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BRIGGS v CITY OF VICTOR HARBOR
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ENVIRONMENT, RESOURCES AND
DEVELOPMENT COURT OF SOUTH
AUSTRALIA
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not
breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
BRIGGS v CITY OF VICTOR HARBOR
[2008] SAERDC 31
Judgment of Commissioner Green
14 April 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING -
DEVELOPMENT CONTROL
Development Act 1993 - applicant appeal - refusal by the Council - conventional land division of
corner site, one allotment into two - Residential Zone - Residential (Hayborough North) Policy
Area 13 - relatively new planning scheme - site areas, density for different dwelling types
differentiated on policy area basis, retention of existing dwelling, locality characteristics, general
land division guides all considered - proposal well under site area/dwelling density guide -
insufficient justification to warrant departing from specific guide - insufficient compliance with
Development Plan - appeal dismissed - decision of the Council upheld.
Development Act 1993; Development Regulations 1993, referred to.
Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356, considered.
Appellant: BARRY & JACQUELINE BRIGGS In Person
Respondent: CITY OF VICTOR HARBOR Counsel: MR G LEYDON - Solicitor: NORMAN
WATERHOUSE
Hearing Date/s: 26/03/2008
File No/s: ERD-07-457
B
BRIGGS v CITY OF VICTOR HARBOR
[2008] SAERDC 31
THE COURT DELIVERED THE FOLLOWING JUDGMENT:
1 This matter is an applicant appeal against the decision of the City of Victor
Harbor (the Council) to refuse to grant Development Plan Consent to
Development Application No. 453/D049/07, made under the Development Act
1993, for a conventional land division at Hayborough, Victor Harbor.
2 The reasons given by the Council for its refusal are set out at p.23 of
Exhibit R1, save for two corrections made by counsel for the Council during the
hearing:
The proposed land division contravenes the provisions of the Development Plan in
particular Principle of Development Control 8 [sic 10] of Residential (Hayborough
North) Policy Area 10 [sic 13] – proposed allotments do not meet minimum site area;
Council-wide Principle of Development Control 17(a) and 19 – proposed allotment
number 2 not suitable for residential development (detached dwelling and associated
outbuildings); and Council-wide Principle of Development Control 27 – proposed
allotment number 2 does not have the appropriate area or dimensions for the siting of a
dwelling and ancillary buildings (setback requirements) private open space on-site car
parking and future desired character.
3 A summary of some of the relevant details in this matter is as follows:
Registration date of application: 17 August 2007
Subject land address: 75 Mentone Road, corner Petrie
Street, Hayborough, Victor Harbor
(Lot 77 Development Plan 3758,
new CT Vol. 5687 Fol. 873)
Existing use: Detached dwelling
Development proposal: Land division creating one new
allotment, total 2 allotments
Relevant authority: City of Victor Harbor
Relevant/appropriate Development Victor Harbor (City) consolidated
Plan: version 15 March 2007
Relevant Zone/Policy Area: Residential (MAP ViH/8) /
Residential (Hayborough North)
Policy Area 13 (MAP ViH/30)
ERDC No. 457 of 2007
2
Date of decision: 21 November 2007
Appeal lodged: 6 December 2007
Conference concluded: 14 January 2008
4 The Court viewed the subject land and the locality on the morning of
Wednesday, 26 March 2008 in the presence of the parties.
5 Witnesses providing evidence to assist the Court and to which regard is
given comprised for the appellants, the male appellant (a former experienced
building designer), a lay witness for these purposes and speaking to Exhibits A1-
11; and for the respondent Council, Mr B Coventry, a qualified town planner
employed by the Council (refer Exhibit R2, including locality plan).
Subject Land
6 The subject land allotment comprises a regular, rectangular corner
allotment in the north-eastern portions of Victor Harbor at Hayborough. It has
frontage to Mentone Road of some 15.24 metres and to Petrie Street of some
39.624 metres with an excised corner cut-off of 4.645 metres, and a site area in
the order of 775.74 square metres.
7 As set out by Mr Coventry:
The subject land contains a single-storey detached dwelling and associated rainwater
tank, which is situated towards the rear, northern end, of the allotment and is located
approximately 2.6 metres from the rear (northern) boundary and 2.6 metres from the
Petrie Street (eastern) boundary.
A corrugated iron fence marks the western boundary between the subject land and
number 79 Mentone Road and a colourbond fence marks the northern boundary between
the subject land and number 3 Petrie Street. The Petrie Street boundary (eastern) is
marked by a corrugated iron fence adjacent to the dwelling, which changes to a post and
wire fence just past the dwelling, and the Mentone Road boundary (southern) is also
marked by a post and wire fence.
Four large pine trees dominate the front yard of the subject land between the dwelling and
Mentone Road; there is some landscaping and garden plantings. A gravel driveway
extends for a distance of approximately 27 metres between the dwelling and Mentone
Road. There are no gates or obvious access points between the subject land and Petrie
Street. The subject land slopes roughly from north to south with a fall of approximately
2.5 metres over a distance of 43 metres.
A gravel public footpath is located along both Mentone Road and Petrie Street adjacent to
the subject land. There are no street trees or overhead powerlines located adjacent to the
subject land. Both roads feature a bitumen carriageway with Mentone Road exhibiting an
upright kerb and gutter and Petrie Street exhibits a roll over kerb and gutter.
ERDC No. 457 of 2007
3
Development Proposal
8 As shown on the proposal plan (Exhibit A5 and p.10 of Exhibit R1), the
proposal is for a conventional land division of a corner allotment and it involves
the creation of two regular shaped allotments as follows:
Allotment 1
- 452 square metres in area
- 15.25 metre frontage to Mentone Road and 22.0 metre frontage to
Petrie Street with a 4.35 metre corner cut-off
- vacant allotment, except for vegetation including certain pine trees
that are intended to be removed (two removed at time of hearing with
two further mature pine trees to be removed);
Allotment 2
- 324 square metres in area
- 17.7 metre frontage to Petrie Street
- depth of 18.3 metres
- contains the existing single storey detached dwelling (and with minor
modification intended to the rear, comprising removal of a rainwater
tank and modification of a rear verandah lean-to, to facilitate a likely
future carport to the rear in the north-western corner.
9 The Court was advised that a further development application was lodged
by the appellants with the Council for a two storey detached dwelling on
proposed allotment 1. The processing of this application has been held pending
the determination of this matter.
The Locality
10 Comprising that part of the area surrounding the subject land of particular
influence on it and that this specific land division proposal affects, to a notable
degree, I find that the locality definition is to be based on land division pattern,
general characteristics of urban residential development and to a lesser extent
visual impacts or consequences. All of the land in the locality lies within the
Residential Zone (RZ hereafter) and the Residential (Hayborough North) Policy
Area No. 13 (PA13 hereafter). I generally agree with the locality definition put
forward by Mr Coventry in Exhibit R2 at Appendix A, although I consider it
marginally too extensive to the north-east, to the south and the south-west.
11 Mr Coventry in his statement Exhibit R2 has described the characteristics of
the locality in the following terms:
The locality is characterised by detached residential dwellings of a single and double-
storey nature on individual allotments generally ranging between 700m2 and 850m2 in
area.
ERDC No. 457 of 2007
4
… There are some larger allotments to the east on the northern side of Mentone Road;
these larger allotments have been included in my locality for this assessment as they are
visible from the subject land.
The locality is defined to the north by the boundary of the Chippendale Estate; this can be
identified on my locality plan as the change in road layout from a grid-like pattern in the
older section to a series of cul-de-sacs in the Chippendale Estate. The allotment sizes in
the Chippendale Estate are smaller in size, generally ranging between 550m2 and 750m2
in area. The Chippendale Estate was approved in 1999.
…
Front setbacks are consistent at between 6 and 8 metres, side setbacks are minimal with
buildings generally setback 1m from one side and a garage or carport located on the
other, which may be situated on the common property boundary. Rear setbacks are
generous, ranging from 15m to 30m; many rear yards exhibit outbuildings in the form of
sheds or verandahs attached to the dwelling.
The setbacks exhibited on corner allotments are consistent with dwellings being setback
between 6 to 8 metres from the “primary” frontage and 2 to 3 metres from the
“secondary” frontage. [Excluding 5 Petrie Street, corner of McDonald Street to
the north which has lesser setbacks.]
Within the locality there are a few medium-density properties, however the majority of
these properties are long established and were assessed under different policies to those
that are currently in place. My research of Council property files has identified that the
two units located at 15 McDonald Street were approved in 1992, the four units at
25 McDonald Street were approved in 2000 and the three units at 105 Mentone Road
were approved in 1977.
In summary, I consider that the locality has a consistent character of low-density detached
single and double-storey dwellings on individual allotments generally ranging from
700m2 to 850m2. [But with approximately 10 in the 325-500 square metre
range.]
Relevant Development Plan Provisions
12 I have noted the various provisions referred to by counsel and the
witnesses, and I find the following to be the provisions in the
appropriate/relevant Development Plan of most assistance to an assessment of
the specific proposal, including the key issues between the parties:
COUNCIL WIDE (CW hereafter)
Objectives: 1, 5, 9, 11, 12, 14, 16, 17 and 57; and
Principles of development control: 1, 2, 17, 18, 19, 27 (and Design
Technique 27.1), 39, 45, 50, 51, 57, 60, 66, 73, 84, 104, 105, 167, 169, 304, 308
and 309.
RESIDENTIAL ZONE (RZ hereafter)
Objectives: 1, 2 and 3;
Desired Future Character: paras 4 and 10 (established plain area); and
ERDC No. 457 of 2007
5
Principles of development control: 1, 15 and 17 (and Table ViH/5).
Residential (Hayborough North) Policy Area 13 (PA13 hereafter)
(and having regard to the context of all policy areas and applicable criteria as set
out and generalised in Map 1 in tabular form in Exhibit R4)
Objectives: 1 and 2;
Desired Future Character
Density
Paras 1-3; and
Form and appearance
Para thereafter.
Principles of development control: 1, 2, 7 and 10.
Processing
13 The documentation shows that the Council gave the application a
Category 1 designation resulting in no formal public notification. No
representations were received, although a letter from an adjoining owner in
favour of the proposal was forwarded to the Council by the applicants/appellants.
The evidence shows that their land was sold to them by the appellants. Statutory
referral advice was received from the Development Assessment Commission
(DAC) and together with advice from SA Water (Exhibit R1, pp.16 and 17)
raised no significant and only standard issues and recommended conditions.
Approach to Assessment
14 Section 33(a) of the Act requires the relevant authority (the Council) and on
appeal this Court, to assess a development application against the provisions of
the appropriate/relevant Development Plan and s 35(2) specifies that where
a development is assessed as being seriously at variance with the Development
Plan, it must not be granted consent. The whole of the Development Plan must be
assessed, including on appeal. The relevant guidelines in the Plan (cited above)
provide the firm basis for decision-making together with a consideration of any
other relevant matters.
15 In terms of s 35 and the relevant provisions of the relevant Development
Plan, the proposal is for consideration on its merits against the Plan guidelines
and involves the weighing-up of the pros and cons and considering whether it is
sufficiently conducive to the overall intent, purpose and desired character and
amenity of the RZ and PA13 tested in the specific site and locality context. The
Plan is also to be utilised as a flexible, advisory planning policy document, not as
a mandatory legal statute and as a practical guide for practical application,
superimposed upon an existing state of development on the site and in the
relevant locality. Ultimately, a planning judgment is to be made on a fact and
degree basis as to whether the specific proposal sufficiently meets the
Development Plan and having regard to all relevant matters, warrants consent.
ERDC No. 457 of 2007
6
16 Allotment size and dwelling type intended is effectively the key issue raised
by the Council, however that element cannot be dealt with in isolation and must
be considered in conjunction with the broad directions and guidelines for
residential development, for the PA13 as a whole and for the RZ, as well as
certain CW guidelines of a more technical or broader nature.
Planning Assessment
17 Through PA13, Objective 1, its desired future character – Density statement
and Principle 2, low to medium densities are encouraged and accommodated.
The proposed allotment areas are generally consistent with that thrust. Indeed
PA13, Principle 10, encourages minimum site areas for allotments and dwellings
of 500 square metres (with 12 metre frontages) for detached dwellings and
300 square metres (9 metre frontages) for semi-detached dwellings.
18 The proposed allotments with retention envisaged of the existing dwelling
and intention of the appellants highlighted by the further application for a
detached dwelling on the proposed new vacant allotment, are for detached
dwellings but they do not meet the site area guide of 500 square metres, although
they exceed the site area guide for semi-detached dwellings.
19 As correctly submitted and acknowledged in the Council’s case, two
dwellings and two allotments per se are not at issue, as two semi-detached
dwellings and allotments for them could easily be achieved on the subject land,
particularly with demolition of the existing dwelling. However, appellants are not
keen on the latter. They prefer retention and re-use of the existing dwelling.
20 Whilst semi-detached dwellings, and on smaller allotment areas of
300 square metres, are encouraged by the RZ and PA13 provisions, they are not
presently part of the existing character of the locality. On the other hand detached
dwellings, including several of two storey (and with a dozen or so on allotments
or site areas of less than 500 square metres), are part of the established character
and the proposed division to facilitate retention of the existing dwelling and a
new two storey dwelling on a corner site, are reasonably consistent with it.
21 Hence, the nub of the assessment is the weight to be applied to PA13
Principle 10, compared to the weight to be applied to the existing character and
broad guidelines for PA13, the RZ, and for residential development on a CW
basis.
22 It is the Council’s case and the evidence of Mr Coventry that the former
outcome is preferable on the basis of certain shortcomings of the existing
dwelling and layout (for example, setback to Petrie Street; absence of covered
vehicle parking; doubtful adequacy of remaining private open space for the
existing dwelling; entrance not facing its primary frontage). However, these
shortcomings could be fully addressed and rectified/improved with its demolition
and replacement by two new semi-detached dwellings.
ERDC No. 457 of 2007
7
23 Assessing the proposed division in regard to other planning guidelines, but
with limited consideration only given to them, as they were not at issue between
the parties, it is clear to me that:
• suitable access is available in principle, to each allotment from
Petrie Street and/or Mentone Road for both the proposed corner allotment
1, as well as allotment 2 containing the existing dwelling and with a new
access intended towards its northern boundary;
• adequate off-street car parking can be provided, associated with residential
development for each allotment, particularly allotment 2 with the existing
dwelling;
• adequate private open space and functional areas will remain on
allotment 2 for the occupants of the existing small dwelling to meet the
reasonable needs and convenience of them;
• allotment 1 and the land therein is suitable in all respects for a detached
dwelling development that can be designed to be sufficiently in accord
with relevant guidelines (whether of one or two storeys);
• the land division would not change the impact arising from the existing
dwelling on Petrie Street (due to its street setback), but in the locality
context with several older dwellings and varied setbacks, it is assessed to
be satisfactory; and
• general guidelines for land division, CW Principles 17-19 and 25, are met.
24 Unlike Mr Coventry, I do not assess that the existing dwelling should be
removed, although that is an option for the appellants or future owners. I assess
there to be no strong need or positive planning outcomes to encourage
(effectively) demolition of the existing dwelling and a land division to facilitate
two new semi-detached dwellings.
25 It is usual to determine the desired future character for a location by
carefully considering the most specific Policy Area and Zone provisions with
Council-wide and other broad guidelines being of somewhat less assistance,
except for functional or more detailed design aspects.
26 With regard to this proposal and having regard to PA13, I note that
Principle 10 is consistent with Objective 1 (and subject to dwelling design) and
Objective 2. Though CW guides (for example Objectives 11-16 and
Principles 25, 27(d)) may place some emphasis on character preservation and
broadly support infill redevelopment, this should not be at the expense of, or in
lieu of, that specifically described and intended by the relatively new (7
December 2006) planning policies and desired future character statements for the
most specific PA13.
27 Hence, I broadly agree with the reasoning of Mr Coventry and his evidence,
and the Council’s case. Notwithstanding the planning outcomes particularly for
character, amenity, the environment and infrastructure, of semi-detached
ERDC No. 457 of 2007
8
dwellings on 300 square metre site areas compared to that arising from detached
dwellings on site areas between 300 and 500 square metres, may not be very
different or significant. I therefore pose the question is the proposed division with
proposed allotment areas of 324 and 452 square metres so out of kilter with the
guidelines in Principle 10 of 500 square metres for detached dwellings and
300 square metres for semi-detached dwellings?
28 Obviously they are in respect of the site area for a linked-deemed
appropriate-new detached dwelling development, and the clear policy distinction
and direction (between site areas sought for semi-detached dwellings, as opposed
to detached dwellings), is to be respected. I therefore see insufficient reason or
justification to depart from that directly applicable guideline having regard
generally to the ten factors for consideration as set out at para 81 in the Supreme
Court judgment of Town of Gawler v Impact Investments Corporation Pty Ltd
[2007] SASC 356.
Conclusions
29 The development proposal, a land division to facilitate retention of an
existing detached dwelling and the further development of another detached
dwelling, is clearly and significantly not in accord with the guidelines in PA13
Principle 10. I assess that to be an important guideline setting a key density
parameter for the specific policy area, and differentiated in the overall scheme
from some 13 other policy areas and desired characteristics.
30 Whilst the proposal may gain some support from allotment sizes in the
locality and on corner allotments, I assess that to be insufficient to over-ride or
ignore the new specific density policy guideline, even where they encourage
allotments and dwelling densities of higher density for semi-detached dwelling
development – something that is currently foreign in the locality.
31 I have considered and weighed up the proposal against all relevant
guidelines in the applicable Development Plan, in the site, locality and
streetscape contexts, having regard to case law and with regard to all relevant
matters. I assess and find that the proposal is not worthy of Development Plan
Consent.
Decision
32 The appeal is dismissed. The decision of the Council is upheld.
33 There will be an order to that effect.
