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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 12 July 1999
Decision of Commissioner Hodgson
Respondent DISTRICT COUNCIL OF VICTOR HARBOR:
Counsel: MR JAMES LEVINSON - Solicitors: NORMAN WATERHOUSE
ERD-98-1367
Judgment No. OE9
5 March 1999
KIM AND ANDREA POTGER
v
DISTRICT COUNCIL OF VICTOR HARBOR
E.R.D.C. No. 1367 of 1998
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This is an appeal pursuant to Section 86 (1) (a) (i) of the Development Act 1993 against a decision of the District Council of Victor Harbor ("the Council") to refuse to grant provisional development plan consent to an application by Kim and Andrea Potger ("the appellants") to construct one two-storey detached dwelling and two two-storey semi-detached dwellings on land at 13 The Crescent, Victor Harbor.
2 The appellants' application was made on 12 June 1998 and the decision of the Council on 24 August 1998. The decision notification form issued to the appellants by the Council advised that the application had been refused on the following basis:
"The proposal does not comply with Principles 85, 86 and 90 of Development Control of Council's Development Plan."
3 By notice of appeal dated 23 October 1998, Mr and Mrs Potger appealed to this Court against the decision of the Council.
4 A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not produce a compromise or settlement, and the matter then proceeded to a hearing, at which the Council was represented by Mr J. Levinson of counsel, and the appellants by Mr B Hayes, Q.C., of counsel. Evidence was given by Mr A Rumsby and Mr K Patterson, both qualified and experienced planning consultants. The Court inspected the subject land and its locality and received a number of exhibits.
5 The subject land is located in the easternmost part of the township of Victor Harbor, one block north of the main Victor Harbor/Adelaide road, in the area known as McCracken. The land has a frontage to two public roads, The Crescent and Cherington Road. It is rectangular, having a frontage to each road of 18.29 m and a depth of 44.2m, resulting in a total site area of 808 m2. It falls in a generally south-western direction from its north-east corner abutting Cherington Road, the fall across the whole of the land being some 7.5m. This represents an overall slope of 1 in 6. The land is vacant and unimproved, being cleared of any significant vegetation. It is more particularly described in Certificate of Title Register Book Volume 5521, Folio 982 as allotment 27 in DP 4074 in the area named McCracken.
6 The locality is moderately elevated, enjoying views over Encounter Bay towards the Bluff, and is characterized by a road network so arranged that the majority of allotments extend from one road frontage to another. While most dwellings within the locality appear to date from the 1950's and 1960's, comprising single and two storey dwellings constructed in face brick, dressed stone or painted concrete block, there is evidence of more recent development, this often comprising large structures (including semi-detached dwellings) and displaying more substantial site coverage. Older dwellings are generally set back a substantial distance (10-15m) from one road frontage, but often feature garages or sheds set close to the rear road frontage. Mr Patterson, in evidence, described it as "a locality which is in a transitional phase," going on to observe that "The land in this locality affords very attractive views of the bay and is relatively close to the foreshore but many of the original properties contain old style dwellings at very low densities. Development of these properties with a more intense use of the land has already occurred in the locality and is likely to continue to occur as the value of the land increases."
7 The proposed development consists of three dwellings: one detached dwelling fronting The Crescent (Dwelling A) and a pair of semi-detached dwellings fronting Cherington Road (Dwellings B and C). All dwellings are two-storey.
8 It is proposed that all three dwellings be rendered and finished in a green, blue or grey colour. The balconies would be of the same colour and include 1m high glass balustrades. None of the buildings is proposed to have window openings to the east or west (ie, facing the adjoining properties). The floor area ratio of the total development is approximately 0.57 and the open space ratio approximately 0.86.
9 Dwelling A comprises four bedrooms, three bathrooms, a family room, living room, laundry and kitchen. A double garage is accessed from The Crescent. An upper level balcony runs the full length of the south elevation, with glass balustrading and rendered cylindrical columns. The roof is flat, with a projecting parapet and fascias, and there is extensive glazing to the southern elevation. A section of the front balcony and ground level verandah projects forward of the principal building alignment, the latter being set back 9.8m from The Crescent boundary, while the forwardmost projection of the balcony and verandah is set back 6.0m from that boundary. Dwelling A is to be built to its eastern side boundary, the garage wall flanking that boundary for a distance of 8.0m, and is to be set back 1.2m from its western side boundary.
10 Dwellings B and C comprise a pair of two-storey semi-detached dwellings fronting Cherington Road, and are to be constructed of materials identical to those used for Dwelling A. Each is to contain three bedrooms, with a single upper level living area and kitchen. Garaging for a single vehicle is to be located abutting each side boundary, each garage being set back 6.0m from Cherington Road. A sundeck, accessed from the living room, projects forward of each dwelling to within 3.5m of the road frontage, separated by a masonry party wall. Each dwelling also has a balcony on its southern upper level elevation, these measuring 4.5m by 2.5m. Again, these balconies are separated by a masonry party wall.
11 The floor area of Dwelling A (including the double garage) is 272m square, and that of each of Dwellings B and C (including the single garage) 142m square.
12 I turn now to consider those provisions of the Development Plan relevant to assessment of the subject proposal. The subject land is located within the Residential Zone as depicted on Map ViH/6 in the Development Plan for the District Council of Victor Harbor. The relevant objectives for that zone are as follows:
RESIDENTIAL ZONE
"Objective 1: Continuation as the main residential area in Victor Harbor, providing primarily for residential uses of land, and compatible educational, community and recreational services.
Objective 2: Retention of a pleasant residential environment, insulated from visitor and through traffic."
"Objective 4: Provision for residential development to include attached housing in proximity to the town centre, local centres or the foreshore in a manner compatible with the existing residential amenity of the area.
Objective 5: Maintenance of the attractiveness and amenity of the outstanding views of the bay and islands."
13 Relevant Principles of Development Control are:
"1 Development should be primarily for residential use of land.
2 The height of any building should be not more than nine metres above the average natural ground level of the site.
3 Residential development which includes attached housing should be compatible with the predominant character and amenity of its locality.
4 No building should be erected nearer to the existing road boundary as indicated on Table ViH/1.
5 No dwelling should be located nearer than one metre from any side or rear boundary of the allotment on which it is to be erected, with the exception of the party boundary between semi-detached dwellings of row dwellings.
6 The location of windows, balconies or elevated deck areas should not be detrimental to the privacy and amenity of adjoining properties.
7 Buildings should be sited on an allotment so as to minimize the disturbance to views enjoyed on adjoining properties
8 External roofing materials should be of a low reflective nature."
"10 Residential development which includes attached housing should provide adequate access, movement, and on-site parking for motor vehicles and recreational vehicles, natural light, air penetration, landscaping and privacy."
14 Council-wide provisions of particular relevance are:
VICTOR HARBOR (D.C.)
"Objective 26: Compatibility of new buildings with the scenic views of Victor Harbor and with surrounding buildings."
"Principle 3 Development should take place in a manner which will not interfere with the effective and proper use of any other land in the vicinity and which will not prevent the attainment of the objectives of that other land."
"Principle 35 Sufficient provision should be made on the site of development, or on the site of any use of land, for the parking, loading, unloading and turning of such vehicles as are expected to be used in connection with the provision of services or the conveyance of goods to or from such development or use of land."
"Principle 69 Building development should be located and designed in respect of the size, colour, form, siting, architectural style and materials of construction of buildings to harmonise with, the objectives for an area, other buildings of historical significance or heritage value or, in the absence of guidance from these, the predominant character of existing building development."
"Principle 70 Development should take place in a manner which will not, in respect of its appearance, interfere with the achievement of the objectives for an area or, otherwise, the existing character of scenically or environmentally important areas, including areas which are prominently visible from other land or are frequented by the public."
"Principle 85 No building should be erected, added to or altered on any land so that any portion of such building is erected, added to or altered nearer to the existing boundary of a road than the distance prescribed for each road or portion thereof, in Column 3 of Table ViH/1, unless the proposal satisfies principles of Development Control 87-91."
"Principle 86 Buildings which are large in bulk or height in comparison to other buildings in the locality on land with frontage to the same road should be set back further from that road than those other buildings."
"Principle 88 The distance by which building development is set back from a road should be related to the effectiveness of the screening of views of the building development from that road by existing vegetation, natural landforms or other natural features or by other existing buildings. The more effective the screening, the less should be the set-back of building development from a road."
"Principle 90 The distance by which building development is set back from a road should be consistent with the distance by which other buildings on land in the locality with frontage to the same road are set back from that road, particularly where those other buildings are of heritage interest or significance. "
"Principle 98 The form, site, coverage and scale of residential development should be compatible with the maintenance of the well established residential amenity of existing living areas in Victor Harbor."
"Principle 99 Developments which include attached housing should be located where intrusion into existing areas containing primarily detached dwellings can be minimized and utilisation of existing open space, outloook and recreational areas maximized."
"Principle 102 Developments which include attached housing should be achieved by a more intensive and efficient use of suitable sites without creating singular large bulky buildings."
"Principle 103 The form, site coverage and scale of building development in any zone should be compatible with the existing character and use of that zone, and the amount of existing open space. New development should reflect the pattern and intensity of existing development in the locality with regard to extent of site coverage, building mass and set-backs from allotment boundaries."
"Principle 104 Residential development in a Residential Zone, Home Industry Zone or Future Residential Zone should have a Floor Area Ratio not in excess of 0.60 and an Open Space Ratio not less then 1.2."
"Principle 106 The height and set-back from boundaries of new development, within or abutting zones intended primarily for residential accommodation, and the location of any windows or balconies should not be unreasonably detrimental to the amenity of adjoining residential properties."
"Principle 112 Development should be designed and orientated to maximize coastal views and vistas whilst minimizing interference with the views and outlook obtained from existing urban development."
"Principle 113 The location and design of windows and private outdoor areas should maximize opportunities for sunlight, shade, views and privacy."
"Principle 114 Residential development which includes attached housing should be located within landscaped and paved settings."
15 It is evident from the copy documents tendered in evidence, that the Council's principal concern, and ultimately, its basis for refusal of the subject proposal, was the setback of Dwelling A, about which neither Mr Rumsby nor Mr Patterson held any concerns. Mr Rumsby, however, was concerned at what he considered to be the excessive bulk of Dwellings B and C, when viewed from Cherington Road.
16 It is established law that this Court, on appeal from the decision of a planning authority, is required to conduct a hearing de novo, an independent inquiry at which all relevant considerations are brought to bear on the decision to be made by the Court. There can be no presumption in favour of the decision appealed against: see, for example, Farrow and Others v South Australian Planning Commission and Beer (1988) 145 LSJS 284. Accordingly, notwithstanding the fact that neither of the planning experts to give evidence regarded the basis upon which the Council had refused the subject proposal, namely, the setback of Dwelling A, as being of any planning concern, it is both necessary and appropriate that all planning issues raised in evidence be given careful consideration by the Court.
17 In the subject instance, there is a difference of opinion between Mr Rumsby and Mr Patterson (and on the evidence, between Mr Rumsby and the Council Planner, Ms Jansen, who had recommended approval of the proposal) regarding the likely impact on the locality of having a two-storey building element some 10m wide and extending boundary to boundary, located 6m from Cherington Road, with a masonry party wall extending to within 3.5m of the latter.
18 Mr Patterson was of the view that:
(a) the proposed development was no larger, in terms of either bulk or height, than other large dwellings in the locality;
(b) existing development on the north side of Cherington Road was more prominent than what was proposed, as a consequence of being on the 'high' side of the road;
(c) other developments on the south side of Cherington Road were set back a comparable distance;
(d) the potential bulkiness of the proposed dwellings had been addressed through the use of variation in the balcony design;
(e) the shortfall in the proposal's compliance with the Open Space Ratio prescribed by Victor Harbor (DC) Principle 104 was of no particular concern, having regard to the proximity of the foreshore as a source of open space and the effective use of balcony and sundeck areas;
(f) overshadowing of adjoining properties would be relatively minor; and
(g) such overlooking as would occur (primarily to the south) was consistent with the level of overlooking generally experienced in the locality, within which the orientation and siting of buildings was directed primarily towards obtaining southerly views rather than towards maximising privacy.
19 Mr Rumsby, as I have said, did not take issue with the setback from The Crescent of Dwelling A, nor with the level of overlooking likely to be created by the proposal. His specific concerns were that:
(a) the proposal constituted overdevelopment of the site, this being reflected in its failure to conform with open space ratio and front and side setback provisions; and
(b) the scale of Dwellings B and C was excessive, having regard to their front and side boundary setbacks, and that this would conflict with existing building patterns, impair some views, and reduce the pleasantness and amenity of the locality.
In Mr Rumsby's view, a reduction to a single storey form fronting Cherington Road, together with redesign of the semi-detached dwellings to minimise walling to side boundaries was required, this probably necessitating the loss of one of those dwellings.
20 One of the consequences of allotments within the locality having dual road frontages is that there is a substantial variation in setbacks. Within the block defined by The Crescent, Cherington Road, Beaumont Street and Cudmore Road, dwellings at 24 and 25 The Crescent are set back 5m and 8m respectively from that street, and 26 (immediately to the west of the subject land) 11m, while the two dwellings to the immediate east (28 and 29 The Crescent) have built form located 1m and 2m respectively from Cherington Road. Number 29 has a highly articulated roof form which, in my assessment, creates a massing, when viewed from Cherington Road, which is at least as great as that proposed on the subject land, having regard to the greater setback and flat roof form proposed for the semi-detached dwellings on the latter.
21 Similarly, while the dwelling to the immediate west of the subject land is set back approximately 10m from Cherington Road, it is a substantial two-storey structure with a steeply-pitched roof, the effect of which, according to the evidence of Mr Patterson, would be to create a massing comparable with that of proposed Dwellings B and C when viewed from Cherington Road. Mr Patterson's assessment, which was not disputed, was that the dwellings at 26 and 29 The Crescent were both taller than proposed Dwellings B and C.
22 Mr Rumsby placed some weight on the fact that Dwellings B and C extended from boundary to boundary for a depth of some 6.5m, an aspect of the proposal which was clearly contrary to Principle 5 for the Residential Zone. He considered that the two-storey elements of Dwellings B and C located on the boundaries of the subject land would not be in harmony with the established building character of the locality, and would also interfere with the vistas to the south otherwise obtainable between buildings when viewed from Cherington Road, thereby conflicting with Victor Harbor (DC) Principle 112. Mr Patterson, however, was of the view that the principal planning intent underlying Principle 5 was to minimise overshadowing. Insofar as he had concluded that the proposal did not create any significant overshadowing problems, Mr Patterson did not consider the proposal's conflict with Principle 5 to be of any consequence.
23 It was evident, on the view, that the majority of dwellings within the locality had some building element located close to the side boundaries of the allotments on which they were located, generally within the range 0.9m to 1.5m. That being the case, the principal opportunity to enjoy the southerly vista of the bay and the Bluff is afforded by the north-south streets within the locality, other than where dwellings are sited closer to The Crescent than to Cherington Road. However, glimpses of the bay are obtainable between dwellings where side boundary setbacks exist.
24 It was common ground between the expert witnesses in this matter that the subject proposal fails to comply with some of the relevant provisions of the Development Plan, in particular Zone Principles 4 and 5 (setbacks from road and side boundaries) and Victor Harbor (DC) Principle 104 (Floor Area Ratio and Open Space Ratio). Is that failure sufficient to warrant rejection of the proposal?
25 It is by now established law that the role of a planning authority (and on appeal, this Court), in assessing a proposed development, is to consider it against all the relevant provisions of the Development Plan. The position stated by Jacobs J in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93, at 101, while directed to the role of the then Planning Appeal Tribunal, has equal relevance to this Court:
"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."
26 The proposed dwellings have been designed with some care to minimise interference with views presently obtained from neighbouring properties. They represent a density of development greater than that exhibited by older dwellings within the locality, but one which is consistent with more recent development, the latter being characterised by an emphasis on ease of maintenance and utilisation of views rather than on protection of privacy and maximisation of outdoor open space.
27 Objective 4 for the Residential Zone, which zone covers the whole of the residential areas of the township, clearly envisages attached housing being established, inter alia, in localities close to the foreshore. The locality within which the subject land is situated is such an area. That objective also seeks to ensure that such housing is compatible with the existing residential amenity of the area. In the latter regard, I am satisfied that the proposed dwellings will sit comfortably in their setting, for the following reasons:
(a) there is a wide variation in setbacks in the locality, and those proposed for Dwellings A, B and C are within the range evidenced by recent nearby development;
(b) the colours, materials and finishes proposed are compatible with nearby development;
(c) the apparent mass of Dwellings B and C will be comparable to that of other nearby dwellings, particularly those at 26 and 29 The Crescent, because
(i) the fall in the subject land from Cherington Road will result in the ground level of Dwellings B and C being some 1.0m - 1.5m below the level of the roadway;
(ii) substantial shadow lines will be created by decks and verandahs incorporated in the north elevation of those dwellings; and
(iii) the use of a flat roof form will result in a finished building height lower than that of the dwellings at 26 and 29 The Crescent.
28 The subject locality, it seems to me, is undergoing a transition from a character dominated by traditional forms of low density housing to one in which higher density residential development, while not at this time dominant, has become an element which must be taken into consideration in assessing new proposals against the relevant provisions of the Development Plan. Having undertaken that assessment in the light of all the evidence, I have concluded that, on balance, the subject proposal is sufficiently in accordance with those provisions as to warrant provisional development plan consent.
29 By Memorandum circulated to the parties and dated 16 February 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 by not later than 26 February last.
30 No submission was made by the appellants as to conditions. The conditions suggested by the Council are, in my view, reasonable, and I have adopted them accordingly.
31 The decision of the Court is that this appeal is allowed and the decision of the District Council of Victor Harbor in application development number 453/240/98 is reversed.
32 Provisional development plan consent will be granted for the subject proposed development, being the erection of a two-storey detached dwelling and two two-storey semi detached dwellings on land at 13 The Crescent, Victor Harbor, subject to the following conditions:
(1) Except as varied by these conditions, the development shall be undertaken in accordance with the application plans including the amended site plan marked Exhibit R2.
(2) The sites of dwellings A, B and C shall be landscaped (which landscaping shall be properly maintained) to enhance the appearance of those dwellings.
(3) The driveway areas of each dwelling shall be sealed or paved prior to the occupation of the dwellings.
33 There will be an order accordingly.
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