Smart and Byrne v The Barossa Council No ERD-98-1221, ERD-99-100 Judgment No OE29 [1999] SAERDC 29 (10 September 1999)

Last Updated: 20 September 1999

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hutchings

Hearing

21/04/99, 23/06/99, 20/07/99, 10/09/99.

Catchwords

Fence refused at Nuriootpa - western entry to town - traffic safety - sight-lines inadequate - refused. Section 84 Notice further suspended - further site inspection and hearings - agreement reached by parties satisfactory to Court - amended plan granted consent - s84 Notice varied.

Materials Considered

• Development Act 1993 s84;
• Environment Resources and Development Court Act 1993 s16;
• Development Regulations 1993 Sch3(4)(e)(ii), referred to.
• Ladhams v State Planning Authority (11982) 30 SASR 513 , considered.

Representation

Appellant ROBERT V SMART:
Counsel: MR JAMIE BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Appellant R V SMART:
Counsel: MR JAMIE BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Appellant YVONNE D BYRNE:
Counsel: MR JAMIE BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Appellant Y D BYRNE:
Counsel: MR JAMIE BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent THE BAROSSA COUNCIL:
Counsel: MR JAMES HILDITCH - Solicitors: WARD & PARTNERS

Respondent THE BAROSSA COUNCIL:
Counsel: MR JAMES HILDITCH - Solicitors: WARD & PARTNERS

ERD-98-1221, ERD-99-100

Judgment No. OE29

10 September 1999

ROBERT V SMART & YVONNE D BYRNE

v

THE BAROSSA COUNCIL

[1999] SAERDC 29

ERDC No. 1221 of 1998 and 100 of 1999

THE COURT DELIVERED THE FOLLOWING DECISION:

1 This matter concerns a fence at Nuriootpa. On 30th October, 1998, Mr R V Smart on behalf of himself and Ms Y D Byrne, applied to The Barossa Council for consent for a front fence at 41 Gawler Street, Nuriootpa. This application was lodged as a result of the issuing of a notice pursuant to Section 84 of the Development Act, 1993 which notice is in suspension. On 13/1/99, the Council refused the application because:

"the proposed development does not conform with Schedule 3, Sub-clause 4(1)(e)(ii) of the Development Regulations, 1993 and the Principles of Development Control 2, 27 and 29 contained within the authorised Development Plan for the District Council of Angaston."

2 Mr Smart and Ms Byrne appealed. The matter came to the conference required by Section 16 of the Environment, Resources and Development Act, 1993 but no compromise was reached so the matter came to this inquiry into its merits at which time Mr James Hilditch, of counsel, represented the Council and Mr Smart, himself and Ms Byrne. Mr Smart also gave evidence as did Mr David Read, a qualified planner and Ms Melissa Mellen, MIE (Aust), who specializes in traffic engineering.

The Subject Land

3 The subject land adjoins the northernmost curve of the "S" bend where Gawler Road becomes Greenock Road. These roads form one of the main western entries into the Nuriootpa town area and to its main street. Opposite the subject land Gawler Road intersects with Fifth Avenue (Figure 1). Warnecke Street does not have a useable junction with Greenock Road. There appears to be the yard of a factory at that junction. There is another factory immediately to the west which makes tanks for wineries. Elsewhere in the locality of the subject land are detached dwellings of various ages, shapes and sizes. The Gawler/Greenock Roads carry 5,300 vehicles per day.

4 There is a detached dwelling on the subject land. It is of a "between the wars" bungalow style and its front verandah is but a few metres from the subject land's boundary with the road. The fence for which consent is sought was described by Mr Read thus:

" .... (It) is of solid masonry construction with a variation of height above ground level ranging between 1.6 metres at the lowest point to 2.1 metres to the top of the pillar and maintains a total length of 23.3 metres. The fence has a slight angle (approximately 47 degrees) as it follows the alignment of the boundaries forming the front of the property".

The Development Plan

5 The subject land is within the living area shown on Map An/1 - the Angaston (DC) Nuriootpa Structure Plan; more particularly within the N10 - Nuriootpa Residential Zone. This zone is "primarily for residential use" as is the N11 Zone to its north. The Structure Plan delineates Gawler/Greenock Roads as a "local road". However, Map BVR/3 - Road Network, delineates it as a Secondary Arterial Road. Mr Read was not able to explain why the road has two different classifications. Be that as it may, the fact is the road is important in the planning scheme of things, for both its local and district traffic distribution functions.

6 General Objective 18 within the Barossa Valley provisions of the Angaston (DC) Plan states:

"Provision of a safe and efficient vehicular movement system in accordance with a hierarchy of roads."

General Principle of Development Control 4 states:

"Development, including the establishment of outdoor advertisements, should be located and designed so that it does not interfere with road traffic safety"

and Principles 27 and 29 under the heading "Movement of People and Goods" state:

"27 Development should not impair the function of roads, particularly those identified on Map BVR/3 as being arterial in status."

"29 Access to development adjacent to roads should not interfere with the free flow of traffic on such roads."

General Principle of Development Control 2 is also noted; viz,

"Development should take place in a manner which will not interfere with the effective and proper use of any other land in the vicinity and which will not prevent the attainment of the provisions relating to that other land."

These draw attention to the fact that within the overall planning picture for any town, district or region, the relationships between development on the one hand and transport and traffic on the other, are crucial.

7 The reasons for the Council's refusal relate solely to concerns that the proposed development will lead to an unsafe traffic situation. As noted above, the fence has heights between 1.6 and 2.1 metres (to the tops of pillars) and has a length of 23.3 metres. In other words, it occupies a considerable length of the subject land's frontage as it turns the obtuse angle around the corner opposite Fifth Street. Between the pillars, the fence forms a solid wall which is never less than 1.5 metres. It seems to be solidly made and is of a neat and workmanlike appearance. It would however, appear to obscure the views of drivers travelling west and of those manoeuvring in and out of the dwellings immediately east and north-east of the subject land. Whether or not though, this obscuration is such as to cause safety hazards and hence contravene the provisions of the Plan is not something about which a decision can be made after lay observation or even observation by those with expertise in examining landscapes, streetscapes and physical phenonoma generally such as town planners, architects, landscape architects and civil engineers. The safety of life and limb is at stake so those with detailed and specialist training is traffic engineering are needed. To this end, the Court was assisted by Ms Mellen who is such a person. She carefully evaluated the situation in the vicinity of the subject land and concluded that "in terms of traffic safety, therefore, I am unable to support the proposed development".

8 Of course, she was the only traffic engineer called to give evidence but given her careful explanations, both on site and in Court, of her methodology and reasoning, I have no cause to put aside her conclusions.

9 Mr Smart took me to a number of places in Nuriootpa and Tanunda to illustrate situations that, in his opinion, were or had the potential to be, hazardous to traffic. I was in no position to conclude one way or the other. In any event, I was not persuaded that they were relevant. I can understand Mr Smart's motives in showing these to me and I appreciate the conscientious manner in which he did so. However, even if what he pointed out to me were traffic hazards that does not assist his arguments. Trite as it may be to say so, "two wrongs do not make a right", or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions.

10 Fences on corners are often "vexed questions". To this end, the development control system by way of the Development Regulations, 1993 has placed fences over one metre in height within the ambit of development. Schedule 3(4)(e)(ii) sets out the following as development:

"a fence that exceeds (or would exceed) one metre in height within six metres of the intersection of two boundaries of land where those boundaries both face a road, other than where a 4 x 4 metre corner cut-off has already been provided (and is to be preserved);"

The proposal in this matter is a perfect example of this question.

Conclusion

11 Having carefully considered the provisions of the Development Plan and the circumstances of the subject land and its surrounds, I can but conclude that the proposed development is contrary to them. In reaching this conclusion I have also had regard to Mr Smart's own position and the manner in which this matter came to this hearing but on the issue of hardship, the Court is constrained by the authorities such as White J (Full Court) - Ladhams v State Planning Authority (1982) 30 SASR 513.

12 It is the decision of the Court that Development Application number 960/346/99 is refused and the decision of the Council confirmed.

13 There remains the matter of the Notice issued pursuant to Section 84 of the Development Act. This Notice is in suspension and I further suspend it until Wednesday 23 June, 1999 at 10.30am, at which time I ask the parties to appear before me as to the terms of the order in that matter.

14 On 23 June and on 20 July on-site, further hearings were held, further submissions made and the Section 84 Notice was further suspended. The parties agreed to confer and return on 10 September, 1999

_______________________________

15 The parties returned as requested, at which time Mr Jamie Botten, of counsel, represented Mr Smart and Ms Byrne. He tabled a plan illustrating amendments to the fence - Option A and Option B (Exhibit A2). I was advised that Option A was acceptable to the Council.

16 On the basis of submissions, it is the decision of the Court:

17 Firstly, that provisional development plan consent is granted to the development which is the subject of this matter (Development No. 960/346/99), being for the erection of a fence in the form of Option A on Exhibit A2 at 41 Gawler Street, Nuriootpa, with one condition:

The wrought iron component of the fence shall be painted cream or red and the masonry component, cream.

18 Secondly, with regard to the Notice issued pursuant to section 84 of the Development Act, that Notice shall now read:

The existing fence shall be altered to the form of the fence as per Option A on Exhibit A2. This alteration shall occur within eight weeks from the date of this order.