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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 22 June 1999
Decision of Commissioner Wallman
Respondent CORPORATION OF THE TOWN OF WALKERVILLE:
Counsel: MR J HILDITCH - Solicitors: WARD & PARTNERS
ERD-98-1546
Judgment No. OE8
11 March 1999
BREZZO v CORPORATION OF THE TOWN OF WALKERVILLE
THE COURT DELIVERED THE FOLLOWING DECISION
1 On 18 October 1995, Mr Warwick Brezzo and Mrs Sally Brezzo obtained development approval from the Corporation of the Town of Walkerville ("the Council") to the alteration of a dwelling they occupied at 5 Burlington Street, Walkerville ("the subject land") and to the erection of a carport on that land. That approval was subject to nine conditions. The effect of one of the conditions of the provisional development plan consent granted at that time was that there be no door placed on the side of the carport facing Burlington Street.
2 The alterations were subsequently carried out and the carport constructed, in accordance with the approval, with the closest part of the building being some two metres from the boundary of the subject land with the road. The carport is now used, as originally intended, for the parking of two vehicles owned by Mr and Mrs Brezzo.
3 On 2 October 1998, Mr and Mrs Brezzo applied to the Council for approval to a "garage door", this being a tilting door enclosing the side of the existing carport nearest to Burlington Street. The Council gave this application Development Number 200/155/98. By making this application, Mr and Mrs Brezzo sought to remove the restriction on the construction of a door which had been imposed by the 1995 approval.
4 The Council refused consent to this application, referring, in doing so, to Metropolitan Adelaide Principle of Development Control 9, Council Wide Principle of Development Control 69 and Principle of Development Control 1 for Policy Area 8 in the Residential Zone, these being provisions of the Walkerville (CT) Development Plan authorised under the Development Act, 1993 ("the Act"). The nominated provisions of the Development Plan referred, variously, to matters of character and amenity, the location and design of building development and, specifically, residential building set-backs.
5 An appeal against the Council's decision by Mr and Mrs Brezzo (now "the appellants") led, after an unsuccessful conference between the parties, to a hearing by the Court. In the course of this hearing, the Court, together with representatives of the appellants and the Council, took a view of the subject land and of what was said by expert witnesses to be the locality of that land. Numerous exhibits were presented in evidence, including photographs of existing conditions along Burlington Street and along Belt Street (with which Burlington Street forms a junction close to the subject land).
6 Evidence was given by Mr Brezzo, in person, Mr AM Rumsby, a qualified and widely experienced town planning consultant, and Mr DJ Batge, the Council's Manager of Planning and Environmental Services, with a qualification and experience in town planning.
The Subject Land
7 Mr and Mrs Brezzo have owned the subject land since December 1994. They now reside in the two-storeyed detached dwelling which they renovated following the development approval they obtained in 1995. These renovations included remodelling of the exterior and of certain other elements of the dwelling, including the plastering and painting of the outer walls in a cream colour. The construction of the approved carport was another element of the upgrading.
8 The carport is attached to the dwelling and has a flat roof with timber moulding on the fascia boards and on the front two of the four supporting columns. It is open on three sides. All of the timber work is painted cream to match the colour of the dwelling. Together with a pre-existing garage immediately behind the carport, the appellants' have the ability to park up to three cars, under cover, on the subject land.
9 On the north-western side of the carport, a brush fence, 1.8 metres high, stands on the front boundary of the subject land. This fence encloses a landscaped front yard between the dwelling and the road. A cream-painted timber gate in this fence gives pedestrians access from the road to the front door of the dwelling. To the other side of the carport is a short section of brush fence, having the same set-back as the carport, in front of which is a small area of landscaping. This fence screens a narrow space between the carport, the dwelling and a fence along the south-eastern side of the subject land.
10 The subject land is level and rectangular in shape. It has a frontage of 20.22 metres to Burlington Street and an area in excess of 616 square metres.
The Proposal
11 The solid tilting door, for which an application for consent in October 1998 was made by the appellants, was to be of timber construction with applied mouldings creating the appearance of six vertical panels. The proposal before the Court is different in detail from that which the Council had originally considered. The door is still to be made of timber, but instead of being of one piece, it is to have five horizontally-hinged sections which are to be lifted mechanically into a position, flat below the roof of the carport, when the door is opened. The face of the door is still to have a pattern of applied mouldings, but the pattern is to comprise small rectangles of equal size, in a regular arrangement.
12 The door is to be painted cream to match the exterior of the carport and the dwelling. It is to enclose the open front side of the carport. The opening to be closed is 2.4 metres high and approximately 5.5 metres wide between the insides of the front supporting columns. The carport door is to be operated electronically by remote control, or alternatively by a button within.
13 The face of the door would be set back 2.3 metres from the boundary of Burlington Street and thus a little behind the front edge of the supporting posts and moulded fascia board of the existing structure.
14 By constructing the door, Mr and Mrs Brezzo seek, as they stated in their notice of appeal, protection from vandalism of cars parked in the carport and from unauthorised intrusion onto their property and increased security generally. They also seek to enable and contain movement by their dog within their front yard.
Assessment
15 The assessment of the appellants' proposal requires reference to the relevant provisions of the Development Plan, the appropriate plan being that for the Council area which is dated 26 June 1997. It is also necessary to consider the nature of the proposed development and its circumstances, including the circumstances of the neighbouring area within which the development is to take place.
16 Provisions of the Development Plan to which reference should be made include, in my opinion, those applying in the Residential Zone and the Residential (Walkerville Corridor) Policy Area (otherwise referred to as Policy Area 8) in which the subject land and nearby surrounding land is located. The nearby extent of this zone and this policy area are shown on Zones Map Wal/3 and Policy Areas Map Wal/5, respectively.
17 Objective 1 for the zone states that it is:
"A zone primarily accommodating dwellings of various types, sizes and tenure at low- and medium-densities and of low-rise form."
Objective 3, seeks generally:
"Development designed in context with the positive features of the locality and in accord with the specific area provisions."
In relation to these and other objectives for the zone (which are not relevant in this case) it is stated that "the zone embraces the established residential areas of Walkerville, ....." and "whilst it is of moderate size, there are considerable variations in characteristics between localities." Further, it is said that "careful attention to local factors and attributes is necessary in the design of further residential development". As it is associated with the primary use of the subject land for residential purposes, I have regarded the development of the proposed door, in this context, as "residential development".
18 The relevant principles of development control for the zone as a whole include:
"4. Development should reinforce the existing streetscape and desired residential character having regard to the provisions of the policy areas and exhibit architectural forms and styles which complement the positive characteristics of buildings in the locality."
"6. Vehicle garaging which has direct access from the street frontage should be integrated within the main building structure, or otherwise be designed to match the associated main building."
Policy Area 8 is one of the policy areas into which the Residential Zone, as a whole, is divided. The two relevant principles of development control for this policy area are:
"1. Development should complement the existing blend of late 19th century, pre- and post-war era building styles having regard to localised variations. New development should utilise traditional elements in a contextual manner."
"5. Residential building set-backs should provide an attractive streetscape, have regard to the set-backs of adjoining buildings and be set-back a minimum of six metres from one road frontage and four metres from any other road frontages."
These provisions of the Development Plan call for consideration of the character of development, the set-back of buildings from a road frontage and, by inference, the amenity of the locality in which development is located.
19 More generally applicable provisions of the Development Plan deal with the same, or similar, issues. These provisions include, for Metropolitan Adelaide:
"Objective 41: The amenity of localities not impaired by the appearance of land, buildings and objects."
In association with this objective it is stated that "the design of individual buildings should be of a high standard and related to adjacent buildings". Metropolitan Adelaide Principle of Development Control 9, Council Wide Objectives 5 and 22 and Council Wide Principles of Development Control 2 and 69 are also relevant to matters of:
* amenity;
* "the desired character" of the area;
* design of quality in respect of the appearance of development;
* the suitability of development, with regard to its intended use and location; and
* siting, design, colours and materials of construction.
20 Several provisions of the Development Plan require consideration to be given to conditions in the locality of the site of development. Having regard to the similar localities defined by each of the expert witnesses, the relevant locality, in my opinion, includes the front parts of residential allotments on both sides of Burlington Street within about 100 metres of the subject land to the north west and a similar distance to the south east. This area of reference also includes parts of allotments (mostly the sides of corner allotments) on each side of about 60 metres of Belt Street, a relatively narrow residential road running off Burlington Street to the south west.
21 This locality includes land from which the proposed door will be seen - albeit to a limited degree (except, of course, from points directly across the opposite side of Burlington Street). It also contains land which would be seen close to the subject land, as well as nearby land from within which regular passers-by could be aware of the existence of the door.
22 There is, for the most part, quite a high level of amenity exhibited in the locality due, variously, to the mature Jacaranda and Indian Rain street trees in Burlington Street, substantial vegetation (including trees) in private gardens, the generally well-maintained condition of most properties and the good to high standard of mostly single-storeyed dwellings. Because of the ample width of its carriageway and its connection to other roads, Burlington Street is configured to carry some of the traffic from beyond the locality onto and off North East Road, an arterial road about 200 metres to the north west. Burlington Street is still, however, primarily a local residential street.
23 Apart from the fairly general conditions in the locality, just mentioned, a particular element of character of note and relevance is the variety of fencing along the road boundary, including fencing of brush, face brick, rendered masonry, painted metal and timber paling. There are also hedges and fences, such as that on the road boundary of the allotment abutting the subject land to the south east, which have vegetation growing over the top. Most dwellings, including the appellants' dwelling, are substantially screened by front fences, with mostly solid gates of equivalent height, securing driveways and front yards. These fences and gates diminish the visual impact of the form and set-back of buildings behind them, insofar as those buildings are seen to form part of the streetscape. This is rather less true on the abutting and other nearest allotments to the north west side of the subject land, which have low front fences, but conditions on those allotments are not typical of the majority.
24 The set-backs of dwellings from the boundaries of Burlington Street within the locality are mostly in the range of six to eight metres. Consistent with Zone Objective 1 and the character recognised in Principle 1 for Policy Area 8, those dwellings vary in size and style from relatively modest 1880s villas and cottages (mostly with additions), through to large 1920s bungalows, to more contemporary, mostly large and individualistic, dwellings.
25 A three-car garage building, dark green in colour, with roll-up doors, is open to view from Burlington Street and set back two metres from the road boundary of the allotment abutting the subject land to the south east. This allotment has its primary frontage to Wilsden Street, a local road running into Burlington Street. There are other garages (enclosed with doors) on corner allotments in the locality which abut or are very close to the road boundary on one side of those allotments, but none of these is close to the boundary of Burlington Street. There is one open-ended garage and one other carport close to Burlington Street within the locality, but the site-specific circumstances of all of these other buildings are not comparable to those of the carport on the subject land.
26 Mr Rumsby correctly distilled from these conditions what he termed "strongly established residential values, or elements in this locality" including:
* the sense of enclosure of private front gardens through screen walls/fencing;
* materials and finishes which are of high quality and which tie together in a comprehensive fashion; and
* a mix of single and two storey buildings, original and contemporary structures and building setbacks in a pleasing public streetscape or environment."
27 He saw the proposed door as being consistent with, indeed reinforcing, the "sense of enclosure" that is one of the distinctive features of the existing streetscape.
28 Mr Batge, on the other hand, implied that the "harder edge to the street" created by existing fences on the road boundary and buildings close to that boundary was not a positive characteristic of buildings in the locality. In his assessment, predominant elements of the character of the locality were "buildings set back eight to 20 metres from the street with extensive landscaping", producing "an open, vegetated and attractive streetscape without undue enclosure". He seemed to believe that what had taken place in the past to produce the existing conditions on the subject land and on the adjoining allotment to the south east was not desirable, in particular the recent building of the carport and the adjacent triple garage - both close to the road. Development, such as that proposed was contrary to Zone Principle 6 because, he said, it would only serve to "highlight the fact that the carport is an add-on. Further, Mr Batge said, "the carport is not integrated with the dwelling (the main building on the subject land) and does not match its set-back. It was his opinion that the door would give the existing carport a more solid and dominant appearance which, combined with the appearance of the adjacent triple garage, would produce an unsatisfactory and dominant building mass. Thus, the carport should not be altered "to emphasise its conflict with the locality".
29 It seems to me that Mr Batge regretted the existence of the carport and the adjacent triple garage (which I presume, like the carport, to have been established with the consent of the Council). In his view, nothing should be done which could be seen as validating, not to speak of reinforcing, the existence of the carport and increasing its visual impact. In this respect, Mr Hilditch, for the Council, mentioned the decision of the Court in Milosic v Corporation of the Town of St Peters ERDC No.372 of 1996, in which it was held that "..... the existence of undesirable precedents cannot be called in support of new proposals .....", although the circumstances in that case were different from those in the present case. Milosic concerned the development of a carport abutting an existing double garage built out to a road boundary. The present case concerns only a building addition to an existing carport set back, albeit by only two metres, from the road boundary and separated by more than 18 metres from the triple garage (which is also set back from the road boundary). Being dark green, the triple garage stands in considerable contrast to the carport in respect of its colour and form. I do not see that the adverse cumulative visual effects on the amenity of the locality that are feared by the Council will occur.
30 The matter before the Court is not a reassessment of the development of the carport. The carport exists, and it exists less than six metres from the boundary of the road and nearer to the road than the existing dwelling; the only "adjoining building", in terms of Principle 5 for Policy Area 8. I am bound to take this into account. The decision of the Council now appealed against may well be consistent with the Council's conditional consent to development of the carport, but the terms of that original decision do not constrain the independent assessment by the Court of the current proposal. As Mr Tidemann, for the appellants, correctly said, this proposal is to be assessed in the context of all relevant circumstances and all relevant provisions of the Development Plan. Jacobs J, although referring to another development plan, said in the matter of District Council of Tanunda v Davis & Others (1985) 39 SASR 578 at 581:
"By its very nature, the Plan speaks to the future; it cannot repair what are perceived by some to be the mistakes of the past, but it undoubtedly does seek to avoid a repetition of such mistakes in the future."
Applied to the circumstances of the present case, this does not mean that it is for the Court to have any opinion on whether the Council was mistaken in allowing the development of the carport - or indeed the adjacent triple garage. The Court is not even entitled to speculate about the reasons for the original decision of the Council which led to the carport being built. Rather, the question which is now to be addressed is whether the door, as currently proposed, is sufficiently acceptable to warrant the granting of consent, or whether it is so contrary to the relevant provisions of the Development Plan in the circumstances of its location and construction, as to warrant refusal of consent.
31 I have considered carefully the evidence and submissions on the extent to which the proposed development is consistent with the desired character of the zone and the policy area, the predominant character of other buildings in the locality and the amenity of the locality.
32 The detailing of the face of the proposed door would, in my view, complement the pseudo-traditional architectural style of the carport, and thus would "utilise traditional elements in a contextual manner", as sought by Principle 1 for Policy Area 8. Looked at in relation to the colour, materials and built form of the carport and the adjacent dwelling on the subject land, I see the door as being a harmonious and highly compatible addition. In these visual terms, it would be an appropriate development on the site.
33 As to its appearance in relation to the locality, I observe that the door, as distinct from the carport and the dwelling on the subject land, would be visible to a very limited degree only. While the whole of the door would be seen from directly across Burlington Street, its visibility from the dwelling on that side of the street is obscured by a high and solid fence on the road boundary. From oblique angles of view up and down the road, little of the door would be seen; first, because it would be set back from the street alignment and back from the face of the columns of the carport; and secondly, because it would be substantially obscured by the brush fence across the front of the subject land (which is only 400mm lower than the top of the door) and the brush fence, and the vegetation above it, out to and along the road boundary of the allotment abutting the subject land to the south east. A tree growing in the south-western corner of the front garden of the subject land, near the north-western corner of the carport, would further reduce the extent of visibility of the door, as would the trunks and branches of the street trees.
34 While the development would not be wholly in compliance with Principle 5 for the policy area, the set back of the door, as an element of "residential building", would not, in my opinion, undermine significantly the attractiveness of the streetscape. Nor would the appearance of the door impair the amenity of that locality.
35 Thus, in terms of its appearance and location, I conclude that the proposed door is acceptable.
36 Two other aspects of the proposal now need to be considered. The first of these concerns the appellants' desire by means of the construction of the proposed door, to increase the security of their property and, to some extent, their personal safety. These intentions are clearly supported by Council Wide Objective 1 which seeks, in part:
"1. Satisfaction of the social, cultural, economical, environmental and health needs of the population by means which include:
(a) .....
(b) development with proper regard for personal safety and security of property."
This objective is expanded upon by Council Wide Principle of Development Control 3, which states in part that:
"3. Development should take place in a manner which:
(a) .....
(b) will have a proper relationship with any continuing use of land or building on the site of that development; and
(c) will protect, to an extent that is reasonable in the circumstances of the land concerned, personal safety of individuals in the community and the security of property by appropriate means, including the provision of:
(i) .....
(ii) adequate security measures including lighting in rear service yards: and
(iii) opportunities for informal surveillance of open spaces, pedestrian routes and public places."
The Council asserted that the proposed door would not protect significantly the property of the appellants from inappropriate or unauthorised intrusion, because access via the pedestrian gate would still be possible and the front fence could be climbed. Further, because the door would prevent casual surveillance of the carport by the public in the street, an intruder who had gained entry could be damaging the property without being seen. This may well be true, but the appellants would have the ability to secure the pedestrian gate, if necessary, and overall, I can see that the door would improve conditions of safety and security on the subject land and that any disadvantages would be outweighed.
37 The provision of safe and the convenient access and the effects of the development on the flow of traffic in Burlington Street are matters requiring consideration: Metropolitan Adelaide Principle of Development Control 14 and Council Wide Principles of Development Control 31 and 32. In all of these respects I find that the development would be satisfactory. It would have no adverse effects on the existing conditions of access and traffic flow, or on the general adequacy of space for the parking of vehicles on the subject land. The door would not be a significant impediment to access. A vehicle coming to enter the carport would only need to stand briefly at the kerb near the crossing place, or across the footpath, while the remotely controlled door is lifted. There is obviously no sufficient space on the land in front of the door for a vehicle to stand, if only momentarily, as there might properly be if the frontage road was heavily trafficked (such as a main road) or the roadway much narrower, but that is not a matter of significant concern in this case. Exit movements from the carport would be unaltered by the existence of the door, as it would be opened before a car is driven out.
Conclusion
38 On 3 March 1999, I issued to the parties a Memorandum advising of my conclusion that the addition of a door to the existing carport on the subject land, having the appearance, when closed, as depicted on photograph 1 of Exhibit A4 before the Court and constructed as described in evidence from Mr Brezzo and Mr Rumsby, warrants the granting of consent.
39 In response to this Memorandum, the appellants tendered to the Court amended drawings of the proposed development. The Council advised that the details shown on these drawings were satisfactory. They were accordingly received as Exhibits A6, A7 and A8. In relation to these exhibits, the parties proposed to the Court agreed conditions of consent.
Decision
40 It is the decision of the Court that the decision of the Council be reversed and the proposal by Mr W Brezzo and Mrs S Brezzo to add a lift-up door to the front of the existing carport on the land at 5 Burlington Street, Walkerville, as illustrated on Exhibits A6, A7 and A8, be granted provisional development plan consent subject to the following conditions:
1. Other than as varied by other conditions of this consent, the proposed development shall be undertaken in accordance with the following plans:
(a) the Section and Elevation Plan dated 4 March 1999, marked Exhibit A6;
(b) the diagram indicating details of "Typical Panel", marked Exhibit A7; and
(c) the Cross Section diagram marked Exhibit A8.
2. The proposed door shall have a remotely-controlled opening mechanism to be used upon entry from the street.
3. The colour of the exterior of the door shall match that of the columns and fascias of the carport to which it is to be attached.
4. All requirements of the above conditions shall be met prior to use of the proposed door.
41 There shall be an order to this effect and a direction that copies of Exhibits A6, A7 and A8 be retained by the Court.
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