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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 April 2000
Decision of Commissioner Hodgson
Respondent CITY OF HOLDFAST BAY:
Counsel: MR S HENRY - Solicitors: STUART HENRY BARRISTER
Respondent ANGLICAN PARISH OF GLENELG:
Counsel: MR P LEADBETER - Solicitors: JAMIE BOTTEN & ASSOCIATES
ERD-99-1085
Judgment No. [2000] SAERDC 3
9 February 2000
JOHN & BEVERLEY VAN DER LAAN
V
CITY OF HOLDFAST BAY
AND
ANGLICAN PARISH OF GLENELG
(ERD No. 1085 of 1999)
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This is an appeal against a decision of the City of Holdfast Bay ("the Council") to grant provisional development plan consent to an application under the Development Act 1993 by the second respondent, which application was to change the use of an existing dwelling to office and dwelling. Some relevant details are set out hereunder:
Date of application: 19 May 1999
Subject land: 9 Augusta Street, Glenelg
Certificate of Title: Volume 5129, Folio 75,
Hundred of Adelaide
Existing use: Single-storey detached dwelling
Proposed development: Change use to office and dwelling
Relevant Authority: City of Holdfast Bay
Relevant development plan: Holdfast Bay (City) 15 April 1999
Relevant zone: Residential (Central Glenelg) Zone
Date of decision: 27 August 1999
Appeal lodged: 9 September 1999
2 When this matter came on for hearing, the appellants were represented by Mr G. Manos, of counsel, the Council by Mr S. Henry, of counsel, and the second respondent by Mr. P. Leadbeter, of counsel. Sworn evidence was given by Mr D. Hutchison, Ms G. House and Ms. J Nolan, all qualified and experienced town planning consultants, Mr L. Vitale, a qualified and experienced heritage architect in the employ of Heritage South Australia, who appeared under subpoena, and Father A. Tamblyn, Rector of the Anglican Parish of Glenelg. The court conducted a view of the subject land and its locality, and received a number of exhibits.
The Subject Land
3 The subject land is a rectangular allotment, situated on the northern side of Augusta Street and in the north-eastern corner of Torrens Square. The Anglican Church of St Peters is located in the centre of that square, some 20-30m from the subject land. The land has a frontage to Augusta Street of 15.24m and a depth of 40.84m, producing a total area of 622.4m2. A right of way is located alongside the western boundary of the land, providing access to garaging at the rear. The land is occupied by a detached, sandstone dwelling, constructed around 1900. The dwelling comprises four bedrooms, a dining room, lounge, kitchen and wet areas, and is set relatively close to the street alignment. The north-western corner of the land accommodates a small colorbond garage which is adjoined by a pergola/carport to its southern opening. The balance of the rear yard comprises a small swimming pool and spa together with well-ornamented areas of landscaping. The small front garden is also well-landscaped.
The Locality
4 The localities defined by Ms. House and Mr. Hutchison, for the purpose of their evidence, were very similar, extending from the Halcyon Nursing Home to the north to the Coles supermarket to the south, and from Byron Street to the east to Sussex Street to the west. The locality is dominated by St. Peter's Church and Torrens Square, the Church being registered as a State Heritage Item. Residential development is the predominant land use within the locality, but a number of non-residential uses are also evident, including the Coles supermarket and associated carpark and a surgery for an Orthodontist/Oral Surgeon, which is located to the east of the subject land, on the corner of Waterloo Street and Augusta Street.
5 To the north-west of the subject land is a group of units, accessed via the same right of way which serves the subject land. These units are set well back from the latter, as a consequence of which its western boundary abuts only roadway and open space associated with the square. Within that open space is located a very large Moreton Bay Fig.
6 To the south-east is located the original St. Peter's rectory, which is an item of local heritage significance. To the east are located primarily dwellings of an age and quality comparable to that on the subject land. To the west are located new dwellings and semi-detached dwellings, some of relatively recent construction.
7 Augusta Street is a busy thoroughfare, linking Brighton Road with Colley Terrace and the Glenelg foreshore. Overall, the amenity of the locality is high, deriving from the heritage character of many of the adjoining dwellings and the visual interest provided by St. Peter's Church, together with well-maintained residential properties and street verges and mature vegetation. However, the amenity of the area is reduced, to some degree, by noise and other impacts associated with high traffic volumes on Augusta Street, and activities associated with the Coles supermarket.
The Proposal
8 The proposal entails the conversion of the four front rooms of the existing detached dwelling to an office, with the rear portion remaining in residential use. The carport to the rear of the dwelling would be shared by the residential and office uses. The proposed use of the four front rooms is as follows:
- Meeting Room (1 evening parish council meeting per month, attended
by about 20 persons)
- Counselling/Interview Room
- Main Office (2 desks, worktable and filing cabinets)
- Priests' Office (2 desks and storage)
The remaining rooms, to the rear of the house, would comprise:
- Bedroom
- TV lounge
- Kitchen/Dining
- Lobby
- Bathroom/Toilet facilities
9 It is proposed that the kitchen, lobby and bathroom/toilet facilities be shared between the office and residential uses.
10 The evidence of Father Tamblyn was that the proposed office was to be used directly in association with the church, the administrative needs of the latter having outgrown the facilities presently available within an annexe to the church building itself. Activities to be conducted within the proposed office would include preparing rosters, payment of parish accounts, preparation of documents for parish council meetings, preparation of parish newsletters and preparation of outgoing parish correspondence. Administrative activities would be conducted during normal office hours, other than for the one parish council meeting per month.
11 The residential portion of the building would be occupied by the caretaker/administrative assistant for the church.
12 The three carparking spaces existing on the land would be used by the caretaker/administrative assistant and the priests of the church. Volunteers assisting with administrative tasks and people attending for individual counselling would need to park in the church's carpark. No external alterations to the existing dwelling are proposed, and no signs would be displayed on the property.
Assessment
13 The subject land is located within the Residential (Central Glenelg) Zone as depicted on Map HoB/5 in the Development Plan for the City of Holdfast Bay. The objectives for that zone are as follows:
Residential (Central Glenelg) Zone
"Objective 1: Accommodation of detached dwellings and a variety of residential kinds of development of medium-density, including row dwellings and residential flat buildings having a maximum of two-storeys above natural surface level.
Objective 2: Conservation of a predominant character throughout the zone established by existing detached dwellings.
Objective 3: Preservation and enhancement of the spatial qualities of Torrens Square, the relationship between the St Peter's Church and other buildings and pleasant vistas along Nile Street and Augusta Street to Torrens Square."
14 Zone Principle 13 designates Office, inter alia, as a non-complying form of development within the zone. Copy documents, tendered in evidence, confirm that the Council, having resolved to approve the subject proposal, subsequently obtained the concurrence of the Development Assessment Commission as required by Section 35(3)(b) of the Development Act 1993.
15 It was common ground between the parties that the subject proposal would not offend those provisions of the Development Plan which are directed towards the preservation of streetscape or protection of buildings of heritage significance, including zone objectives 2 and 3.
16 Mr Hutchison, in evidence, was of the view that the proposal conflicted with the Development Plan in five principal respects:
(a) as a non-complying form of development within the zone, it was clearly at odds with the desired residential character;
(b) there was a clear direction in the Development Plan that office, administrative, religious and community uses be located within integrated centres;
(c) a precedent was likely to be set by approval of the development, notwithstanding its links with the associated church;
(d) it would impact adversely on the amenity of neighbours; and
(e) the level of amenity for occupiers of the proposed residential component of the development was poor.
17 Ms. Nolan and Ms. House, in evidence, acknowledged that the establishment of an office per se was not supported by the zone provisions. Nevertheless the proposal, in their view, had merit for a number of reasons:
(a) it was consistent with those provisions seeking the maintenance of existing building stock and the retention of a residential character;
(b) it maintained a desirable, indeed, necessary link between the church building and activities conducted therein and the administrative and pastoral functions to be conducted from the proposed offices;
(c) some residential use of the subject land was maintained;
(d) the proposal was a low-key use which would have no adverse effects on the amenity and character of the locality; and
(e) as a necessary adjunct to the church itself, the proposal could be distinguished from stand-alone office uses, and therefore would neither create a precedent for further offices within the zone nor undermine the nearby centre zone.
18 There are many uses of land to which offices are an ancillary and subordinate use, rather than representing a land use in their own right, for example, schools, hospitals and churches. The small area within the existing church building used for administrative purposes falls within this category, and there has been no suggestion that its use as offices in association with church activities constitutes a non-complying form of development. Once the physical nexus with the church is broken, however, the characterisation of the office use as 'ancillary and subordinate' to the church use becomes difficult to sustain, given the possibility of the proposed offices changing hands and being used for office purposes not associated with the church.
19 Mr Leadbeter, for the Church, submitted that, while it was uncommon for a planning consent to be restricted to the applicant, rather than passing on to successors in title, the circumstances of the subject proposal were such that a condition along those lines would be quite appropriate. In this regard, I note that one of the conditions imposed by the Council in approving the subject proposal plan was in the following terms:
"3. That the office and dwellings only be used for purposes directly associated with the St. Peters Anglican Church."
20 Were a condition along these lines to be imposed, the proposal would not, in my view, create a precent for further office development within the zone, nor would it undermine the nearby centre zone, which would remain the appropriate location for such offices.
21 With reference to the possibility, raised in evidence by Mr. Hutchison, of the proposal impacting adversely on nearby residential development, I note that it is proposed by the Church that, with the exception of one Parish Council meeting per month, to finish no later than 11.00pm, normal office hours would be maintained. The evidence of Father Tamblyn was that counselling would continue to be provided primarily from the church rectory, in which he resides, and which is located on the southern side of Augusta Street, a short distance east of the church. Some counselling was likely to occur at the proposed church office, but numbers were likely to be no more than 1-2 per week. Three clergy, an administrative assistant, a part-time youth worker and one or two volunteers would represent the maximum number of persons working from the proposed offices, although it would be uncommon for all to be on the premises at the same time. The clergy would use the premises as their working base, but would normally be "out and about" in the parish during the day. Where parking additional to the three spaces on the subject land was required, this could be accommodated in the parking area for the church, which, on Father Tamblyn's estimate had a capacity of 20-30 cars.
22 The Development Plan Provisions for the Residential (Central Glenelg) Zone are directed primarily towards the maintenance of the existing residential character and appearance of that zone. That character and appearance will, in my view, be unaffected by the proposal, in the sense that there will be no change in the external appearance of the existing dwelling or the subject land.
23 Holdfast Bay (City) Principles 2, 4 and 12 are directed towards ensuring that new development does not impact adversely on existing use of the land. They are in the following terms:
Holdfast Bay (City)
"Principle 2
Urban development should create a safe, convenient and pleasant environment in which to live.
Principle 4
Development should take place in a manner which:
(a) will not interfere with the effective and proper use of any land; and
(b) will have a proper relationship with any continuing use of land or building on the site of that development.
Principle 12
Development should take place in a manner which is not liable to contribute unduly to pollution of air, water or land, or cause a nuisance, including nuisance to the community, by:
(a) the emission of noise, vibration, odour, fumes, smoke, vapour, steam soot, ash, dust, grit, oil, waste water, waste products, electrical interference, radioactivity or light;
(b) the drainage of stormwater or run-off from land;
(c) loss of residential privacy;
(d) an affront to public morality; or
(e) otherwise howsoever."
24 Having regard to the evidence of Father Tamblyn and to my own observations on the view I have concluded that the subject proposal will not result in noise or other nuisance associated with vehicle accessing the subject land, or with the administrative and counselling activities proposed to be conducted thereon, such as would reflect with those Development Plan provisions directed towards the maintenance of accidental amenity. In so concluding, I have not overlooked a concern, expressed by Mr Hutchison in evidence, that approval of the subject proposal would result in the appellants, who reside immediately to the east of the subject land, being relatively isolated from neighbours. The appellant's property, being located on a corner, is bordered by the subject land to the west, and a detached dwelling to the north. While approval of the subject proposal would result in a portion only of the dwelling on the subject land being used for residential purposes, I am not persuaded that the concern expressed by Mr. Hutchison constitutes a basis upon which that proposal should be rejected.
25 A further concern expressed by Mr Hutchison was what he saw as a poor level of amenity for any occupier of the residential component of the proposed development.
26 The evidence of Father Tamblyn was that the accommodation at the rear of the dwelling would be used by the church's administrative officer for between 1 and 3 nights per week, when parish business required her to work late and it was inconvenient for her to return to her home, which is in the Adelaide Hills. In cross examination, he acknowledged that, while the present administrative officer was happy with this arrangement, it did not provide an ongoing guarantee of continuing residential use of the rear of the dwelling.
27 It seems to me that the proposed residential use of the rear of the existing dwelling has value primarily in limiting the area of the dwelling which is available for office use. Whether it is used regularly or intermittently by the church administrator is something upon which I can only speculate. However, were the Church to seek to extend the office use to the area presently proposed for residential use, a further approval would be required. The fact that kitchen and ablution facilities would need to be shared, at least during office hours, between the occupant of the residential portion of the building and the occupants of the office portion, may not create any practical difficulties under the current proposal, as the occupant of the residential portion would not be in occupation on a full-time basis, and, in any event, would also be one of those working in the office portion. Were the proposed arrangement to change, it may prove difficult for the Church to find another occupant for the residential portion. That, again, is a matter on which I can only speculate. More important, however, is the fact that, if the proposal proceeds, the portion of the premises designated for office use remains limited, with residential the only possible use of the rear portion unless and until a further approval, varying the arrangement presently proposed, is obtained.
28 A final concern expressed by Mr Hutchison related to a perceived inadequacy in the amount of on-site parking provided, which, based on the application of the standards applicable to office and residential uses, should be 5 spaces, whereas 3 spaces were provided.
29 The evidence of Father Tamblyn was that the subject proposal would not result in any intensification of administrative and counselling activities presently conducted from the annexe to the church building, and therefore that no additional staff or volunteers would be required. Parking was available within the grounds of the church, some 20m from the subject land, which parking was presently used by priests, staff and volunteers, and that parking would meet any parking needs which could not be met on the subject land.
30 While the latter is separated from the church building proper by a portion of the roadway around the periphery of Torrens Square, the parking within the church grounds, which on the estimation of Father Tamblyn, is some 20-30 spaces, is extremely close, and would be more than adequate for the purpose of accommodating parking needs associated with the office function. Accordingly, I am satisfied that the proposal's failure to meet the combined residential and office parking standards prescribed by the Development Plan is not a basis upon which it should be rejected.
31 Mr Manos, for the appellants, submitted that any additional requirements for office space could be met by an addition to the existing church building. The evidence of Mr. Vitale, which was not contested by any other expert evidence, was that any further extension of the church would be to the detriment of the heritage value of the church and its setting, both of which formed part of the heritage listing of the property. That being the case, any proposal to extend the existing church, or construct a new free-standing building within its grounds, would be unlikely to gain support from Heritage S.A.
32 The Anglican Church of St. Peters is the dominant built element within Torrens Square, standing as it does within the centre of that square, separated from surrounding development by roadway. Extensions to the church of a size and in a location which would satisfy the functional requirements of the Church, as described in evidence by Father Tamblyn, would in my view, and consistent with the views expressed by Mr Vitale, substantially compromise the heritage and landmark qualities of the church. That being the case I am satisfied that, having regard to Objective 3 for the zone, and to Holdfast Bay (City) Objective 38, which calls for:
"The preservation and conservation of buildings or sites of cultural, architectural, historical or scientific interest, including state heritage places",
the subject proposal should not be rejected on the basis that the functional requirements of the Church could be met by further development on the church site.
33 The circumstances of the subject proposal are unusual. They entail a use of land which, insofar as it is listed as non-complying within the zone, is at odds with the land use objectives for that zone. There is, however, a strong functional nexus between the activities of the Church and the administrative tasks required to support those activities. The latter tasks have been taking place within an extension to the church building, and it has not been suggested that they have been anything but "ancillary and subordinate" to the church use. However, additional space is now required, which, for reasons explained by Mr. Vitale, cannot realistically be provided on the church site. The subject land, to which it is proposed to relocate church office functions, is in sufficiently close proximity to maintain the functional nexus which has existed hitherto, a nexus which, on the evidence of Father Tamblyn, would be broken where the church offices to be located further away, within the Jetty Road District Centre Zone. In all the circumstances, and having regard to the expressed willingness of the church to abide a condition restricting any approval for the use of the proposed offices to church purposes only, I am satisfied that such an approval would do no violence to the objectives for the Residential (Central Glenelg) Zone, and would be consistent with the Development Plan provisions directed towards maintenance of the existing character of that zone and the spatial and heritage qualities of Torrens Square and St Peter's Church, as well as with Holdfast Bay (City) Objective 4:
"Satisfaction of the social, cultural, economical, environmental and health needs of the population by means which include:
.........
(c) Provision of such facilities as are required for the accommodation, health and welfare of the community."
34 I am further satisfied, on the evidence, that the proposal would not impact adversely on the residential amenity of the locality, and would not create a precedent which would undermine the viability of the Jetty Road District Centre Zone.
35 Having taken into consideration 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, while falling into the category of a non-complying development within the Residential (Central Glenelg) Zone, has a functional nexus with the existing Anglican Church of St. Peters and, provided any approval is restricted to Church purposes, would have minimal, if any impact on the character and amenity of that zone, nor any adverse impact on the viability and functioning of the Jetty Road District Centre Zone.
36 Having so concluded, I have further concluded that the decision of the respondent Council to approve the subject proposal, subject to five conditions, was correct, and should be upheld.
37 There will be an order accordingly.
2
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