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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 22 June 1999
Decision of Commissioner Hodgson
Respondent CITY OF HOLDFAST BAY:
Counsel: MR S HENRY - Solicitors: STUART HENRY BARRISTER
ERD-98-1429
Judgment No. OE4
5 February 1999
[1999] SAERDC 4 of 1999
CJ & JE ACKLAND v CITY OF HOLDFAST BAY
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This is an appeal against a decision by the City of Holdfast Bay ("the Council") to refuse provisional development plan consent to an application by Mr C.E. and Mrs J.E. Ackland ("the appellants"), which application sought to vary the design of a front fence forming part of a residential development previously approved by the Council in February 1997.
2 In August 1996 the appellants made application to the Council for approval of a residential development scheme on land at 69-71 Partridge Street, Glenelg. The proposal involved the construction of three dwellings on a site created by the demolition of an existing dwelling at 69 Partridge Street and the utilization of the resultant vacant land together with land to the rear of a dwelling at 71 Partridge Street, owned and occupied by the appellants. The plans submitted to the Council with the application indicated that there would be a driveway between a new dwelling to be constructed on the front portion of the vacant land at 69 Partridge Street and the appellants' existing dwelling at 71 Partridge Street, which driveway would provide access to two further dwellings constructed to the rear of the dwellings fronting Partridge Street. Also shown on the plans was a serpentine wall, some 1.8 metres high, located in front of the foremost dwelling at 69 Partridge Street, the form of which wall corresponded with a wall in front of the appellants' existing dwelling at 71 Partridge Street, that wall, on the evidence of Mr Ackland, having been approved by the Council more than ten years previously.
3 It is unnecessary, for the purpose of these proceedings, to traverse the protracted negotiations which subsequently transpired, involving the appellants, the Council, and a number of neighbours who had lodged objections to the proposal, other than to note that, prior to final consideration and approval of those plans by the Council, the form of the wall to be located in front of the dwelling at 69 Partridge Street was changed by the appellants, being shown on the approved plans as a straight masonry wall.
4 By decision notification form dated 12 February 1997, the Council advised the appellants that the amended proposal had been granted provisional development plan consent, subject to a number of conditions, the first of these being:
"1. That the design and siting of all buildings and structures and site works be as shown on the revised plans. ..... submitted to and approved by Council unless varied by any subsequent conditions imposed therein."
The appellants then proceeded with the construction of the new dwellings.
5 It was common ground between the parties that in May, 1998, a front wall was erected in front of the new dwelling at 69 Partridge Street, which wall took the same serpentine form as had been shown in the original plans submitted to Council, rather than the straight form shown in the approved plans.
6 On 14 May, 1998, a Notice was issued by the Council, pursuant to Section 84 of the Development Act, which Notice required demolition of the wall. The appellants appealed against that Notice, and this Court subsequently suspended the operation of the directions contained in the Notice pending consideration by the Council of an application to vary the approved plans to the extent necessary to allow the wall as constructed.
7 On 1 September, 1998, the appellants lodged an application which sought
(a) approval of the wall as constructed;
(b) approval to delete a screen fence proposed for the northern boundary of the subject land, on the basis that any potential for overlooking of the adjoining property (67 Partridge Street) had already been addressed by the construction of a screen fence by the owner of that property.
8 The Council determined that the application was for a Category 3 Development, pursuant to Section 38(5) of the Development Act 1993, and gave notice of it accordingly. Three representations were made in response to that notification, all opposing the proposal. When the Council considered the application on 13 October 1998, it had before it a report from its Acting Director of Planning and Development, recommending that the application be approved, and commenting that:
" .... the style of fencing adjoining this section of Partridge Street between Pier Street and Broadway is varied both in height and materials. .... it is considered that the subject fence as constructed is not so unsightly as to detrimentally affect the visual amenity of the area."
9 By decision notification form dated 13 October 1998, the Council advised that it has refused the application, its reasons for refusal being as follows:
"1. That after consideration of the provisions of the Development Plan the application be Refused Provisional Development Plan Consent for the reasons that it is contrary to the provisions of the Metropolitan Adelaide and City of Glenelg parts of the City of Glenelg Development Plan."
10 On 29 October, 1998, the appellants appealed to this Court against that refusal.
11 On 20 November 1998, the Court ordered that Ms B Ramsey, who had made a representation to the Council opposing the proposal, be joined as a party to the appeal. Subsequently, Ms Ramsay applied to the Court for leave to withdraw from the proceedings, which leave was granted on 12 January 1999.
12 A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act, 1993 did not produce a compromise or settlement and accordingly, the matter proceeded to a hearing.
13 At the hearing, the Council was represented by Mr S Henry, while the appellants were represented by Mr Ackland. The Court received a number of exhibits, conducted a view of the subject land and its locality, and heard evidence from Mr P Hignett, a qualified and experienced architect and urban designer, and Mr and Mrs Ackland.
14 At the commencement of proceedings Mr Henry advised the Court that the Council has resolved not to defend that part of the appeal which related to the side screen fence. On the basis of the view and of correspondence from Ms Ramsay, the owner of 67 Partridge Street, tendered in evidence, I am satisfied that any potential overlooking along the northern boundary of the subject land has been addressed. There will be an order upholding the appeal in this respect.
15 The wall the subject of these proceedings is constructed of styrene foam braced with steel posts, and subsequently has been rendered and painted. Its outward appearance is that of a masonry wall.
16 Paragraph 4 of Schedule 3 to the Development Regulations 1993 relevantly excludes, from the definition of "development" in the Development Act,
"(e) a fence not exceeding two metres in height (measured from the lower of the two adjoining finished ground levels) other than -
(iii) a masonry fence that exceeds (or would exceed) one metre in height (measured from the lower of the two adjoining finished ground levels),....."
17 Given the lightweight construction of the wall in question, it is, perhaps, arguable whether it should properly be classified as a masonry fence, thereby requiring provisional development plan consent in its own right, or whether it should be classified as a non-masonry fence less than two metres in height, in which case such consent normally would not be required. However, inasmuch as a wall, albeit of a different appearance, formed part of the development proposal approved by the Council, it is open to the Council, having regard to sub-sections 39(6) and (7) of the Development Act, to seek an application to vary this particular element of the approved development.
18 Mr Henry submitted that the test which should be applied by the Court in assessing the proposal was not simply whether the wall as constructed was acceptable, but whether it represented an improvement over that which the Council had approved. Mr Henry founded this submission on the fact that the original residential development scheme approved by the Council was categorised as a "non-complying" form of development on the basis that the appellants' residence at 71 Partridge Street (including the land to the rear forming the site for one of the three new dwellings) lay within a Local Centre Zone, within which a dwelling was listed as non-complying. Inasmuch as the concurrence of the Development Assessment Commission had been required, pursuant to sub-section 35(3) of the Development Act, for approval of the original proposal, argued Mr Henry, any variation of the approved scheme should be approved only if it constituted an improvement over the original proposal, rather than merely being satisfactory in the view of the Court.
19 I do not find Mr Henry's submission in this regard persuasive. Applications to vary an existing development authorization are governed by sub-sections 39 (6) and (7) of the Development Act, which sub-sections are in the following terms:
"(6) Subject to subsection (7), a person may seek the variation of a development authorisation previously given under this Act."
"(7) An application to which subsection (6) applies -
(a) may only be made if the relevant authorisation is still operative; and
(b) will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation, be treated as a new application for development authorisation (but, unless otherwise approved by the relevant authority, the application for variation cannot relate to any condition imposed with respect to the original authorisation nor extend the period for which the relevant authorisation remains operative)."
Where an application to vary an existing development authorization involves a development which was categorized, for the purpose of that authorization, as non-complying, it seems to me that the concurrence requirements of sub-section 35 (3) have application only in those circumstances where the application to vary is such as to alter that aspect or those aspects of the development which rendered it non-complying in the first instance. Where the variation is not of this kind, it is open to the relevant planning authority (in this case, the Council) to deal with the application to vary on its merits, albeit that it is still required, in my view, to have regard to the totality of the development for which approval was granted.
20 The appellants' original residential development proposal was categorized by the Council as non-complying development as a consequence of portion of the subject land lying within the Local Centre Zone, within which dwellings are listed as non-complying. The wall the subject of these proceedings is located wholly within the Residential R400 Zone, and while it remains necessary to assess it in the context of the whole of the development for which approval was granted in 1997, there is, in my view, no basis for an argument that that assessment should be influenced by the non-complying status of the original proposal.
21 The test urged on me by Mr Henry, namely, that the subject proposal, to be approved, should represent an improvement over that for which approval was originally obtained, does not appear to be supported by any provisions of the Development Act, or by any provisions of the relevant Development Plan. That being the case, I can accord little, if any, weight, to this submission.
22 Which provisions of the Development Plan are relevant to assessment of the subject proposal? As Mr Hignett observed in evidence, there are no provisions of the relevant Development Plan which relate specifically to fences or walls. However, insofar as I have already concluded that a wall on the front boundary of the land at 69 Partridge Street comprised part of the development proposal submitted to the Council in 1996, it is, I think, reasonable to conclude that such a wall (whether in the form for which approval was granted, or in the form for which consent is now sought) is subsumed under the overall classification of the original development as "three two-storey group dwellings with associated landscaping, garages and carparking."
23 On that basis, the following Development Plan provisions appear relevant:
"RESIDENTIAL R(400) ZONE
Principle 7
The character of the area of Glenelg South should be derived from:
(a) maintenance of the existing diversity and character of housing;
(b) new buildings including dwellings constructed in Partridge Street, Broadway, Moseley Street, and Pier Street, and alterations to existing dwellings, which are compatible with the height, scale, proportions and materials of construction of existing dwellings and maintain the consistent historic character of the area; ....
GLENELG (CITY)
"Objective 5: Compatibility of new buildings with the desired character of the area in which building development takes place."
"Objective 14: Protection of the amenity enjoyed by existing residents and other users of land."
"Principle 70 Each building should be located and designed in respect of its:
(a) height;
(b) size;
(c) scale;
(d) colour;
(e) form;
(f) siting;
(g) architectural style; and
(h) materials of construction,
in a manner consistent with the desired character described by the objectives or principles of development control for the zone in which it is situated, or otherwise, the predominant character of other buildings in the locality or its utilization."
METROPOLITAN ADELAIDE
"Objective 41: The amenity of localities not impaired by the appearance of land, buildings and objects."
"Principle 9 Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."
24 Taken together, these provisions seek the maintenance of the existing character and amenity of localities within the Council area. Zone Principle 7 is more specific in addressing the character of Glenelg South, which includes Partridge Street, and calls for
" .... (a) maintenance of the existing diversity and character of housing;
(b) new buildings .... which are compatible with the height, scale, proportions and materials of construction of existing dwellings and maintain the consistent historic character of the area; ...."
25 I have to admit to some difficulty in reconciling "maintenance of the existing diversity .... of housing" and "new buildings .... which .... maintain the consistent historic character of the area." While there is a substantial number of late 19th century dwellings in that part of Partridge Street between Pier Street and Broadway, there is little consistency in their design or appearance, and dwellings from the 1920's, 1950's and 1960's are also in evidence. Similarly, while there is a preponderance of brush fencing to front boundaries, brick walls of various heights and colours, "pier and spear", wire mesh and colorbond front fences also exist, as does a serpentine masonry wall on the front boundary of 71 Partridge Street.
26 Mr Hignett, in evidence, was of the opinion that the subject wall did not comply with Zone Principle 7 because it did not relate to the predominant character of housing in, or the historic character of, the locality. A compromise proposal, suggested by Mr Hignett, entailed the provision of palings across the street frontage concave areas of the wall, with both the wall and the palings painted the same colour, which, in Mr Hignett's view, should be a darker heritage colour. Mr Hignett placed some store by the need, as he saw it, to create a visual link between the two-storey dwelling on the subject land and adjoining single-storey development, particularly having regard to the fact that fences within the locality were predominantly 1.5m high and dark in colour. A wall of a darker colour would also, in his view, serve to draw attention away from the two-storey scale of the dwelling at 69 Partridge Street, most dwellings within the locality being single-storey.
27 I am not of the view that the approach suggested by Mr Hignett would establish, in visual terms, a more satisfactory link with adjoining development, or with other fencing in the locality. The scale relationship between the dwelling at 69 Partridge Street and that adjoining it to the north (No. 67) is, in my view, acceptable. Moreover, fencing to the front boundary of 67 Partridge Street is of an open wire mesh design, producing a degree of transparency less typical of fencing in Partridge Street than that on the subject land.
28 The development which has been undertaken by the appellants at 69 and 71 Partridge Street has been designed to be viewed as an entity: the central axis of the development is the driveway between the dwellings at 69 and 71, and while the appellants' dwelling at 71, being older, is of a design different to the three new dwellings, the use of a similar colour scheme for the exterior of all four dwellings has served to create a unity which is reinforced by the use of front walling, to both 69 and 71, which is of a uniform design and colour. Adoption of Mr Hignett's suggestion would, as I see it, disrupt the symmetry of the completed development and at the same time introduce a new element which would sit uncomfortably with the adjoining dwellings and their existing front fencing/walling. I am reinforced in this view by the evidence of Mr Ackland (which was not disputed) that the colour scheme for the approved development, which scheme extends to the wall the subject of these proceedings, was arrived at in consultation with the Council.
29 On the basis of my reasoning above, I am of the view that substitution of a straight masonry wall at 69 Partridge Street, even of the same colour as the existing wall, would also disrupt the symmetry of the completed development, and represent a less satisfactory design solution than the existing wall.
30 It is established law that, when considering an application for approval to do that which has already been done without approval, the fact that unlawful development has been undertaken should be ignored, and the application considered as if the development to which it applied is yet to be undertaken: Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321. The evidence of Mr Ackland was that the subject wall could fairly readily be demolished, albeit that construction of a replacement masonry wall would be a significant cost. Be that as it may, were I to conclude that the wall as constructed was unacceptable, having regard to the relevant provisions of the Development Plan, the costs entailed in its demolition and replacement would not constitute a basis upon which to decide otherwise.
31 However, I do not so conclude. The overall design concept for the appellants' residential development depends, to a significant extent, on the symmetry and cohesion created by:
(a) the arrangement of the four dwellings around an axis formed by the central driveway;
(b) the use of matching walling to the frontages on either side of that driveway; and
(c) the use of a consistent colour scheme throughout the development.
Substitution of a straight wall for the wall the subject of these proceedings, or the modification of the latter in the manner suggested by Mr Hignett would, as I see it, produce a result less in keeping with the established character of the locality than would retention of the serpentine wall. Having regard to the relationship between the latter and the remainder of the appellants' development, which relationship is, in my view, harmonious, and to the diversity of fence/wall design in the immediate locality, I have concluded that the subject proposal is generally consistent with the relevant provisions of the Development Plan, and warrants provisional development plan consent.
32 There will be an order accordingly.
33 One final matter requires some attention. The Notice issued by the Council on 14 May 1998 remains in force, albeit that the operation of the directions contained in that Notice was suspended by this Court pending the outcome of the appellants' application for approval of the subject wall (including the ensuing appeal proceedings). In the light of my decision in the latter proceedings, the Section 84 Notice is left with no work to do. However, as the appeal against that notice (ERDC No. 692/98) was not before me, it is not open to me to quash the Notice. The parties are requested to return to me at 9.30am on Thursday 18 February 1999 to make submissions concerning the appeal in 692/98.
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