What is low density — Living Australia Pty Ltd v City of West Torrens (No. 1) [2018] SAERDC 38

LG Leader December 2018

Living Australia appealed the decision of the Council to refuse a land division to divide two existing allotments into three. It also applied for three dwellings for the associated allotments which were also refused, confirming the legal position established in the decision of City of Port Adelaide v C Moseley [2008] SASC 88. In this hearing the contentious issue was the density and shape of each allotment and their relationship to the prevailing character of the locality.

The land was located within the Residential Zone in the Lockleys Character Policy Area 25 (“PA 25”) of the City of West Torrens Development Plan. PA 25 did not provide a minimum allotment size or frontage for land division. It was silent on this fact. Land divisions were also not non-complying within PA 25.

The Council’s position was that PA 25 limited any land division unless it was consistent with the existing pattern of division and maintained the “very low density” character of PA 25.

In considering this argument there were two key factors that were analysed to determine the appropriateness of the proposed allotments. One was allotment size and the other was allotment frontage.

In the absence of a numerical figure, the Court used an analysis of allotment sizes within PA 25. It also looked for guidance from other similar Policy Areas in the Development Plan to reach a conclusion that the proposed allotments, (being 511 square metres each), could be considered “very low density” within the meaning of PA 25. The Court took a similar approach to assessing the frontages of each allotment and found that the proposed frontages of 11.18 metres were inconsistent with the prevailing allotment pattern in PA 25. It was because of the narrow frontages that the allotments failed.

This case is somewhat unique as PA 25 is a small policy area that contains a small number of allotments and dwellings, making it easier to analyse the pattern of division in its entirety. It does provide a process that councils can use to determine the meanings of “low density” or, as in this case, “very low density”, especially in the absence of numerical standards in the Development Plan. The decision gives weight to a council refusing land divisions in areas that have a strong prevailing character where the land division is at odds with that prevailing character.

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