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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 6 September 1999
Decision of Commissioner Hodgson
Respondent CORPORATION OF THE CITY OF NORWOOD PAYNEHAM & ST PETERS:
Counsel: MR K TREDREA WITH MS E SHAW - Solicitors: NORMAN WATERHOUSE
ERD-99-612
Judgment No. OE49
6 August 1999
VILLAPLEX P/L t/as MORGAN & HANSEN
v
CORPORATION OF THE CITY OF NORWOOD, PAYNEHAM &
ST PETERS
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This is an appeal against a decision by the City of Norwood, Payneham and St Peters ("the Council") to refuse to grant provisional development plan consent to an application under the Development Act 1993 by the appellant. Some relevant details are set out hereunder:
Date of application: 23 November 1998
Subject land: 16 Sydenham Road, Norwood
Certificate of Title: Volume 4263 Folio 164
Hundred of Adelaide
Existing use: Office/Showroom
Proposed Development: Demolition of existing building and erection of three two-storey row dwellings and two two-storey semi-detached dwellings
Relevant Authority: City of Norwood, Payneham and St Peters
Relevant Development Plan: Kensington and Norwood (City) 26 June 1997
Relevant Zone: Mixed Use A Zone
Date of Decision: 23 April 1999
Appeal lodged: 28 April 1999
The Subject Land
2 The subject land, which is known as 16 Sydenham Road, Norwood, is situated on the southern corner of Sydenham Road and Muller Street, Norwood. It is rectangular in shape, having a frontage to Sydenham Road of 21.26m and a depth along Muller Street of 33.4m. Its overall area is approximately 710m2. On the land is located a single storey building, originally a corner shop and residence, the principal part which is approximately 100 years old, although there is evidence of subsequent additions to the rear. The building is presently used for office and showroom purposes, and is in poor condition. To the rear of the dwelling, accessible from Muller Street, is a driveway and carport providing undercover parking for three vehicles.
The Locality
3 Planning evidence in this matter was given by three qualified and experienced planners, Mr P Brunning, an officer of the respondent Council, who appeared under subpoena, and Mr G Burns and Mr D Marchetti, both town planning consultants. Mr Burns defined a locality, for the purpose of his evidence, which extended approximately 100m north and south of the subject land along Sydenham Road, and a similar distance east of the land, along Muller Street. Mr Brunning, in evidence, considered the locality defined by Mr Burns to be appropriate.
4 Mr Marchetti, for the purpose of his evidence, defined a locality which extended only some 20m to the north of the subject land, 60m to the south, and about 100m to the east, the latter taking in residential development along both Muller Street and Sheldon Street, the next street to the south.
5 That part of the locality along Sydenham Road falls within the Mixed Use A Zone depicted on Map KeN/3 in the Development Plan for the City of Kensington and Norwood, whereas that part east of the subject land falls within the Residential Zone depicted on the same map. The boundary between the two zones lies primarily to the rear of allotments on the eastern side of Sydenham Road, although the Residential Zone extends through to Sydenham Road a short distance south of the subject land, to take in a small group of new dwellings facing that road.
6 On Sydenham Road, to the immediate south of the subject land, is another cottage, formerly used as a residence, but now converted to offices. The cottage is located about 2.0m south of the common boundary with the subject land. To the north, on the corner of Sydenham Road and Muller Street, is a two-storey office/showroom building which appears to be vacant. To the north of that building, also with a frontage to Sydenham Road, is a vacant allotment. On 14 May 1999 the Council granted consent for a proposal to build 9 two-storey dwellings on this land.
7 Directly opposite the subject land, on the western side of Sydenham Road, development consists primarily of office/commercial uses, either in old buildings converted for the purpose, or in purpose-built structures. At the southern end of the locality defined by Mr Burns, on the corner of Sydenham Road and Mattingly Lane, a group of 5 two-storey semi-detached dwellings has recently been constructed. Approval for this development was granted in May 1998.
8 Development on the northern side of Muller Street is almost entirely non-residential, with the exception of a group of six two-storey townhouses which back onto Muller Street. The southern side of Muller Street (with the exception of the subject land), consists solely of residential development, mainly single-storey cottages built almost up to the road reserve. The dwelling to the immediate east of the subject land is a single-storey cottage with a driveway (private road) between that building and the eastern boundary of the subject land. Development in Sheldon Street is entirely residential.
9 Sydenham Road is designated on the Kensington and Norwood (City) Structure Plan as a collector road/road crossing. It carries significant volumes of traffic between The Parade and Magill Road, estimated by Transport SA, in 1997, to be some 5,600 vehicles per day.
The Proposal
10 The proposal entails the demolition of the existing commercial building and the construction of five two-storey dwellings, three with frontage to Sydenham Road and two with frontage to Muller Street. The three dwellings fronting Sydenham Road (classified as row dwellings) are proposed to be built side boundary to side boundary, and be set back 1.8m from Sydenham Road. The two dwellings fronting Muller Street (classified as semi-detached dwellings) are proposed to be set back 1.0m and 1.9m from that street. The easternmost dwelling will abut the private road between the subject land and the cottage to its immediate east.
11 Each dwelling is to have a double garage accessed respectively from Sydenham Road or Muller Street, and, also at ground level, a dining/kitchen/living room, laundry and toilet. The upstairs level is to contain three bedrooms, two of which will face the road, the third facing the rear yard. The latter bedrooms are proposed to have window sill heights 1.6m above floor level. Also on the upper levels will be an open plan "gallery" at the top of the stairs, together with the bathroom and toilet. The ground floor level of each dwelling will have a floor area of 55.28m2 (excluding the garage) and the upper floor, 64.38m2. The floor area of the garage is to be 35.3m2.
12 Private open space is to be provided at the rear of each dwelling, accessible via sliding doors leading from the lounge room. Areas range from 29.0m2 to 42.5m2.
13 The height of each dwelling is to be 6.7m, by comparison with the ridge heights of the adjoining cottages in Sydenham Road and Muller Street, which are 6.2m and 5.8m respectively.
14 External walling material is to be smooth cement render, painted "Light Biscuit".
15 Assuming a total site area of 710m2, the average site area per dwelling is 142m2.
Relevant Development Plan Provisions
16 As I have said, the subject land is located within the Mixed Use A Zone. The objective for that zone is as follows:
Mixed Use A Zone
"Objective 1: Development providing a range of uses including small-scale offices, warehouses and retail showrooms and residential use."
The discussion under this objective includes the following:
"New buildings within the zone should be of a scale which represents existing development, in particular the scale of former and existing residential structures within the area. Development on Magill Road and Sydenham Road frontages should be of larger scale and bulk."
17 Relevant zone principles are:
"Principle 1 Development in the Mixed Use A Zone should be primarily for offices, retail showrooms and warehouses, with residential development."
"Principle 2 Development within the Mixed Use A Zone nearby to the Residential Zone or Historic (Conservation) Zone - Residential should be compatible with existing or future residential buildings in terms of scale and bulk and should not be for land uses which by their operation will adversely affect the amenity of the residential land."
"Principle 8 Development in the Mixed Use A Zone should not exceed two-storeys in height above mean natural ground level except for residential development with frontage(s) to arterial roads, which should not exceed three-storeys in height above mean natural ground level."
"Principle 9 The average site area per dwelling unit for residential development in the Mixed Use A Zone should not be less than 120 square metres."
18 Other Development Plan provisions of particular relevance are as follows:
Kensington and Norwood (City)
"Objective 1: Realisation of opportunities for residential development taking advantage of existing infrastructure and proximity to the facilities of the City of Adelaide."
"Objective 2: A high level of residential amenity and the maintenance and protection of existing residential uses in residential zones."
"Objective 3: Increased numbers of households and residents within the City of Kensington and Norwood in order to maintain support for retail and community facilities and achieve a population target of 10 000 people by the year 2000."
"Objective 10: Development which provides adequate and safe car parking appropriate to the demands generated."
"Principle 14 In residential development the average site area per dwelling unit should not be less than the area prescribed for the relevant zone or policy area.... [not relevant]."
"Principle 15 The orientation and layout of residential buildings should take maximum advantage of sunlight by way of north-facing windows and doors to living areas."
"Principle 16 Dwellings in the Residential and Historic (Conservation) - Residential Zones except those above ground level in residential flat buildings should be provided with directly accessible private open space at ground level of a minimum area of 40 square metres (except in the Marryatville/Heathpool Policy Area other than the block bounded by Dudley, Burwash and Clapton Roads, where the minimum area should be 60 square metres) with no one side being less than four metres in length, such space being arranged to take maximum advantage of sunlight, to take account of outlook, natural site features and neighbouring buildings or open space, and to form an extension of the function of the dwelling. Dwellings not located in the Residential or Historic (Conservation) - Residential Zones should be provided with private open space of appropriate areas, dimensions and outlook."
"Principle 26 Buildings and structures should have a visual bulk and architectural scale consistent with structures on adjoining or nearby land and should not visually dominate surrounding spaces, unless the zone or policy area objectives or principles of development control provide otherwise."
"Principle 27 Buildings, structures and associated component parts should not be higher than the number of storeys above mean natural ground level prescribed for the relevant zone or policy area. For the purposes of this principle 'storey' refers to the space between a floor and the next floor above, or if there is no floor above, the ceiling above, and a mezzanine floor level shall be regarded as a floor. A space with a floor located below natural ground level shall be regarded as a storey if greater than one metre of the height between the floor level and the floor level above is above natural ground level."
"Principle 28 The front and side set-backs of buildings and their relationship to landscaped space should be consistent with the existing predominant pattern in the locality unless the zone or policy area objectives or principles of development control provide otherwise. Development on corner sites should reinforce the edges of the subject sites with building forms."
"Principle 29 New buildings should complement the urban context of existing buildings on adjoining and nearby land in terms of:
(a) maintenance of existing vertical and horizontal building alignments;
(b) architectural style, building shape and the use of common architectural elements and features; and
(c) consistent colours, materials and finishes."
"Principle 32 Development in or abutting the Residential Zone or Historic (Conservation) Zone - Residential should not include boundary walls greater than one-storey in height. The design of all development should minimize the height of boundary walls and ensure that no unreasonable impact on adjoining property results from any walls on or near property boundaries."
"Principle 33 Development should not have adverse impacts on the privacy of indoor or outdoor living areas of nearby residential premises and in particular should not lead to direct overlooking of such living areas."
"Principle 48 Development and the associated points of access and egress should not create conditions that cause interference with the free flow of traffic on adjoining roads, or that contribute to the creation of a traffic hazard."
Metropolitan Adelaide
"Principle 10 Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:
(a) for adjacent properties; and
(b) for each dwelling and private open space."
19 Of some relevance also are Kensington and Norwood (City) Objectives 16 and 18 and Principles 1, 2, 3, 4, 17, 34, 45(d), 46(b) and 50, and Metropolitan Adelaide Objectives 6, 7, 8, 32 and 41 and Principles 4, 8, 13, 14 and 15.
Assessment
20 The principal issues in dispute in this matter can be summarised as follows:
(a) does the proposal have sufficient regard to existing nearby residential development within the abutting Residential Zone in terms of its height, scale, bulk and appearance (Zone Objective 1 and Principles 2 and 7; Kensington and Norwood (City) Principle 32)?
(b) is the density of the proposal in accordance with the relevant Development Plan provisions, in particular Zone Principle 9 and Kensington and Norwood (City) Principle 14?
(c) do the areas of private open space proposed satisfy Kensington and Norwood (City) Principle 16?
(d) is the creation of on-site carparking such as to satisfy Kensington and Norwood (City) Principle 48?
(e) will the proposal result in overlooking of nearby residential premises, contrary to Kensington and Norwood (City) Principle 33?
(a) Height, Scale, Bulk and Appearance
21 Zone Principle 8 establishes a two-storey height limit within the zone, other than for residential development with a frontage to an arterial road, which may be three storeys in height. The subject proposal, being two storeys in height, satisfies this principle.
22 Zone Principle 2 requires development within the zone but close to the Residential Zone to be compatible with existing residential development in terms of its scale and bulk, but must be read with the discussion under Zone Objective 1, which clearly envisages development fronting Sydenham Road being of a scale and bulk which is greater than that of existing residential structures within the area.
23 Kensington and Norwood (City) Principle 32 requires, inter alia, that development abutting the Residential Zone "should not include boundary walls greater than one storey in height ..... and ensure that no unreasonable impact on adjoining property results from any walls on or near property boundaries".
24 The evidence of Mr Marchetti was that "the style, bulk and shape of built forms contributes significantly to the definition of a locality's character. The locality's character in this regard is defined by a variation of building types attributable to the presence of some non-residential activity on land having frontage to Sydenham Road. The predominant style, bulk and shape of built form is however represented through the predominance of residential development in the form of small single-storey cottages of the 'Edwardian' era."
25 On the basis that the development abutting the subject land to the south and the east was single storey cottages of this kind, Mr Marchetti concluded that the proposal was out of character with the prevailing built form adjoining and surrounding the site.
26 The evidence of Mr Burns was that, having regard to the fact that a number of two-storey buildings existed within the locality, both commercial and residential, including several in Muller Street, and to the recent approval of a two storey residential development to the immediate north of the northern corner of Muller Street and Sydenham Road, the proposed dwellings were of an appropriate bulk, height and scale.
27 Mr Brunning, in evidence, acknowledged that the proposal failed to comply with the first part of Kensington and Norwood (City) Principle 32, but was of the view that the relationship with the adjoining single storey cottage in Muller Street was satisfactory, albeit not optimal, having regard to:
(a) the 3.0m laneway between that dwelling and the two-storey (6.5m) boundary wall of the nearest proposed dwelling;
(b) the recessing of the front corner of the latter, where it abutted the laneway; and
(c) the 5.9m ridge height of the single-storey dwelling.
28 The two-storey height of the proposed dwellings is clearly envisaged by the zone objective and Zone Principle 8. The bulk and appearance of those dwellings is, in my view, in keeping with the prevailing bulk and appearance of other buildings in Sydenham Road. I am satisfied that the transition between the proposed dwellings and the adjoining single-storey cottage in Muller Street is acceptable, for the reasons stated by Mr Brunning in his evidence, notwithstanding the fact that Kensington and Norwood (City) Principle 32 is not wholly satisfied. The design and appearance of those dwellings is also acceptable, in my view, having regard to the diversity of architectural forms in Sydenham Road in particular. A very similar development on the corner of Sydenham Road and Mattingly Lane, some 40-50m to the south of the subject land, sits comfortably with adjoining buildings of quite different appearance, largely as a consequence of the simplicity of its composition and detailing, and of the use of a rendered finish in a warm but muted colour.
29 Overall, I am of the view that the proposal generally satisfies those provisions of the Development Plan relevant to height, scale, bulk and appearance, in particular, Zone Objective 1 and Principles 2 and 8, and Kensington and Norwood (City) Principle 32.
(b) Density
30 Zone Principle 9 requires residential development within the Mixed Use A Zone to have an average site area per dwelling of 120m2. The average site area per dwelling represented by the proposal is 141.0m2, thereby satisfying the above principle. As a consequence of the proposal satisfying the relevant zone principle, Kensington and Norwood (City) Principle 14 is also satisfied.
(c) Private Open Space
31 Kensington and Norwood (City) Principle 16 requires that dwellings not located within the Residential or Historic (Conservation) Residential Zones be provided with open space "of appropriate areas, dimensions and outlook". Mr Marchetti, in evidence, acknowledged that the minimum area of 40m2 required for residential development within the Residential Zone did not apply to the Mixed Use A Zone. However, he was of the view that, in the absence of a specified minimum area of open space for the latter zone, 40m2 was an appropriate standard to apply.
32 The evidence of Mr Burns was that the dimensions, area and location of private open space satisfied Principle 16, providing a direct extension of outdoor living areas, being wholly private, and capable of accommodating clothes drying, utility storage and landscaping.
33 Mr Brunning's evidence was that, insofar as the Development Plan did not specify a minimum private open space area for dwellings within the Mixed Use A Zone, it clearly envisaged the possibility of such areas being smaller than the 40m2 minimum specified for the Residential Zone, an interpretation which, in his opinion, was consistent with the Council's decision to encourage residential development within the Mixed Use Zone. Smaller areas of private open space were, in Mr Brunning's view, supportable in inner urban localities. The subject land, said Mr Brunning, was within such a locality.
34 Having regard to the evidence and to my own reading of the Development Plan, I cannot accept Mr Marchetti's contention that the minimum area of private open space prescribed for the Residential Zone represents a basis for assessing the appropriateness of private open space within the Mixed Use A Zone. It was open to the Council to apply the 40m2 minimum within the latter. It has not done so. That being the case, the final sentence of Principle 16 cannot be interpreted as importing the Residential Zone standard to the Mixed Use A Zone. I agree with Mr Burns and Mr Brunning that, having regard to the inner urban nature of the locality and to the relatively high density residential development allowed for in the Mixed Use A Zone, the private open space provision satisfies Principle 16.
Access/Egress/Carparking
35 Kensington and Norwood (City) Principle 48 requires development to avoid access and egress arrangements which would "cause interference with the free flow of traffic on adjoining roads, or ..... contribute to the creation of a traffic hazard".
36 Mr Marchetti, in evidence, expressed concern regarding the fact that the location of garaging for the three dwellings facing Sydenham Road would require vehicles to reverse into that road. Because those dwellings were set back only 1.8m from the Sydenham Road property boundary, vehicles would, in Mr Marchetti's view, encroach substantially onto the crossover before a line of sight was obtained.
37 The evidence of Mr Brunning was that, between the kerb and the traffic lane on the eastern side of Sydenham Road was a substantial area of roadway designated for kerbside parking and a cycle lane. That being the case, there was ample opportunity, in his opinion, for the driver of a reversing vehicle to obtain a clear view of oncoming traffic before reversing into the traffic stream. Accordingly, he was satisfied that Principle 48 was met by the proposal. Similar views were expressed by Mr Burns.
38 The distance between the entrances to the garages for the three dwellings facing Sydenham Road and the kerbside is approximately 5.5m, sufficient to accommodate most vehicles without any intrusion into the roadway. This, taken together with the separation between the kerbside and the traffic stream created by the parking and cycle lanes, is sufficient to satisfy me that arrangements for the movement of vehicles onto and off the subject land will not be such as to offend Principle 48.
Overlooking
39 Kensington and Norwood (City) Principle 33 stipulates that development "should not have adverse impacts on the privacy of indoor or outdoor living areas" and "..... should not lead to direct overlooking of such living areas". The proposal plans, tendered in evidence, indicate that the sills of windows to the rear elevations of the proposed dwellings are to be set 1600mm above floor level.
40 Mr Marchetti, in his statement of evidence, expressed the view that "the proposed development has the potential to give rise to adverse impacts on the privacy of indoor and outdoor living areas, both within the development itself and in respect of adjoining properties". In the course of cross-examination, it became clear that Mr Marchetti had based this view on earlier plans of the proposal, which plans did not stipulate a 1600mm sill height for windows in the rear elevations. On the basis of the amended plans, Mr Marchetti considered that the revised sill heights addressed the overlooking problem "to a fair extent", albeit that he was of the opinion that some overlooking was still possible were a person of average height to stand right at the window.
41 Mr Burns, in evidence, was of the view that the 1600mm sill height proposed would generally satisfy Principle 33, subject to the incorporation of opaque glass into windows in the side wall of dwelling A, which abuts the laneway on the eastern side of the subject land. Those windows, while intended only to admit light into that dwelling, could allow some overlooking of indoor or outdoor living areas of the adjoining cottage.
42 The evidence of Mr Brunning was that the measures proposed were sufficient to prevent "unreasonable" overlooking, thereby satisfying Principle 33.
43 This Court, and its predecessor, the Planning Appeal Tribunal, have had to consider issues of overlooking on a number of occasions, and have taken the view that, in areas where multi-storey dwellings are contemplated by the Development Plan, the question is not whether overlooking has been prevented altogether, but whether such overlooking as will occur is excessive or unreasonable: see, for example, Sorrell v Corporation of the City of Glenelg and Dendy PAT No. 470 of 1988; Baker and Baker v City of Burnside 1996 EDLR 452; O'Callaghan v City of Unley ERDC No. 178 of 1997.
44 It has generally been accepted that sill heights between 1600mm and 1700mm above floor level are sufficient to prevent "unreasonable" overlooking, being overlooking which can occur in the context of the normal use of a room. I agree with Mr Burns that there is some potential for overlooking from the windows in the eastern elevation of dwelling A, but subject to the imposition of a condition requiring obscure glazing to those windows, I am satisfied that the proposal meets the requirements of Principle 33.
45 On the basis of all that was put before me, what I saw on the view, and the relevant provisions of the Development Plan, I have concluded that the subject proposal is in sufficient conformity with the latter provisions to warrant provisional development plan consent. In so concluding, I am not suggesting that the proposal is beyond criticism. However, it is by now well-established that assessment of a proposal's compliance with the relevant provisions of the Development Plan requires assessment against the totality of those provisions, and, of necessity, a balancing of those aspects of the proposal which find support in the Plan, and those which do not. In this regard, the oft-quoted remarks of Jacobs J in Hickinbotham Blue Gum Pty Ltd v City of Campbelltown (1981) 29 SASR 93 (at 101) remain relevant:
"There is scarcely any planning proposal, however good, to which some legitimate objection cannot be taken, but that does not mean that it has to be refused. On the contrary, the duty of the Planning Appeal Board is to look at the proposal as a whole, to consider all the evidence, including the opinion of expert planners, in support of the proposal as a desirable and sensible form of land use and development, to weigh the legitimate objections and criticisms, with due regard to the public interest, but not ignoring private interests if both such interests can be satisfactorily reconciled, and to determine in the end whether the balance lies in favour of granting or refusing approval."
46 By memorandum circulated to the parties and dated 20 July 1999, I advised them of my conclusion above and the reasons for it. I invited them to consider the question of conditions and to make written submissions to the Court thereon.
47 The parties have discussed and agreed conditions.
48 Accordingly, the order of the Court is that:
A. This appeal is allowed and the decision of the City of Norwood, Payneham and St Peters is reversed.
B. Provisional Development Plan consent is granted to Villaplex Pty Ltd to develop land by demolition of an existing building and erection of 3 two-storey row dwellings and 2 two-storey semi-detached dwellings at 16 Sydenham Road, Norwood 5067, Certificate of Title Register Book Volume 4263 Folio 164 (Development Application Number 155/853/98) subject to the following conditions:
1. Development shall take place in accordance with the plans relating to Development Application Number 155/853/98 including the plans marked Exhibit A2 tendered during the hearing of this appeal.
2. Opaque glass shall be used in the windows of the eastern wall of dwelling A referred to on the plans tendered and described in condition 1 hereof.
3. Stormwater from all roofs, gutters, downpipes, paved areas and garden areas be drained to an underground sump situated adjacent to the boundary of the subject land, thence to the street watertable through steel, concrete or class 12 PVC pipes or steel box sections located below the level of the footpath.
4. Clay/concrete brick paving in all driveways, parking areas and footpaths shall be laid strictly in accordance with recommendations and standards contained in the Brick Development Research Institute Design Manual 1-1989. Concrete pavement blocks shall be laid strictly in accordance with the provisions of the Cement and Concrete Association of Australia Technical Note TN39 - Domestic Crossovers and Driveways - Design and Construction in Interlocking Cement - November 1981, with particular compliance with the provisions relating to ground subject to seasonal movement.
5. The applicant shall, at its own expense in all things, carry out all alterations to existing inverts, kerbs, watertables, footpaths, pavements or other works in the public roads adjacent to the subject land necessary to give effect to the demolition or structures, site works and the construction of the buildings or structures and other works forming part of the development, the subject of the consent now granted, to the reasonable satisfaction of the Council, and shall, at its own expense in all things, repair and make good any damage caused to any such inverts, kerbs, watertables, footpaths, pavements or other such works to the reasonably satisfaction of the Council. The restoration of existing vehicular accessways or the construction of new accessways over the Council's footpath is required and shall in all things be at the cost of the developer.
C. A copy of Exhibit A2 shall be retained on the Court file.
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