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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 6 September 1999
Decision of Commissioner Hodgson
Respondent CITY OF NORWOOD, PAYNEHAM & ST PETERS:
Counsel: MR J MCELHINNEY - Solicitors: WARD & PARTNERS
Respondent SALVATORE BIBBO:
In Person
ERD-98-398
Judgment No. OE59
3 August 1999
ALFREDO PALOMBI ("the appellant")
v
CITY OF NORWOOD, PAYNEHAM & ST PETERS ("the Council")
&
S BIBBO
DECISION OF COMMISSIONER HODGSON
1 In earlier proceedings in this matter I declined jurisdiction on the basis that the subject proposal constituted non-complying development, and remitted it to the Council to be dealt with in accordance with the relevant provisions of the Development Act and Regulations. I invited the appellant, in the event that the concurrence of the Development Assessment Commission was obtained, to reinstate these proceedings within fifteen business days of the effective date of a decision to approve the proposal as a non-complying development.
2 Subsequent to my decision, a further application was made to the Council, which application described the proposal in the following terms:
"To convert an existing building into a three storey residential flat building containing two dwellings with associated carparking and landscaping (non-complying development)".
3 On 19 October 1998 the Council resolved to approve the proposal, subject to 9 conditions, and sought the concurrence of the Development Assessment Commission in respect of that decision. The Council was advised of the Commission's concurrence on 23 December 1998, and on 14 January 1999, it issued a decision notification form advising the appellant that provisional development plan consent had been granted. On 28 January 1999, the appellant, Mr Palombi, applied to have these proceedings reinstated.
4 At the commencement of the re-opened hearing, the parties invited me to determine the matter on the basis of the evidence previously given. A further view was undertaken, in the company of the parties.
5 The subject land is located within a residential zone, entitled Historic (Conservation) Zone - East Adelaide Residential 600. The objectives for that zone are as follows:
Historical (Conservation) Zone - East Adelaide Residential 600
"Objective 1: Conservation of dwellings and other buildings having a form and style which contribute significantly to the historic character of the area of the zone.
Objective 2: Development which enhances the character of the zone established by:
(a) the predominance of substantial, single-storeyed detached dwellings on large allotments with frontage primarily to wide roads;
(b) substantial, established gardens;
(c) fencing to streets in a style compatible with dwellings built in the 1870's and 1880's;
(d) consistent set-back of dwellings from the roads to which they have primary frontage; and
(e) roads lined with mature exotic street trees where they might practically be grown."
6 The subject proposal is a non-complying form of development within the zone. It was common ground between the expert witnesses that its scale and appearance would not be consistent with the historic character of the zone, thereby failing to comply with Zone Objective 2 and Principles 2 and 3.
7 In his evidence Mr Hutchison was critical of the proposal's modest yard areas and small balconies, and was generally of the opinion that it did not create the type of living environment sought by Metropolitan Adelaide Principles 5, 10 and 11 and St Peters Principle 22, which are in the following terms:
Metropolitan Adelaide
"Principle 5 Residential development in residential zones adjacent to non-residential zones should be designed and sited to protect residents from any adverse effects of non-residential activities."
"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."
"Principle 11 Landscaping of development in residential zones should:
(a) enhance residential amenity;
(b) screen storage, service and parking areas;
(c) provide protection from sun and wind; and
(d) not unreasonably affect adjacent land by shadow."
St Peters (CT)
"Principle 22 Dwellings built at ground floor level should have a private yard of usable dimensions and size capable of accommodating clothes drying facilities, landscaping and an area sufficient for the use and enjoyment of the occupants of the dwelling."
8 While Mr Hutchison acknowledged that the existing structure on the subject land had a significant adverse impact on the character and amenity of the locality, that the property was located near the boundary of a District Centre Zone, within which substantial commercial buildings were dominant, and that the proposal would result in an upgrading of the appearance of the site, he was of the view that the proposal would:
(1) result in the retention of a structure which was clearly at odds with the relevant zone provisions;
(2) allow additions to that structure which would exacerbate its adverse impacts on the character and amenity of the locality;
(3) encourage a use of the building which failed to meet any reasonable requirements of the Council's Development Plan applicable to residential development;
(4) fail to provide a reasonable level of amenity or outlook for occupants of the proposed dwellings; and
(5) promote development of the property in a manner which failed to comply with basic design guidelines set out in the Development Plan.
9 Mr Robertson, in evidence, took a more pragmatic approach. The existing structure and its site were, in his view, unique remnants of the former industrial use of the larger "Jam Factory" site, the remainder of which had been redeveloped for residential purposes. The structure was a substantial one, and was likely to remain as a feature of the locality, whether or not it was upgraded. The site lay on the edge of a District Centre Zone, which had a very different character to that of the Historic (Conservation) Zone - East Adelaide Residential 600, and the orientation of the structure was such that it had little impact on the historic streetscapes generally characterising the Historic (Conservation) Zone. Insofar as the proposal would introduce a residential use, and would result in a substantial improvement in the appearance of the existing building, Mr Robertson considered that some flexibility in the application of the relevant Development Plan provisions was warranted, notwithstanding the fact that the proposal was at odds with many, if not most, of those provisions.
10 Having regard to the evidence of Mr Hutchison and Mr Robertson, and to the submissions of Counsel, it seems to me that the acceptability or otherwise of the subject proposal turns, to a large degree, on the answers to two questions:
(1) how much weight should be given to the fact that that proposal will result in a more appropriate use for, and improved appearance of, the existing bunker structure?
(2) how much weight should be given to the fact that the subject site is located approximately two metres from the boundary of the District Centre Zone, within which zone quite different land use conditions and policies prevail?
11 To a large extent the answer to the first of these questions is dependent upon an assessment of the likelihood that the existing bunker structure would be demolished in the event that approval for the subject proposal was not granted.
12 The evidence of Mr Robertson was that the bunker was constructed of in situ concrete formwork and would be difficult to demolish. That being the case, it was his assessment that, if approved for its conversion was not obtained, it would remain in its present condition for the foreseeable future.
13 Mr Hutchison acknowledged that demolition of the structure would be expensive, but considered that, having regard to the relevant provisions of the Development Plan, this was the most appropriate course, albeit that he accepted that redevelopment of the existing structure was not out of the question, provided it was done in sympathy with surrounding development.
14 Mr Robertson accepted that alterations to the structure of a more substantial nature than those proposed would further improve its appearance, but was of the view that the alterations proposed were, in all the circumstances, acceptable.
15 The existing bunker structure, on the evidence, has not been used for many years. The opportunity for its conversion to residential use has arisen in the context of a comprehensive redevelopment of the whole "Jam Factory" site, of which it forms only a small part, and while it is not beyond doubt, it is my assessment that demolition of the structure to create a 331mý site for residential development is unlikely. That being the case it is, in my view, likely to remain in its present condition if its proposed conversion for residential use is rejected. Having regard to the residential redevelopment which has occurred within the remainder of the "Jam Factory" site, and to the adverse impact of the structure, in its present condition, on its locality, this is clearly an undesirable outcome.
16 Proposed improvements to the structure include demolition of an existing galvanised iron lean-to, the incorporation of glazing and balustrading to the southern facade, coating of the existing untreated concrete exterior in a "granosite" coating, and the establishment of paved and landscaped courtyards facing First Lane. While the resultant building would not be supported by the provisions of the Development Plan on a "greenfields" site, a reasonable amount of weight, in my view, has to be given to the fact that the structure already exists and is likely to remain. Furthermore, as the structure has been vacant for many years, the introduction of a residential use of land, albeit in a form which does not accord with that sought by the zone provisions, would represent a better "fit" with the zone provisions than would maintenance of the status quo.
17 Such a conclusion is supported by a number of authorities, which have held that the reality of an existing situation which is in conflict with the Development Plan can be taken into consideration by the relevant planning authority, and consequently, this Court, in assessing the acceptability or otherwise of a development proposal. See, for example, Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259; Wilson v City of Mitcham and Mercedes College (1986) 130 LSJS 31; District Council of Tanunda v Davis (1985) 39 SASR 578.
18 The second question has been the subject of judicial consideration on a number of occasions, and it is by now established law that, when considering a development on the periphery of a zone, and abutting another zone having a different character, the relevant planning authority (and, by inference, this Court) is entitled to have regard to conditions (both visual and physical) which may be created by the conjunction of two different types of zone. As Jacobs J. held in Papadopoulos v City of Woodville (1985) 39 SASR 569 (at 575):
".... it must be remembered that zone boundaries are only lines on a map, and the residential integrity of a residential zone at its perimeter might be very different from its residential integrity elsewhere. Lines on a map cannot prevent noise or smoke or smells or the visual or other impact of non-residential development from escaping across the boundary between a non-residential and a residential zone."
19 Similarly, in Lanzilli Holdings Pty Ltd v City of Campbelltown (1982) 32 SASR 81, a matter involving a proposal for the establishment of a furniture factory on the periphery of a light industrial zone, and abutting a residential zone, His Honour said:
"..... the amenity of the locality, as it seems to me, has to be judged by reference to the locality as a whole, and not by reference only to the houses located closest to the industrial zone, whose occupants are the only objectors. ..... the amenity of such a locality is not to be measured by the standards appropriate to a solely residential zone, and the amenity and convenience of whose who choose to live on the very boundary of the light industrial zone ought not necessarily be regarded as the appropriate standard of amenity and convenience for the locality as whole."
20 In the subject instance, the existing bunker structure is located on land which is , at its nearest point, some 2.0m from the boundary of the District Centre Zone. The first objective for the latter zone is as follows:
"Objective 1: A zone primarily accommodating a range of shopping, administration, cultural, community, office, commercial, entertainment, education, religious and recreational facilities."
Zone Principle 1 is in similar terms.
21 Within the District Centre Zone, in close proximity to the subject land, is located a number of substantial buildings, including a tile showroom and warehouse directly opposite the subject land, and having walling abutting First Lane comparable in height to that of the bunker structure, and the former jam factory, recently redeveloped for residential use, which is of a height comparable to, if not greater than, that of the bunker. West of the showroom, on the corner of Stephen Terrace and Payneham Road, is an old building presently used for the sale of computer and office supplies. Carparking and delivery access to both the office supplies building and tile showroom is obtained from First Lane, as is access to the carparking for the "Jam Factory" residential development. Collectively, the scale and nature of those developments within the District Centre Zone which back onto First Lane, in combination with their access and parking arrangements off that lane, produce a level of amenity within the locality of the subject land which is considerably lower than that enjoyed by occupants of dwellings with a frontage to First Avenue.
22 Having regard to the above considerations, I have concluded that the proximity of the subject land to the District Centre Zone, and the scale and nature of that development within that zone which is also within the locality of the subject land, are factors which speak in favour of the subject proposal, notwithstanding the fact that, in terms of its scale and appearance, it is at odds with many of the relevant provisions of the Development Plan.
23 It was common ground between the parties that the subject proposal fails to meet many of those provisions. To the extent that the proposal introduces a residential use to land which has been unused for many years, results in substantial improvements to the appearance of the bunker structure (with consequential benefits to occupants of nearby dwellings), and is located in such close proximity to the District Centre Zone that its amenity is heavily influenced by the scale and nature of development within that zone, I am satisfied that it warrants provisional development plan consent. In so concluding, I have not overlooked concerns raised by Mr Hutchison regarding vehicular access to and egress from the subject land. Mr Robertson was satisfied that access arrangements, while not ideal, were acceptable, and in the absence of any expert traffic evidence supporting Mr Hutchison's concerns, I am not persuaded that access considerations support refusal of the subject proposal.
24 In concluding that the proposed warrants consent, I have had regard to all the relevant provisions of the Development Plan (only some of which I have mentioned specifically), the particular circumstances of the proposal, the evidence, and the submissions of Counsel.
25 One final matter requires comment. The development site for the subject proposal, having an area of some 331mý, forms part of a larger site totalling some 1500mý, on the north-eastern portion of which a single-storey dwelling has recently been constructed. Between that dwelling and the proposed development site is an area which, on the evidence of Mr Bibbo and Mr Robertson, is intended to be used for visitor carparking and common open space for both the existing and proposed dwellings.
26 That area, however, does not form part of the subject proposal, having formed part of the application for approval of the detached dwelling. While the availability of that carparking and open space to occupants of, and visitors to the subject development was a factor taken into consideration by Mr Robertson in concluding that the latter was provided with adequate useable open space, there is, at this time, no guarantee as to its continuing availability.
27 By memorandum circulated to the parties and dated 30 March 1999, I advised them of my conclusion above and the reasons for it. I intimated that I would approve the proposal subject to appropriate conditions and subject also to being satisfied that legally binding arrangements had been entered into regarding the availability of the proposed common open space and visitor parking area to occupants of the proposed dwellings.
28 The parties have agreed conditions and the second respondent has provided to the Court confirmation of the execution and lodgment of a land management agreement between the Council and the owner of the subject land, securing the availability of the visitor parking and common open space area to occupants of the proposed dwellings.
29 The order of the Court is that provisional development plan consent is granted for the subject proposed development, being the conversion of an existing building to a three-storey residential flat building containing two dwellings with associated carparking and landscaping (Development No.155/00110/97) subject to the following conditions:
1. Except where necessary to comply with the following conditions, the development shall proceed in accordance with the applicant's correspondence and the plans and specifications accompanying the Development Application No.155/00110/97, all such correspondence, plans and specifications being contained in Exhibit R1 in these proceedings.
2. Stormwater from all roofs, gutters, downpipes, paved areas and garden areas shall be drained to an underground sump or underground sumps 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.
3. The proposed landscaped garden areas shown on the plans here approved and otherwise to be established on the subject land shall be provided with an automatic watering system of a design capable of supplying adequate quantities of water to maintain all trees, shrubs, plants etc, planted in the aforesaid garden areas in good health and condition at all times.
4. The person for the time being making the use of the subject land now approved shall, in all respects to the reasonable satisfaction of the Council at all times cultivate, tend and nurture the trees, shrubs, creepers and lawns established or to be established in accordance with the plans hereby approved, replacing whenever and so often as the occasion requires all trees, shrubs, creepers and lawns which shall die or become diseased.
5. The person for the time being making the use of the subject land now approved shall maintain the buildings and other improvements erected and to be erected thereon to the satisfaction of the Council in all respects.
6. The development shall be completed in all respects in accordance with the application and the conditions of consent prior to the occupation of the building or buildings and the site for the purposes herein granted consent.
7. Clay 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.
8. 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 of buildings or structures, site works and the construction of the buildings or structures and other works forming parts 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 reasonable 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.
9. The applicant shall provide documentary evidence from an Environmental Auditor that the site and the building is suitable for residential purposes prior to the commencement of any site works, and a copy of the report shall be provided to Council.
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