linear, grid sub-division layout and pattern of allotments and roads in the central older area, presumably dating from the mid-1800s, as I understand it, laid out by the Johnston family;
·its role as a small service centre, with a limited range of shops, commercial premises and community facilities (kindergarten, church) along a main street and with remnants of early industries (breweries such as Pikes and to the north Johnstons and others);
·a mix of small - modest sized, one and two-storey historic 19th or early 20th century buildings of traditional cottage, villa or other style and materials such as stone, brick, timber and corrugated iron with pitch roofing and lean-to’s at the rear, and with a few peripheral gentleman’s mansions of grand proportions and of similar materials;
·an intimacy created by its small size and scale, narrowness of certain roads (so called village lanes), close proximity of the traditional buildings to their frontages and in some cases side boundaries (more so on the long narrow allotments fronting the main street) but usually with more generous spacing between dwellings on the large square allotments away from the main street;
·some remnant cottage gardens, fencing and major exotic trees; and
·other historic features such as the (defunct) railway line corridor and the nearby Oakbank Racecourse.
Leaving aside the last point, which would seem to have little relevance to the village character of the township, the remaining points would appear to be justified by the references I have made to other parts of the Development Plan and to the evidence before the Commissioner. It will be noted that neither the Development Plan provisions nor the features listed by the Commissioner relate to or are dependent upon the size of allotments in the township. I would regard as a significant and common feature of all villages their overall small scale and intimacy, influenced significantly by the close proximity of buildings to street frontages. That would render smaller allotments quite consistent with the character of a village generally and with the village character of Oakbank.
Although at that point in his reasons the Commissioner did not deal separately with the land division application and the application relating to the residences, he considered that none of the village features which he listed were compromised by “the proposal”. It would appear that he was then speaking of both applications. That was a conclusion well open to him on the evidence, and having reached that conclusion in relation to both development proposals, the Commissioner’s conclusion that the land division proposal was at variance with, among others, Zone Objective 5 and Policy Area Objective 2 and Principle 5 would appear to be perverse. As mentioned above, the only apparent reason for reaching that conclusion was based on the perception of the development being used as a “precedent” which drove him to that conclusion.
As to the application concerning the residences, besides expressing the conclusion referred to in the previous paragraph, the Commissioner made a specific finding elsewhere in his reasons that the siting, design and appearance of the dwellings would not diminish the village character. I agree with that assessment which was supported by the evidence.
Conclusion
In all the circumstances the Commissioner is shown to have erred in the proper interpretation and application of the Development Plan to these two proposals. The appeal must therefore be allowed.
In the case of the first application, the decision of the Environment, Resources and Development Court must be set aside and there will be substituted an order that provisional Development Plan consent to the proposed subdivision be granted.
In the case of the second application, it is appropriate that the appeal be allowed and the order of the Court set aside. Because of the Council’s and the Commissioner’s decisions on the application, no consideration has been given to any appropriate conditions. I note that it was agreed, for example, that at least one of the intended residences should be brought closer to the street alignment. It may be, for enhanced consistency with the village character of Oakbank, that some further adjustment might be needed to the set back and location of the carports on each of the dwellings. There will no doubt be other conditions which should be considered. It is not for me to suggest particular conditions. That is a matter for the Commissioner in the light of any further submissions put to him. In the circumstances I propose to remit that matter to the Environment, Resources and Development Court with a direction that provisional Development Plan consent be granted subject to such conditions as the Court may see fit to impose.
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