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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 April 2000
Decision of Commissioner Hodgson
Respondent CORPORATION OF THE CITY OF ADELAIDE:
Counsel: MR S HENRY - Solicitors: STUART HENRY
ERD-99-1140
Judgment No. [2000] SAERDC 6
21 January 2000
CHRIS DIAMANTIS
V
CITY OF ADELAIDE
(ERD No. 1140 of 1999)
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This is an appeal against a decision of the City of Adelaide ("the Council") to refuse to grant provisional development plan consent to an application under the Development Act 1993 by the appellant. Some relevant details are set out hereunder:
Date of application: 9 June 1999
Subject land: 115 Brougham Place, North Adelaide
Certificate of Title: Volume 2980, Folio 5,
Hundred of Adelaide
Existing use: Two-storey detached dwelling
Proposed development: Demolition of existing dwelling and
construction of two-storey building
containing four dwellings with basement
carparking for 8 vehicles and visitor
parking for 4 vehicles.
Relevant Authority: City of Adelaide
Relevant development plan: Adelaide (City) 11 February 1999
Relevant zone: R14 Cathedral Precinct
Date of decision: 6 September 1999
Appeal lodged: 9 September 1999
2 When this matter came on for hearing, the appellant was represented by Mr B. Hayes QC, of counsel, and the Council by Mr S. Henry, of counsel.
3 The Court conducted a view of the subject land and its locality, received a number of exhibits and heard sworn evidence from Mr. D. Burton, a qualified and experienced architect, Mr H. Bechervaise, Mr. A. Tutte and Mr. P. Jensen, all qualified and experienced town planning consultants, Mr P. Deb, a qualified and experienced town planner in the employ of the respondent Council, who appeared under subpoena, Mr D. Mably, a qualified and experienced tree surgeon and arborist, and Lady P. Burston, Mr. R. Wallman and Mr. T. Wait, all occupants of properties abutting the subject land.
The Subject Land
4 The subject land is located on the southern side of Brougham Place, and comprises portion of Town Acre 728, City of Adelaide. It is rectangular in shape, having a frontage to Brougham Place of 23.368m and a depth of 64.465m, having a total site area of 1506m². The land slopes down from its Brougham Place frontage to its rear boundary, the total fall between the front and rear boundaries being some 4m.
5 On the land is located a two-storey detached dwelling, set back approximately 5m from the street alignment. The house is set back from the eastern, western and southern boundaries of the subject land by approximately 5m, 2m and 45m respectively. The ground floor level of the existing dwelling is some 1-1.5m below footpath level, in common with the dwellings on either side of the subject land. To the rear of the dwelling is an in-ground swimming pool and a large outbuilding, the latter being located in the south-eastern corner of the allotment. A driveway on the eastern side of the dwelling provides access to the outbuilding from Brougham Place.
6 The rear of the allotment contains a number of mature trees, including a very large Jacaranda and a large Camphor Laurel.
The Locality
7 The subject land falls within the R14 Cathedral Precinct, and forms part of the predominantly residential Brougham Place streetscape between King William Road and Bagot Street. While there were minor variations between the localities defined by those town planners who gave evidence, the locality was generally agreed to comprise the area bounded by King William Road to the east, Brougham Place to the north, Bagot Street to the west and Kermode Street to the south.
8 The land is presently occupied by one of a group of dwellings on the southern side of Brougham Place, between King William Street and Bagot Street. To the immediate west is a single-storey bluestone villa, and beyond that, extending to the Bagot Street intersection, four two-storey attached dwellings. West of Bagot Street are two two-storey townhouses.
9 To the east of the subject land there is a local heritage-listed stone building, converted to four apartments (2 per floor) with an approximate roof height of 9.0m above street level. At the rear of this building, four attached two-storey townhouses have been constructed, with a driveway to the eastern side of the stone building providing vehicular access to the carparking and manoeuvring area located between that building and the townhouses.
10 Further to the east, on Brougham Place, there are four two-storey townhouses and one three-storey townhouse. On the corner of Brougham Place and King William Road is an office building, ranging in height from four to six storeys. On the eastern side of Bagot Street there is a five-storey apartment building (No. 22) and two-storey offices (No. 12).
11 The public gardens between Brougham Place and King William Road are predominantly grassed, with scattered trees. Despite the proximity of King William Road, which carries large traffic volumes, the overall amenity of the locality is high.
The Proposal
12 Subsequent to its refusal by the Council, the subject proposal was amended by reducing the floor to ceiling height of the habitable levels, and by dropping the floor level of the undercroft carpark. The combined effect of these changes was to reduce the overall height of the proposal by 1.1m. It was common ground between the parties that the amended, rather than the original proposal, should be the subject of these proceedings.
13 Each apartment in the proposed development would contain three bedrooms, an ensuite bathroom, a library/study, living, dining and family rooms, kitchen and a box room. A shared entrance foyer at the ground floor level would provide access to the two ground floor apartments and to a lift providing access to a first floor foyer and first floor apartments. Carparking for a total of twelve cars would be provided in the undercroft level, on the basis of 2 garages and one visitor carpark per dwelling. Vehicular access to the undercroft would be via a driveway from the eastern corner of the Brougham Place frontage.
14 As a consequence of the fall in the subject land, the overall height of the building would vary from 8.929m to the top of the parapet at the front, where the undercroft level is almost wholly underground, to 11.779m to the eaves at the rear, where the floor of the undercroft is slightly above ground level.
15 The front of the building would be set back 8.3m from the street frontage, with columns supporting balconies at the first floor level set back 5.5m. Setbacks from side boundaries would range from 2.0m to 4.435m. At the rear, the upper levels of the building would step back, with setbacks from the rear boundary of 6.0m, 9.0m and 13.5m for the undercroft, ground floor and first floor levels respectively.
16 Proposed construction materials are a stone front elevation, rendered side walls and painted western red cedar windows. Over the front, narrower section of the building, the low-pitched hipped roof would be concealed behind a parapet wall. To the rear, the roof configuration would be similar, but without a surrounding parapet.
17 A series of decks and terraces on the front, side and rear elevations of the proposed apartments would provide outdoor living space for each. Overlooking to neighbouring properties would be prevented by external screens and, for the rear terraces, by horizontal extensions to the terrace parapets. Glazing to windows and doors to side elevations would be obscure glass to a height of 1.7m, or full height, in order to prevent possible overlooking therefrom.
18 Small, grassed areas are proposed at the front and rear of the building, and elsewhere, landscaping with native and exotic trees and shrubs. It is further proposed to construct new side and rear boundary walls to a height of 3.0m, in materials selected in consultation with adjoining property owners.
Relevant Development Plan Provisions
19 The subject land is located within the R14 Cathedral Precinct as illustrated in Diagram C (North Adelaide Precincts) in the Development Plan for the City of Adelaide. Within that precinct "dwelling" is designated as a desired use by General Principle 4, read in conjunction with the Residential Land Use Chart. The Desired Future Character Statement for the R14 Precinct, referring to that part of the precinct within which the subject land is situated, includes the following:
R14 Cathedral Precinct
"The Cathedral Precinct should remain a residential area which has a unique character due to its distinctive topography, its diverse range of nineteenth century architecture, its several different yet cohesive townscapes and its extensive Park Lands frontage....................
Development along the Park Lands, Palmer and Brougham Places frontages should complement the character of these respective townscapes and be of a high standard of design appropriate to such locations................
Cohesive and dignified lines of buildings set behind attractive public and private landscaping should visually define the perimeter of the Precinct. Development along streets within the Precinct should contribute to their character and amenity with on-site landscaping."
USE OF LAND
"The primary use of land in the Precinct should be residential. No development in the Precinct should result in the net loss of residential floor area."
20 The relevant Townscape Context provisions for the R14 Cathedral Precinct are as follows:
"Development should respect and enhance the nineteenth and early twentieth century townscapes of the Precinct.
Along Pennington Terrace, Palmer and Brougham Places the distinctive townscapes comprise elegant residences overlooking the formal gardens of the Park Lands. On other street frontages more closely developed terrace houses, detached dwellings and small cottages establish the character.
Throughout the Precinct, development should complement the cohesive and distinctive character of individual streets. The design of new buildings should complement the character of the locality with regard to scale, subdivision pattern, massing, composition, architectural detailing, materials and colour. Buildings should be modelled and articulated, incorporating pitched roofs, verandahs, balconies, decorative architectural elements and ornamentation. Buildings should exhibit a high proportion of solid to void in the composition of facades.
Development should comprise detached and semi-detached houses of varying size and scale. Other dwelling types may be appropriate provided their overall form and composition is sympathetic to existing development in the Precinct. In addition development fronting the streets described below, is required to maintain the existing scale and enhance their distinctive townscape character:
(a) Brougham Place, Palmer Place
The Brougham Place and Palmer Place frontages should retain a low scale, late nineteenth century detached housing character in contrast to the larger mansion buildings along the northern edge of Brougham and Palmer Places. Development comprising self-contained dwellings within a larger building may be appropriate provided the architectural style is in harmony with the traditional built-form of the Precinct.............."
21 General Principles 15, 16 and 31 require development to comply with the Precinct's desired future character in respect of Built-form, Townscape, Environment, Amenity, Building Height and Setbacks and On-site Landscaped Open Space. The relevant DFC provisions are:
BUILT FORM
"Density
Basic and maximum plot ratio: 1.0
Dwelling unit factor: 200 Square metres west of King William Road, and
nil east of King William Road.
Height, Scale and Siting
The maximum building height on the frontages to Pennington Terrace, King William Road and the south side of Kermode Street........... is nine metres or three storeys. Development on these frontages may achieve a more imposing and less domestic scale that elsewhere in the Precinct. In other parts of the Precinct the maximum building height is six metres or two storeys.
Development should maintain the existing pattern of development characterised by free-standing buildings set within landscaped grounds. Setbacks to buildings from allotment boundaries should be consistent with those prevailing in the street in which the development is situated."
ENVIRONMENT AND AMENITY
"On-site landscaped open space
A minimum of 20 percent landscaped open space should be provided on the site of any development, in accordance with Principle 31 for siting, amenity and screening purposes. Each house in a development should provide as part of the landscaped open space, a private landscaped open space of at least 20 square metres with a minimum dimension of 3.5 metres.
Landscaping included in a development should contribute to the desired planting character of the Precinct wherever building set-backs from boundaries permit."
22 Other Development Plan provisions of particular relevance to the subject proposal are Principle 46 (Traffic Access and Safety), Principle 51 (Car Parking Residential District), Principle 52 (Car Parking Areas-Design), Principle 33 (Trees), Principle 38 (Energy Efficiency), Principle 39 (Micro-climate and Sunlight), Principle 40 (Privacy) and Principle 45 (Storage and Refuse).
Assessment
23 It was common ground between the parties that the subject proposal met the qualitative standards prescribed by the Development Plan in respect of plot ratio, dwelling unit factor, landscaped open space, private landscaped open space, and car parking. The primary areas of contention between the parties related to two issues:
(1) the extent to which the proposal satisfied the building height requirements of the Development Plan;
(2) the extent to which the proposal was consistent with the desired future character for this part of the R14 Cathedral Precinct.
(1) Height
24 Principle 16 (Building Height and Setbacks) relevantly provides as follows:
"Maximum building heights have been established for each Precinct and are set out in the Statements of Desired Future Character. For each maximum building height, a specified maximum number of storeys applies.
Development which exceeds the maximum building height and the specified maximum number of storeys as indicated in the Desired Future Character Statement is non complying."
25 "Maximum building height" is given the following meaning in the City of Adelaide Plan:
"The maximum vertical distance between the median natural or finished ground level at any point or any part of the building and the ceiling height of the top most storey."
26 The Development Plan defines "storey" as follows:
"that portion of a building which is situated between the top of any floor and the top of the floor next above it, and if there is no floor above it, that portion between the top of the floor and the ceiling above it. It does not include a floor located more than 1.5 metres below the median natural or finished ground level or the roof top location of plant and mechanical equipment."
27 Again, it has common ground between the parties that, inasmuch as the floor of the basement carparking area was set 1600m below the median ground level of the subject land, it did not constitute a "storey" and accordingly, the subject proposal comprised a two-storey building.
28 The evidence of Messrs Tutte, Bechervaise and Burton was that the proposal satisfied the height requirements of Principle 16 insofar as it was a two-storey building, albeit that, at a point approximately 13.5m from the southern boundary of the subject land, it was approximately 11.5m in height. Their view was that Principle 16 was satisfied if the building was either two storeys in height, or had a maximum height of 6m.
29 Mr. Jensen, in evidence, took a different view. In his opinion, the proposal, while technically complying with the two-storey height limit specified for this part of the R14 Precinct, clearly appeared as a three storey-building when viewed from the side and rear, whereas, in his view,
"the intent of the Development Plan with respect to placing a two-storey height limit is to ensure that a building has the general form of a two storey building as viewed from important viewing points such as public streets and adjacent private properties."
30 In forming this view, Mr Jensen drew support from the decision of Judge Trenorden of this Court in Pawmac (No 1) Pty Ltd v Corporation of the City of Adelaide [1998] SAERDC 539, in which Her Honour commented, with reference to the measurement of maximum building height under the Development Plan for the City of Adelaide, that
"It is important to keep in mind the purpose for which a building height is prescribed. It is sensible to assume that the height limit is to be measured from the perspective of a viewer of the proposed building, as it is a prescription limiting the mass of the built form."
31 Mr. Jensen calculated that the Brougham Place elevation of the proposed building would be significantly higher than the immediate adjoining dwellings to the east and west of the subject land, the floor level of the uppermost floor being above the eaves height of the single-storey dwellings to the west, and the top of the parapet being significantly higher than the eaves height of the two-storey heritage-listed building to the east. An even greater impact on adjoining properties would, in his view, occur towards the rear of the subject land, where the building had a height and appearance consistent with a building of 3-4 storeys, with a corresponding bulk and massing. Having regard to the proposal's relationship with adjoining properties, Mr. Jensen concluded that:
"the building height is clearly significantly at variance with the relevant provisions of the Development Plan, with the impact of this height having particular effect:
(a) towards the rear of the property and on adjacent properties and
(b) on the streetscape and relationship to adjacent buildings."
32 Mr Hayes submitted, in my view, correctly, that the correct interpretation of the reference to maximum building height in the Desired Future Character Statement, read in conjunction with Principle 16, was that, if a proposal exceeded both the prescribed number of storeys and the height in metres, it was non-complying. If it failed to meet one of the two, it had to be assessed against the qualitative provisions of the Development Plan, in terms of the consequences and impacts, if any, of the additional height proposed.
33 The use, in Desired Future Character Statements generally throughout the City of Adelaide Plan, of maximum building heights expressed in both metres and number of storeys, it seems to me, was intended to provide a degree of flexibility in two situations:
(a) where the floor to ceiling heights characteristic of existing development in a locality required new development to exceed the levels characteristic of contemporary development (and generally reflected in the DFC metric height limits) in order to achieve an appropriate scale relationship; and
(b) where the incorporation of undercroft carparking raised the height of a proposed building without constituting a storey in it own right.
34 On that basis, I have concluded that the fact that the subject proposal, while meeting the DFC maximum height limit of two storeys, substantially exceeds the metric limit of 6.0m does not, of itself, constitute a basis upon which the proposal should be rejected. Rather, it becomes necessary to consider the height of the proposal in the context of the relevant qualitative provisions of the Development Plan.
(2) Desired Future Character
35 The Desired Future Character Statement for the R14 Cathedral Precinct establishes a range of building heights for different parts of that Precinct. That limit is 9m or three storeys for the frontages to King William Road, Pennington Terrace and the south side of Kermode Street, where development "may achieve a more imposing and less domestic scale than elsewhere in the Precinct." Elsewhere in the Precinct (including the subject land) the maximum building height is six metres or two storeys. Similar gradations occur in other Precinct. For the purposes of the definition of "maximum building height" in the Development Plan for the City of Adelaide, the maximum height of the subject proposal is approximately 10.3m, measured at either median natural or finished ground level (Exhibit A6). Thus, the proposal exceeds the maximum height specified for a part of the Precinct wherein three storey, rather than two- storey development is envisaged.
36 The Townscape Context provisions which refer specifically to that part of the Precinct within which the subject land is located require development to "retain a low scale, late nineteenth century detached housing character in contrast to the large mansion buildings along the northern edge of Brougham and Palmer Places" although "Development comprising self-contained dwellings within a larger building may be appropriate provided the architectural style is in harmony with the traditional built form of the Precinct......."
37 Development is also required to "maintain the existing pattern of development characterised by free-standing buildings set within landscaped grounds" and to have setbacks from allotment boundaries which are "consistent with those prevailing in the street in which the development is situated." The design of new buildings "should complement the character of the locality with regard to scale, subdivision pattern, assessing, composition, architectural detailing, materials and colour......"
38 Within the locality of the subject land, a considerable amount of infill development has occurred, this primarily taking the form of two-storey townhouses. To the south, on the northern side of Kermode Street, a mixture of single and two-storey developments exists, generally on large allotments. The development to the immediate east, which is set back some 6.0m from its front boundary, has an eaves height some 7.0m above gutter level and a ridge height of some 9.0m above gutter level. That to the immediate west, which has a primary setback of 7.0m, has an eaves height of approximately 3.5m, and a ridge height of approximately 6.0m. By comparison, the subject proposal would have a height of 8.929m at a setback of 8.3m. Having regard to other development within the locality, to the setback, height, massing, composition and materials proposed, I am satisfied that the proposed building would sit comfortably within the Brougham Place townscape as viewed from the street.
39 Of more concern, however, is the form of the building as it extends to the south. Viewed from the east, west or south it will be a very imposing structure, of a height consistent with a building of 3-4 storeys. As a consequence of the extent to which the allotments with a frontage as Brougham Place fall towards Kermode Street, it will be highly visible from a number of vantage points within the precinct, and I agree with the evidence of Mr Jensen that it is not of a scale and massing which would complement the character of the locality, nor of an architectural style which, from any viewpoint other than Brougham Place, is "in harmony with the traditional built-form of the precinct."
40 Principle 15 requires compliance with Built-form, Townscape, Environment and Amenity controls specified in the General Principles and in the relevant Desired Future Character Statement, and goes on to say:
"This may mean that stated plot ratios cannot be achieved in all instances and that maximum building heights and/or maximum dwelling densities may not be attainable on a particular site."
41 I have already noted that the proposal satisfies plot ratio and dwelling unit factor limits applying to the subject land, and also satisfies the stipulated maximum building height in terms of storeys. However, the subject land is a relatively large allotment in the context of its locality, and the appellant's desire to achieve a single level floor plate from the front to the rear of the building produces a structure of a bulk and massing which is simply out of keeping with other development in the locality, suggesting that compliance with the Desired Future Character controls will not allow full realisation of the nominal development potential represented by the applicable plot ratio and dwelling unit factor controls.
Conclusion
42 Having taken into account all that was put before me, what I saw on the view, and the relevant provisions of the Development Plan, I have concluded that the subject proposal is at odds with the desired character sought for the R14 Cathedral Precinct, primarily as a consequence of its excessive height and the resultant bulk and massing. Accordingly, I have further concluded that the decision of the City of Adelaide, refusing consent to the proposal, was correct, and should be confirmed.
43 There will be an order accordingly.
2
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