Parkins v Adelaide Hills Council Assessment Manager  SAERDC 12, delivered by a Commissioner of the Environment, Resources and Development Court on 1 August 2022, is one of the first Court decisions in a planning merits appeal dealing with a development application lodged under the “Planning and Design Code” (Code).
The applicant for consent appealed against a refusal by a Council Assessment Manager to grant planning and land division consents for a proposed division of land (1 into 2) within the Rural Neighbourhood Zone (Zone) and Adelaide Hills Subzone (Subzone). The proposed division contemplated (1) a site area materially less than the minimum expressed in a Subzone Designated Performance Feature for one of the proposed allotments, and (2) a battle-axe allotment for the other proposed allotment. The primary planning issues were the size and shape of the proposed allotments and whether they were consistent with the established pattern of division within the locality.
The Court considered, amongst other things, the role of a Designated Performance Feature (DPF) in satisfying the corresponding Performance Outcome (PO) in the context of code-assessed land division within the Subzone.
Despite the site area of the smaller of the two proposed allotments (1114 square metres) being materially less than that sought in Subzone DPF 2.1 (being the median site area of all allotments within 200m of the site – i.e. somewhere between approximately 3117.7 and 3148 square metres) the corresponding PO was met.
The Court ultimately granted planning and land division consent for the proposed division. Its decision makes several important comments about DPFs and POs, including that:
- a DPF ‘is advisory’ guidance as one possible way of satisfying a corresponding PO. It is however not the only way a PO can be satisfied ;
- the Code’s “Rules of Interpretation” are silent on the issue of departure from a quantitative provision in a DPF ; and
- departure from a quantitative provision in a PDF is not, itself, grounds for refusal although it is something that cannot be ignored .
The applicant for consent sought to divide one allotment developed with two lawful dwellings to provide two allotments each containing one lawful dwelling. The proposed allotment sizes were approximately 1114 and 4745 square metres. The larger allotment was set to be a battle axe allotment.
It was not in dispute that the proposed allotments would be suitable for the intended residential land use or that access for each proposed allotment would be appropriate. Further, native vegetation would not be impacted and the streetscape would not change as a result of the division.
A Subzone DPF provided that the minimum site area for allotments should be the median site area of all allotments within 200m of the site which, in this case, was said by the expert town planning witnesses to be somewhere between approximately 3117.7 and 3148 square metres. The corresponding PO sought an outcome that allotments created for residential purposes be consistent with the established pattern of division surrounding the development site to maintain local character and amenity.
The main issues for consideration by the Court were:
- whether the proposed battle axe allotment was appropriate within the established pattern of division in the Subzone/Zone; and
- whether the size of the smallest allotment was too great a departure from the minimum allotment size expressed in Subzone DPF 2.1 in the context of the established pattern of division and having regard to the circumstances of the subject land.
Reasoning of the Court
Satisfaction of the prescribed minimum allotment sizes in Subzone and Zone DPFs 2.1 and 8.1 respectively were not a necessary pre-condition to satisfaction of the corresponding POs relating to the established pattern of division. The Court utilised a wholistic approach to consider other alternative aspects of the proposed division which spoke to satisfaction of the local allotment pattern and distribution.
The battle axe allotment shape was not inconsistent with, and in fact, contributed to, the current pattern of division within the locality.
Further, the established pattern of allotments in the locality included allotments smaller than the minimum site specified under the Code with three abutting the subject site and two diagonally to the north. Taken in conjunction with the battle axe allotment, the proposed land division contributed appropriately to the established pattern of division. Further, the division would neither alter the density of development nor would it change the character and amenity of the area.
The smallest proposed allotment still maintained an appropriate frontage and it was considered that the division would only have the effect “of superimposing a new cadastre over the two lawfully existing dwellings” with “no external impacts.”
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 Parkins v Adelaide Hills Council Assessment Manager  SAERDC 12 .
 Ibid .
 Ibid .
 Ibid .