Judgment in the matter of Datsopoulous v City of Port Adelaide Enfield No 2

DATSOPOULOS v CITY OF PORT ADELAIDE ENFIELD (No 2)

[2012] SAERDC 6

25 January 2012

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a decision to refuse consent to a development application to demolish an existing dwelling and to construct three new detached two-storey dwellings - appeal heard together with an appeal against refusal of consent to create three allotments from one - Residential Zone - issues of minimum site area, setbacks and landscaping - desired character sought for the Zone and Policy Area - nature of locality - locality found to be unusual - subject land a "small pocket of land" suitable for redevelopment - design of proposed dwellings agreed to be of high standard, similar in scale and built form to single-storey dwellings in the vicinity - Appeal upheld. Development Plan Consent granted subject to conditions

Development Act 1993 (SA); Development Regulations 2008 (SA), referred to.

City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244; City of Charles Sturt v Hatch [1999] EDLR 495, considered.

1 This is an appeal by Angela Datsopoulos (the Appellant) against the decision of the Port Adelaide Enfield Council (the Respondent Council) to refuse consent to a development application (DA 040/1620/10) for development plan consent to demolish an existing dwelling at 31 Woodfield Street, Enfield and to construct three new detached dwellings on the land. The decision to refuse consent was made on 10 November 2010. An appeal was lodged against this decision and a number of amended proposals were considered by the Council's Development Assessment Panel in the course of the conciliation conference process. Ultimately, however, the Panel maintained its opposition to the proposed development and the matter proceeded to hearing.

2 This appeal was heard together with a separate appeal against the Council's refusal of an application to divide the land at 31 Woodfield Street, Enfield, into three new allotments. It was agreed that the evidence in one matter should be regarded as evidence in the other. A separate judgment has been issued in relation to the appeal concerning the land division (Datsopoulos v City of Port Adelaide Enfield (1) [2012] SAERDC 5).

3 At the hearing Mr S McDonald appeared for the Appellant and Mr A Watson for the Council. The Court heard expert evidence from two professionally qualified and experienced planners, Mr P Brunning and Mr A Cronin. A view of the subject land and its locality was undertaken prior to the hearing.

4 The subject land at 31 Woodfield Street, Enfield, is formally described in Certificate of Title Volume 6062, Folio 177, as Allotment 288, Deposited Plan 2976. It comprises a corner allotment of some 671 square metres. There is a timber-framed dwelling on the land at present which appears to be in poor physical condition. The primary eastern frontage to Woodfield Street is 12.19 metres wide and the southern boundary along Ellis Street is 41.15 metres long. The western boundary of the land is 15.24 metres long. There is a small corner cut-off at the junction of Woodfield and Ellis Streets. The allotment has a slight slope from south-east to north-west.

5 Both expert planners defined a locality for the purposes of assessing the matters before the Court. Mr Brunning's locality extended south to Branson Avenue and a similar distance north to include the Barton Vale Gardens Nursing Home and properties on the north side of Prescott Street. To the east his locality extended as far as Chilworth Avenue and to the west it extended just to the west of Friar Street. Mr Cronin's locality was similar but did not extend quite as far to the east or west as Mr Brunning's.

6 Mr Brunning described the locality as residential with the Barton Vale Nursing Home/Retirement Village as a major feature. Associated with the retirement village are several independent living units in proximity to the subject land. He also identified a pair of recently constructed narrow-fronted semi-detached dwellings to the north at 27 and 27A Woodfield Street. On Mr Brunning's assessment, the locality was "in transition", from an earlier form of development based on detached dwellings on larger allotments to a "more compact and efficient" form of residential development, including development associated with aged persons' accommodation. Mr Brunning suggested that the subject land and the allotment immediately to its north were the only remaining allotments in the locality which had not been redeveloped in a "more compact and efficient" way. Development in the locality was typically single-storey with a variety of architectural styles. Street set backs were modest on his assessment, front fences, where they existed, were low, and gardens were well-landscaped.

7 Mr Cronin's description of the locality did not differ much from Mr Brunning's. He observed that the independent living units associated with the Barton Vale retirement village were built at a higher density than was typical of this part of Enfield. Many were semi-detached in form but they were not built on individual allotments. Mr Cronin also noted that there were no parks or reserves within his locality. The nearest public transport was some 600 metres away to the west on Main North Road.

8 There were no significant differences between the locality descriptions provided by the two planning experts. This is a residential area of single-storey dwellings. Older timber-framed dwellings on larger allotments have been replaced to some extent in recent years by brick veneer dwellings on smaller sites, although Mr Cronin was of the opinion that the majority of the dwellings in the locality were at least 15 years old. The independent living units associated with the retirement village are important elements of the locality. Retirement units which are semi-detached in form are situated directly across the road from the subject land on both Ellis and Woodfield Streets. The character of Ellis Street to the west of the subject land is also strongly influenced by a large car park associated with the retirement village, screened from the street by fairly dense vegetation.

9 The proposal is to construct three detached dwellings on the subject land. Each would have a single garage under its main roof and an additional car parking space on the driveway in front of the dwelling. The proposal plans and elevations were received by the Court as Exhibit A1, together with a set of computer-generated three-dimensional images of the completed development (Exhibit A3). The proposed dwellings are two-storey, each having a room described as an attic on the upper or first floor. The Court was informed that this room was for storage but might also be used as a bedroom or study. Each dwelling would also have two bedrooms on the ground floor together with a kitchen, living area and bathroom.

10 Each dwelling was shown on the proposal plans as being associated with one of the three allotments which were the subject of the separate land division application. The western allotment on the northern side of Ellis Street was referred to as Allotment 400, the allotment immediately to its east as Allotment 401 and the corner allotment, with its main frontage to Woodfield Street, as Allotment 402. Allotments 400 and 401 each have an area of 220 square metres. Allotment 402 has an area of 231 square metres. Mr Brunning calculated the site coverage of each proposed dwelling at about 45 per cent of its allotment area. Each allotment would also have about 54 square metres of private open space if developed in accord with Exhibit A1.

11 The proposal plans include a planting plan and list of species, including hedge plants, small shrubs, ground covers and a small number of trees (Hakea sericea). No fencing is proposed on the street frontages, apart from a small section of 1.8 metre high sheet metal fencing along part of the Ellis Street side boundary of Allotment 402. Each dwelling is also to be provided with a rainwater tank with a capacity of 2000 litres.

12 The relevant Development Plan for the assessment of this proposal is the Development Plan for Port Adelaide Enfield (City) consolidated on 20 May 2010. The subject land is within the Residential Zone and, more particularly, within the Residential East Policy Area (Policy Area 43). Development Plan provisions which, in my opinion, are most relevant to the proposed development are as follows:

Objective 5: Residential development that complements and reinforces the desired future character and amenity of localities.

Objective 6: Revitalisation of under-utilised suburbs, particularly public housing areas, to facilitate the provision of a greater mix of housing types and improved residential amenity.

Objective 8: Convenient access to a wide range of community facilities and services.

4. Allotments should be of a size and dimension consistent with the Desired Future Character Statement and Objectives and Principles of Development Control of the relevant Policy Area.

6. Residential allotments should have the appropriate area, configuration and dimensions to provide for:

7. Where an allotment is of an irregular configuration or has an area less than 300 square metres, the proposal should demonstrate that the subject land can meet the relevant Principles of Development Control, except in Northfield Policy Area 50.

11. Residential allotments created from the division of corner allotments (allotments having frontage to two roads) should:

(a) maintain or enhance the general character or desired future character of the locality;

44. Building design and appearance should have regard to the character of the locality, and the Desired Future Character of the relevant Policy Area, having particular regard to:

(b) external materials, finishes, patterns, textures, colours and decorative elements;

46. The visual bulk of buildings facing the street or the private open space of adjoining land should be reduced through design techniques such as colour, building materials, detailing, articulation, windows and other fenestrations.

51 Dwellings (excluding minor protrusions*) should be set back from the allotment boundary on the primary frontage* (unless located on an arterial road where a minimum setback of 7 metres is required):

(a) the same distance as one or the other of the adjoining dwellings (or any distance in between), provided the difference between the setbacks of the two adjoining dwellings is less than or equal to 2 metres in accordance with Figure 3; or

(b) not less than the average of the setbacks of the adjoining dwellings, if the difference between the setbacks of the adjoining dwellings is greater than 2 metres in accordance with Figure 4.

52. In areas where there is no established setback, dwellings (excluding minor protrusions) should be setback from the allotment boundary on the primary frontage a minimum of 5 metres (except in Policy Area 44 where setbacks should be a minimum of 3.5 metres or as otherwise indicated in Policy Area 50), unless located on an arterial road where a minimum setback of 7 metres should be provided.

53. Dwellings should be set back from the allotment boundary on the secondary frontage a minimum of:

(a) 1.5 metres for single storey dwellings and 2 metres for two storey dwellings, unless the secondary frontage is an arterial road where a minimum setback of 4 metres is required; or

(b) 2 metres plus any additional increase in wall height above 6 metres for dwellings more than two storeys; or a minimum of 4 metres on an arterial road, whichever is greater.

60. Single storey components of dwellings should be set back a minimum of 3 metres from their rear boundary (except where the rear boundary adjoins a service lane, in which case the distance may be reduced to 0 metres).

61. Two storey components of dwellings should be set back a minimum of 8 metres from their rear boundary (except in Policy Area 44 where dwellings should be setback a minimum of 5.5 metres and in Policy Area 50).

64. Except where otherwise stated in the relevant Policy Area, development should not exceed two storeys and 9 metres in total building height (measured from natural ground level to the highest point of the building). Development that is greater than single storey should:

(a) complement the height, scale, siting and character of adjoining development where that development contributes to the desired character of the area; and

(b) minimise the impacts of overshadowing and intrusion on privacy of adjoining dwellings.

72. Dwellings should include private open space which conforms with the requirements of Table 1, except as otherwise indicated in Policy Area 50.

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Greater than 250 m2 (a) 25 percent of the allotment, of which balconies, roof patios, etc can comprise part of this area provided the area of each balcony, roof patio, etc is 8m2 or greater; and

(b) one part of the space is directly accessible from a living room* and has an area equal to or greater than 10 percent of the allotment area with a minimum dimension of 5 metres and a maximum gradient of 1 in 10.

(a) 50m2, where part of this area can comprise balconies, roof patios, and similar open space areas provided each area is greater than 8m2; and

(b) one part of the space is directly accessible from a living room* and has an area of 16m2 with a minimum dimension of 4m and a maximum gradient of 1 in 10.

75. Private open space should, where possible, promote comfortable year-round use by having a northerly aspect which is:

(a) not significantly shaded by the associated dwelling or adjacent development during winter; and

76. An adequate proportion of the total private open space provided at ground level should be open to the sky to provide amenity, opportunities for landscaping and a reduction in stormwater runoff.

76.1 A maximum of 30 percent of the private open space provided is covered by verandahs or similar structures.

76.2 A maximum of 40 percent of the total private space provided is paved, or otherwise sealed, and is designed to accommodate landscaping.

80. Dwellings close to noise sources should be designed to locate noise sensitive rooms and private open spaces away from noise sources, or be protected by appropriate noise shielding techniques.

13 The following provisions for the Residential Zone are also of some relevance to the assessment of the proposed development: Objectives 2-4 and 9-10; and Principles of Development Control 3, 5, 8, 45, 48, 54-58, 62, 65-69, 71, 77-78, 83, 88-90, 101-110, 115-116 and 130:

Objective 1: A Policy Area accommodating a variety of dwellings on a range of allotment sizes but with a predominance of single-storey detached dwellings.

Objective 2: Medium density housing located within 500 metres of centres and shops or public transport routes or areas of public open space.

The policy area is largely characterised by detached dwellings on allotments averaging 700 to 800 square metres, constructed in the 20 year period immediately after the Second World War. The area is also characterised by ample street and side boundary set-backs which, together with wide road reserves imparts a spacious, suburban quality.

This policy area should be distinguished by a predominance of single-storey dwellings that are orientated towards the road, with open or low-fenced front gardens, which are extensively landscaped. The character of areas which have a distinctive and recognisable character and which have a high-level of amenity should be retained. Areas that have a low-level of amenity should be redeveloped and upgraded.

Opportunities for re-development within this policy area will be limited to small pockets of land and it is important that any infill housing gives due recognition to the character of the area in which it is located, by having regard to the scale and siting characteristics of adjoining buildings.

1. Development should be primarily single-storey detached dwellings on a range of allotment sizes.

2. Development should be designed in accordance with the desired future character for the policy area as described in the Desired Future Character Statement.

14 Objective 5 is followed by an explanatory paragraph which includes the following sentence:

28. Development should be of a high architectural standard and be designed to allow for landscaping where appropriate.

289. Development should incorporate landscaping as an integral part of the design of the development to:

291. Landscaping species should be appropriately selected for their beauty, ability to perform a particular function, ease of maintenance and so as not to affect the structural integrity of adjacent development.

15 The following Council Wide provisions are also of some relevance to the assessment of the proposed development: Objectives 2, 56, 85, 86 and 116; and Principles of Development Control 6, 26, 27, 29, 30, 32 and 36.

16 The proposed dwellings would occupy allotments considerably smaller than the minimum size of 300 square metres required by Principle of Development Control 4 for Policy Area 43. This was acknowledged by the Appellant. The principal questions before the Court were whether the circumstances in the locality could be said to justify dwellings on allotments smaller than the stated minimum and what the consequences of this would be for the desired character sought for the Policy Area.

17 Both planning experts agreed that residential development was an appropriate use for the subject land and that its redevelopment could, in principle, improve the amenity of the locality. Mr Cronin noted that Council Wide Objective 5 seeks "a compact metropolitan area" through, amongst other means, the selective development of infill housing, redevelopment of existing housing and use of underutilized land. He found the proposed dwellings to be well-designed and was of the opinion that their visual bulk would be reduced by their colour, materials, textures and the high degree of articulation, especially on their primary frontages. While they were two-storey dwellings in a Policy Area with "a predominance of single-storey detached dwellings", he acknowledged that the upper floors of the proposed dwellings were small and concealed in the roof space in a way which would lead to the dwellings fitting in well with existing single-storey dwellings in the locality. The proposed dwellings were similar in their overall height to other dwellings in the locality, the siting of the dwellings slightly below street level would contribute to a reduction in their perceived height when viewed from the street and their roof forms were similar to the predominant roof forms in the locality. Overall, the dwellings had regard to the character of the locality in terms of building design, as required by Principles 44 and 46 for the zone.

18 Mr Cronin's principal criticism of the proposed dwellings was that they failed to meet the requirements of the Development Plan with regard to setbacks and spatial separation. He did not raise any significant objections to the proposed side setbacks or to the location of some construction on boundary walls. Also, while the rear upper floor setbacks of all three dwellings were set back less than the 8 metre requirement of Zone Principle 61, Mr Cronin found this variation to be "minor and supportable, given the small size of each upper floor portion, the fact that the upper floor portions are primarily contained in the roof space, and also that the subject site is located to the south of its only adjoining private residential property, meaning the reduced setback will not equate to overshadowing". It was the front setbacks, however, that caused Mr Cronin most concern. While the design of the dwellings went some way towards reducing their impact, he found that the "uncharacteristically small front setbacks" would have a negative effect on the streetscape character of the locality. Mr Cronin found the typical street setback of dwellings in the locality to be between 5 and 8 metres. The minimum setback required on the Ellis Street frontage of the dwellings on proposed allotments 400 and 401, on his interpretation of Zone Principle 52, was 5 metres. The two dwellings facing Ellis Street had proposed setbacks of only 3.25 metres, while the dwelling facing Woodfield Street has a proposed front setback of 4.55 metres to the main face of the building.

19 The reduced front set back would, in Mr Cronin's opinion, reduce the space available for landscaping at the front of the proposed dwellings and this would, in turn, impact on the streetscape. On p 11 of his statement, Mr Cronin offered the following opinion:

20 Mr Cronin found the landscaping shown on the proposal plans to be at odds with the requirements of Council Wide Principles 289 and 291 and Residential Zone Principle 119(a). With regard to Principle 291, while acknowledging that he was not an expert in arboriculture, Mr Cronin questioned the use of Hakea Sericea as the tree species to be planted in the front gardens of all three dwellings and also in the private open space area of the corner dwelling. It was his understanding that this species had sharply pointed leaves which might make it unsuitable in its proposed locations, and particularly adjacent to a public footpath. More generally, he did not find the landscape proposals to be an integral part of the overall design, as required by Council Wide Principle 289.

21 It was Mr Cronin's further evidence that the proposed dwellings complied with the minimum requirements for private open space set out in Zone Principle 72 and its associated table. However, he found that the principal area of private open space of the dwelling on proposed allotment 402 was adjacent to the front bedroom of the dwelling on Allotment 401. This had the potential to cause an unacceptable level of noise for occupants of this bedroom and was at odds with Council Wide Principle 29(b) therefore. The private open spaces for the dwellings on allotments 400 and 401 were north-facing, which was appropriate, but here Mr Cronin was concerned that the amount of paving - about 60 per cent of the total area of private open space - was considerably in excess of the 40 per cent maximum suggested by Design Technique 76.2. This could lead to these areas of private open space and their adjoining living areas being uncomfortably hot in summer.

22 In his evidence Mr Cronin acknowledged that Objective 2 for the Policy Area allows for "Medium density housing located within 500 metres of centres and shops or public transport routes or areas of public open space". The proposed development met the definition of medium density housing in his opinion, but it was more than 600 metres from the nearest bus route and a greater distance still from the nearest centre. Mr Cronin further acknowledged the presence of some infill housing in the locality on allotments smaller than 300 square metres, although none was as small as the proposed allotments on his assessment. He was concerned that the approval of the proposed dwellings would set an undesirable precedent and that the intent of the Development Plan would be jeopardised by the approval of a development which would conflict with both the intended subdivision pattern and the siting characteristics for new dwellings sought in the Policy Area and the Zone.

23 Mr Brunning placed a good deal of weight in his evidence on the third paragraph of the Desired Future Character statement for Policy Area 43 which states that "opportunities for re-development within this policy area will be limited to small pockets of land and it is important that any infill housing gives due recognition to the character of the area in which it is located, by having regard to the scale and siting characteristics of adjoining buildings".

24 On his assessment, this was such a "small pocket of land". Maps PAdE/55, 61-67 and 70-80 of the Development Plan show that Policy Area 43 covers a large part of the Council area, but this particular locality was not typical of the Policy Area according to Mr Brunning. It was not a locality of "detached dwellings on allotments averaging 700 to 800 square metres" constructed immediately after the Second World War. Rather, it derived its character primarily from the smaller dwellings of the Barton Vale retirement village, several of which were semi-detached in form,. While these were not developed on individual allotments with separate titles, the retirement village dwellings to the south and east of the subject land had average site areas per dwelling of between 215 square metres and 246 square metres on Mr Brunning's assessment (see Figure 2 on p 10 of his statement, Exhibit A4). These areas were comparable to the allotment sizes proposed for the three detached dwellings which were the subject of this appeal. It was thus an area of more intensive development than was characteristic of the Policy Area generally. The subject land was one of the only remaining allotments in the locality capable of being redeveloped for infill housing - its neighbour immediately to the north was the only other such allotment. In these circumstances Mr Brunning was able to support the proposed development. He acknowledged that a development of the density proposed would be unlikely to be appropriate in those more typical parts of the Policy Area which retained a spacious suburban quality derived from detached dwellings on allotments of 700 square metres or more. This was not such a locality, however.

25 With regard to Objective 2 for the Policy Area, Mr Brunning acknowledged that the land was more than 600 metres from public transport on Main North Road and further still from any centre. He did find, however, that there was public open space within 500 metres - a small reserve at the end of Walker Court and also a school oval on Harewood Avenue. In this respect, therefore, the proposed development did meet the strict terms of Objective 2.

26 Mr Brunning concurred with Mr Cronin's opinion that the proposed dwellings were well-designed and met high architectural standards. They complied well, in his opinion, with the requirement in the Desired Future Character statement, that infill housing should give "due recognition to the character of the area in which it is located, by having regard to the scale and siting characteristics of adjoining buildings".

27 With regard to the setbacks of the proposed dwellings, Mr Brunning's view was that there was no relevant existing setback distance on the northern side of Ellis Street, since most of the existing frontage for a considerable distance to the west of the subject land was given over to the Barton Vale car park, behind its dense screen of vegetation. The proposed dwellings would therefore establish a consistent setback along their frontages and would have no negative effects on the streetscape. He acknowledged that the setback would be less than 5 metres, but pointed out again that the independent living units associated with the retirement village on the southern side of Ellis Street also had front setbacks of less than 5 metres. He also found that the proposed dwelling on allotment 402, fronting Woodfield Street, was set back an appropriate distance from that street in relation to the dwelling to its north and also to the dwelling on the southern corner of Ellis Street and Woodfield Street.

28 Mr Brunning agreed with Mr Cronin that the proposed dwellings met the minimum private open space requirements set out in the Development Plan. He found the proposed landscaping to be acceptable, although, like Mr Cronin, he acknowledged that he was not an expert in arboriculture or landscape design. In the course of cross-examination, when it was suggested to him that the area of paved private open space proposed on allotments 400 and 401 was excessive, Mr Brunning agreed that there would be merit in replacing some of this paving with 'soft landscaping' and that this would be likely to improve the amenity of those spaces. Mr Brunning was not concerned at the proximity of the private open space of the dwelling on proposed allotment 402 to the front bedroom of the dwelling on Allotment 401. He noted that there were no bedroom windows in the wall adjacent to the private open space and was of the opinion that the relationship between the open space and the adjoining building was not unusual in infill development.

29 Overall, I prefer the evidence of Mr Brunning to that of Mr Cronin in this matter. It was common ground that the proposed dwellings would occupy allotments substantially smaller than the minimum of 300 square metres specified in Principle 4 for Policy Area 43. I also acknowledge the force of Mr Watson's submission, based on the judgment of Debelle J in City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244, that minimum standards in a Development Plan are not to be construed as desired standards.

30 However, in my judgment the key point in this matter is the character of the locality. I agree with Mr Brunning that this is not a locality which exemplifies the character which exists in, and is generally desired for, Policy Area 43. Rather, it derives its character to a very significant extent from the existence of the Barton Vale retirement village and its independent living units, many of which are semi-detached in form. These give the locality a higher density than is typical of the Policy Area and a different streetscape character. Mr Brunning demonstrated to my satisfaction that site areas of 300 square metres or more are not typical of the locality and, largely as a consequence, dwelling forms are also not of the sort that are found in the greater part of the Policy Area where allotments of 700 square metres or more are the norm. This seems indeed to be one of the "small pockets of land" on which redevelopment is appropriate in this Policy Area.

31 The Desired Future Character statement requires that infill housing gives due recognition to the character of the area in which it is located by having regard to the scale and siting characteristics of adjoining buildings. Both experts agreed that the design of the proposed dwellings was of a high standard and that, though all three dwellings are two-storey, the way in which the small upper-storey was included in the roof space meant that they would be similar in scale and built form to nearby single-storey dwellings. The only real issue with relation to siting related to the reduced front setback and here again I prefer Mr Brunning's evidence that, given the character of existing development on the northern side of Ellis Street and of the locality generally, the impact on the streetscape of the proposed dwellings would be slight.

32 With regard to landscaping, I agree with Mr Cronin's opinion that the amount of paved private open space on the northern side of the dwellings proposed on allotments 400 and 401 is excessive and should be reduced to accord with the maximum of 40 per cent suggested in Design Technique 76.2 for the Residential Zone. In my opinion, there would be merit in imposing a condition of approval which requires an amended landscape plan to be prepared by a suitably qualified expert which can address both the balance between paving and planting across the three proposed allotments and also the appropriateness of the plant species suggested.

33 Finally, with regard to Mr Cronin's concern about the risk of establishing a precedent by approving dwellings on allotments smaller than 300 square metres, I think this can be largely discounted. It is well-established that there is no planning doctrine of precedent (City of Charles Sturt v Hatch [1999] EDLR 495). There may sometimes be circumstances in which it is appropriate for a relevant authority to consider the cumulative effect of its decisions in influencing community expectations, but a similar development proposal on a different site will always need to be assessed against the provisions of the relevant Development Plan as they apply to that particular site. In this case, as Mr Brunning argued, and as I have accepted, the characteristics of the locality differ significantly from those of the greater part of the Policy Area. This is one of the "small pockets of land" suited to infill housing referred to in the Desired Future Character statement and is to be distinguished, for the reasons explained earlier, from other parts of the Policy Area where a "spacious suburban quality" exists and where the arguments accepted in this case for departing from clearly expressed policies relating to allotment size and setbacks would be unlikely to apply.

34 I have given careful consideration to all relevant provisions of the Development Plan, to the evidence and submissions that I heard, to the conditions in the locality that I observed on the view and to my own planning assessment of the "pros and cons" of the proposed development. Having done so, I have concluded that the proposed development is sufficiently in accord with the Development Plan to merit consent.

35 By memorandum dated 8 December, 2011, I intimated to the parties my intention to uphold the appeal and invited them to confer on appropriate conditions of consent. Draft conditions, agreed by the parties, were submitted to the Court on 24 January 2012. I find these to be appropriate and have incorporated them into my decision.

36 Development Plan Consent is granted to Development Application No.040/1620/10, subject to the following conditions:

1. Except where minor amendments may be required by other relevant acts, or by conditions imposed by this application, the proposal in application 040/1620/10 shall be developed in accordance with the amended plans in Exhibit “A1”, namely plans numbered 13-230-01 and 13-230-02 with latest amendments dated 18 October 2011 and plan numbered 13-230-03 with latest amendment dated 9 June 2011, to the reasonable satisfaction of the Council prior to the occupation and/or use of the development;

2. The finished floor level(s) of the proposed building(s) or structure(s) shall be constructed in accordance with the approved plans;

3. All stormwater from buildings and paved areas shall be captured, stored, re-used or disposed of in a manner and with materials to the reasonable satisfaction of the Council, prior to the occupation of the site;

4. A landscape plan and schedule shall be submitted to the Council that provides for the planting of appropriate trees, shrubs and ground covers in the nominated landscape areas and such plantings thereafter shall be nurtured and maintained in a tidy and healthy state to the reasonable satisfaction of the Council;

5. The front ground floor glazing to bedrooms shall be minimum 6mm laminate glass or otherwise satisfactorily treated to minimise the internal noise disturbance to occupants, to the reasonable satisfaction of the Council; and

6. The rear upper floor windows to the dwellings shall have fixed obscure glazing to a height not less than 1.7 metres above the finished upper floor level, unless otherwise approved by the Council.