Rainsford v City Burnside & Building Design Studio No ERD-99-1200 [2000] SAERDC 7 (7 June 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hutchings

Hearing

13/12/1999 to 14/12/1999, 06/03/2000, 02/05/2000, 04/05/2000, 07/06/2000.

Catchwords

Motel extension at Glen Osmond approved - representor appeal - Local Centre Zone - zone intent vis-a-vis existing character - parking - smaller proposal acceptable - memorandum - further evidence - approval with new conditions.

Materials Considered

• Courtney Hill Pty Ltd v South Australian Planning Commission 59 SASR 259;
• Unley Property Development v City of Holdfast Bay ERDC No. 1159 of 1998, considered.

Representation

Appellant RAL RAINSFORD:
Counsel: MR JOHN MCELHINNEY - Solicitors: WARD & PARTNERS

Respondent CITY OF BURNSIDE:
Counsel: MR GAVIN LEYDON - Solicitors: NORMAN WATERHOUSE

Respondent BUILDING DESIGN STUDIO:
Counsel: MR BRIAN HAYES Q.C. - Solicitors: MANOS & ASSOCIATES

ERD-99-1200

Judgment No. [2000] SAERDC 7

7 June 2000

RAL RAINSFORD

v

CITY OF BURNSIDE

and

BUILDING DESIGN STUDIO

ERDC No 1200 of 1999

[2000] SAERDC 7

THE COURT DELIVERED THE FOLLOWING DECISION

1. On 20 September 1999 consent was granted for a "two storey motel in association with existing motel" at 369 Glen Osmond Road, Glen Osmond by the City of Burnside, to the Building Design Studio on behalf of Carrabs Nominees. Having lodged a representation Mr Ral Rainsford, of 385 Glen Osmond Road, appealed. The matter went to conference but no settlement or compromise was reached so it came to this inquiry at which time Mr Brian Hayes, QC, and Mr George Manos, of counsel, represented Building Design Studio, Mr Gavin Leydon, of counsel, the City and Mr John McElhinney, of counsel, Mr Rainsford. Evidence was given by Mr John Ellis, planning consultant, Mr Michael Osborn, MRAPI, Messrs Frank Siow and Phillip Weaver, traffic engineers and Mr Geoffrey Redin, architect.

The Subject Land

2. Mr Osborn identified the subject land as:

". Allotment 79, Filed Plan 15711, Hundred of Adelaide and is contained in Certificate of Title Register Book Volume 5135 Folio 162; and . Allotment 78, Filed Plan 15711, Hundred of Adelaide and is contained in Certificate of Title Register Book Volume 5135 Folio 538. Allotment 79 is irregular in shape with a frontage to Glen Osmond Road of 18.26 metres and a site area of approximately 837 square metres. The allotment is vacant, other than for some minor vegetation located immediately adjacent to the northern boundary. There is presently no vehicular crossover to Glen Osmond Road. Allotment 78 has frontage to Glen Osmond Road of 58.52 metres, Queens Lane of 112.55 metres and Allawah Avenue of 48.77 metres and contains the Jacksons Motor Inn. The existing Jacksons Motor Inn .... is in the form of a part two storey building fronting Glen Osmond Road which contains the reception area, restaurant and conference facilities and several motel units. The majority of motel units are contained in a single storey building which is located to the rear of the main two storey motel building. .... Carparking for a total of 58 vehicles is provided on this site."

3. Mr Ellis describes the proposed two-storey motel building of 18 rooms thus:

"The proposed building is of a dog-leg plan, one room deep with access to the upper storey rooms via an external balcony. It is of a plain rectilinear design with its bulk accentuated by a parapet wall hiding the roof. The appearance would be dominated by the long, narrow southern wing, the main front of which scales from the elevation sketch as about 8.7 metres wide and 11.5 metres high to the top of the frontal parapet. There is a portico on the front, including a balcony for the upper front room and a porch for the ground level front room. These open living areas are about 0.8 metres from the Glen Osmond Road road-widening boundary. The wall adjoining the boundary with Chateau Moteur, alongside the main customer vehicular access to those premises, is proposed to be a plain precast concrete structure about 7.2 metres high and 37.6 metres long, as scaled from Elevation 3 of the proposal plans. The frontal parapet is to be freestanding and thin, projecting a further 1.2 metres above the line of the wall."

4. The subject land fronts onto Glen Osmond Road which is shown as a Primary Arterial Road on the Burnside (City) Structure Plan (Map Bur/1). This plan indicates a Local Centre within the arms of Glen Osmond Road and Portrush Road (a Secondary Arterial Road). Elsewhere land is designated as Living as it is westwards across Glen Osmond Road in the City of Unley (Unley (City) Structure Plan - Map Un/1).

5. To the north and south of the subject land along Glen Osmond Road are business premises. Opposite is Ridge Park which has the Glen Woodley Residential Estate (a "planned unit" development) to its south. South again is a convent. To the rear of the subject land are streets of detached residences; viz, Queens Lane and Allawah Avenue.

6. The heavily trafficked Glen Osmond Road forms a distinct edge between two urban scenes. To the west, uses and buildings are broadly spaced and are non-commercial. To the east they present a finer grain and are devoted to business. From Vine Lane south to the Glen Osmond/Portrush Roads intersection there is a line of closely spaced commercial activities offering a wide variety of goods and services all seeking to attract passersby by signs and other advertising techniques. Standing out from these are the Jacksons Motor Inn and the Chateau Moteur car dealership. Their sites are larger. Their buildings are higher, more prominent and are set within larger open areas. Travelling south along Glen Osmond Road, the motorist's eye cannot help but note the distinctive curving facade of the motel, then the open ground beyond it and finally the car yard, show room and advertising signs which are clearly visible across the open ground of the site for the proposed development.

The Development Plan

7. The subject land lies within the Local Centre Zone which has one Objective; viz,

"Objective 1: A zone accommodating a range of shops, offices, business, health and community service providers all being of a small-scale suited to servicing the needs of the local community."

8. The applicable Principles of Development Control for the Zone are:

"1 Development undertaken in the Local Centre Zone should consist of small-scale shops, offices, consulting rooms and commercial premises suited to meeting the needs of the local community." "4 Buildings should not contain one floor level directly above another floor level except where the lower floor level is for the provision of car parking space and the level of that floor is located not less than one metre below the predominant natural ground level for the site."

9. Neither a motel nor other tourist accommodation are referred to in these provisions, not being uses "suited to servicing the needs of the local community". This being so, is the proposed development generically unsuitable in this Zone in this locality? I think not. The Jacksons Motor Inn has been in existence for many years on a site adjoining a Primary Arterial Road which is the major entrance to Adelaide from the south-east and Victoria. As it and the many other motels along this road illustrate, such a location is realistic and sensible in both planning and business terms and so is the proposed extension. The provisions also refer to "small-scale". Even without the extension, the motel could not be described thus; neither could the Chateau Moteur car dealership. Other businesses nearby could also be considered to be of larger scale; for example, the bottle depot while covering a relatively small site, appears to have an intensity of activity above that which could be considered "small-scale".

10. Having regard to use, scale, intensity and appearance, the Zone, or at least that part of it facing Glen Osmond Road, has a character at odds with that sought by the Objective. The expansion of the motel in these circumstances is generically suitable. It is a long-standing planning precept - particularly with regard to development control in built-up areas - that zoning intentions and the existing character of a locality must be carefully balanced; a point picked up for example in Courtney Hill Pty Ltd v South Australian Planning Commission 59 SASR 259. One cannot, as seemed to be suggested by Mr Ellis, treat the Zone's Objective as a strategy to be pursued come what may.

11. I turn now to how the proposed development will fit within its environs and on its site. As far as its appearance is concerned, it bears no relationship to the existing motel and little (except perhaps in shape) to the Chateau Moteur building. This bothered Mr Redin, who saw it as "un-neighbourly" and creating "disunity". Council-wide Principle of Development Control 97 sets out a check list of factors to be considered with regard to how the location and design of buildings should "harmonize with .... the predominant character of other buildings in the locality." From the point of view of the items in the check-list, there is no predominant character with which the proposed development can harmonize. For example, other than to say the buildings have been designed with business purposes in mind, there is no consistent architectural style. One can only conclude that the situation is a hotch-potch. To introduce another building that Mr Redin describes as "fake Tuscan", is neither here nor there.

12. Principle 97 refers to siting and while there is no predominant character engendered by the siting of buildings on the various land parcels in the locality, "set-back" is a component in siting and is specifically referred to in the Development Plan by way of Council-wide Principle of Development Control 114 which states:

"114 Building development on a site with frontage to a road, where that development is:

(a) large in bulk or height in comparison with other buildings with frontage to the same road;

(b) to have a highly reflective or brightly coloured external surface; and

(c) not well screened from view by vegetation, land form or other buildings, should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as to minimize the visual prominence of the building when developed."

13. Although the building as such is not larger or bulkier than the existing motel or that of Chateau Moteur, Mr Redin was concerned that its elongated open "U" shape and the way in which it is to be angled to Glen Osmond Road would give an impression of bulkiness over and beyond its actual size. Mr Ellis was concerned it would truncate views to Chateau Moteur and that:

" .... the display for sale of motor cars, would be compromised by the reduction of visibility of its showroom by the proposed building."

Mr Osborn, while seeing the proposed building as " .... of a height and scale comparable" with adjoining buildings, drew attention to the proposal to establish landscaping which

" .... should assist in minimising the visual presence of the building when viewed from Glen Osmond Road."

The truncation of the views to one business by another in a commercial strip is not a planning issue as such. However, if it results in offence to sound urban design principles by way of clutter, discord or ugliness it does become an issue. In my view the proposed building will not detract from the visual amenity of the commercial strip. There again, it does little to enhance. Mr Osborn referred to landscaping but the area devoted to landscaping is small and it could be difficult to develop an "enhancing" landscape design.

Site Planning

14. The proposed development is an extension of an existing development. It will consist of 18 rooms and 14 carparks to be reached by a driveway which will be a continuation of the existing driveway to the west of the restaurant/reception building. As far as site planning is concerned, questions to be asked are whether the proposed extension will work satisfactorily with the existing development and whether it is practicable and workable in its own right. Many patrons will arrive by car, others by taxi and coaches. Those checking in by car who are allocated rooms in the extension could have a somewhat tortuous and possibly confusing route to follow from reception to their rooms. This may cause some conflict with those driving to existing rooms at the rear of the subject land in that both would appear to need to use Queens Lane (the public road on the north boundary) as part of their "circuit", albeit in different directions. The shifting of rubbish bins from the presently vacant site of the proposed extension to a location near the doors of the kitchen on the north side of the restaurant building may create congestion in the vicinity of the driveway to the existing motel rooms. These two matters suggest that the existing development is at the limit of its ability to function satisfactorily in site planning terms and that perhaps the extension may push it beyond the limit. However none of the experts were in a position to answer definitively and it may be that with careful organization the situation will remain satisfactory.

15. With respect to the second question, both traffic engineers had concerns about the practicality of the carparking spaces at the eastern end of the driveway in the extension - particularly spaces 11 to 14. Just north of the boundary of the development site in the vicinity of these spaces is a ramp which slopes down from the site onto the area containing the existing development. There is a marked change in level and the ramp provides access to the base of a mobile phone tower situated at the rear of the westernmost existing motel units. The existence of this ramp and the amount of space available between the site boundary, the garden area adjoining it and the rear of the carparking spaces (as shown on Exhibit E) place question marks over these spaces. Indeed, Mr Weaver was of the view that some of these spaces would not be usable unless the "'ramp' (was) modified to a flatter grade to provide access to the carparking spaces".

16. It was difficult if not impossible for the Court to appreciate what effects these changes in level etc may have on the carparks in question and also on what consequences they may have on relationships between the site of the proposed extension, the existing development and the telephone tower. In large part this was caused by the plans forming Exhibit A which left much to be desired in the competency of their drafting, not only in relation to changes of levels in the vicinity of the aforementioned carparks but elsewhere. All of the expert witnesses struggled, to some degree or other, in their interpretation of these plans. Perhaps if there was latitude on the subject land this would matter little. But as noted above, the existing development presents little room for manoeuvre and the issue of the number of carparking spaces was seen as critical by the parties.

17. For example, Council-wide Principle of Development Control 42 states:

"42 With the development of a motel there should be provision for car parking at the following rates: (a) not less than one car parking space for every guest room or unit; and (b) where a restaurant is part of the development and where that restaurant is to be licensed under the provisions of the Liquor Licensing Act, 1985, not less than one carparking space for every five seats provided or able to be provided therein."

The proposed extension seeks to provide 14 spaces for 18 rooms. This shortfall did not concern Mr Weaver. His investigations of the motel's operations and occupancy indicated that about 25% of patrons arrived by bus, that the weekday occupancy rate was about 70%, and that use of the restaurant is relatively low. Inter alia, he said this identified "that the peak parking demand of the Motor Inn and the dining areas is well below the capacity of the motel's car park" and that on the basis of his investigations, he concluded that:

" .... there should be a peak parking demand for approximately 16 spaces associated with the proposed additional 18 rooms of the Motor Inn. This demand would be met by the provision of 14 spaces in front of the proposed additional motel units plus two spaces within the existing front car parking area. This area is underutilized and there were at least 10 spaces available within this area during the period of the parking surveys."

On the other hand, Mr Siow was concerned. He saw Principle of Development Control 42 as a crucial provision which was backed up by an oft referred to professional reference, viz. - "Guide to Traffic Generating Developments R.T.A., NSW" which used the standard of

. 1 parking space for each motel unit, plus: . 1 parking space per 2 employees.

He saw no reason to relax this provision in this instance.

18. On the simple issue of numbers therefore, there is a difference of opinion between two experienced traffic engineers. However, given that Mr Siow, like Mr Weaver, was concerned about carparking spaces 11 to 14 in the proposed extension, they are at one as to whether there are enough usable carparking spaces. In other words, the proposed extension is not just four spaces short of those sought by Principle of Development Control 42, it could be, on the plans now before the Court, up to eight spaces short. This is unacceptable.

Conclusion

19. In generic terms, the proposed extension is acceptable in this zone in this locality. Moreover while it could not be said to enhance the quality of the locality, neither does it detract. As far as its workability on its site is concerned, however, it must fail. Clearly its carparking arrangements are unsatisfactory and offend the relevant provisions of the Plan to the extent that it must be refused.

20. Having so concluded, I comment that a proposal with two, perhaps four less rooms, could be acceptable. Critical space would be freed up for more carparking and also, as a "bonus", to enable more imaginative landscaping to be designed to the benefit of the locality's amenity.

21. I invite the second Respondent to consider the matters raised above, seek the advice of relevant site planners and traffic engineers, and to return to this Court at 9.30am on Thursday 24 February, 2000.

_____________________

22. The parties returned on 6 March 2000 and again on 2 May 2000. New plans were tendered (Exhibit F) reducing the number of rooms by two with increased landscaping and with modified carparking. Evidence was given by Messrs Siow and Weaver about carparking arrangements and also by Messrs Ellis and Obsorn about landscaping and site planning issues arising from my Memorandum of 25 January 2000. The site was again visited on 4 May 2000 in the company of the parties.

23. Some reference was again made by the two engineers to Principle of Development Control 42. Mr Siow restated his view that compliance with the principle was, for all intents and purposes, mandatory. Mr Weaver saw it as desirable but not essential in this circumstance. Given the nature and customer base of the motel, I prefer the opinion of Mr Weaver. With regard to carparking arrangements, having carefully considered the very detailed and precise evidence of the two engineers and having observed how proposed carparks 14 and 15 will be placed in juxtaposition with the existing motel buildings and the "telecommunications base station", I am satisfied that a workable solution has been achieved for the parking of vehicles on the development site. While there is no doubt that proposed spaces 14 and 15 fit oddly into the area occupied by the buildings of the existing motel which can perhaps be described, at best, as tired, they will not interfere with the functioning of the existing motel. Nor will they prevent the necessary access by technicians to the base station.

24. Mr Hilditch rightly reminded me that "Safety is a basic concern of town planning" (Unley Property Development v City of Holdfast Bay, ERDC No. 1159 of 98). However, the circumstances in that matter were different. I have carefully considered Mr Siow's views about pedestrian movement as I have those of the other experts and I am satisfied that the proposed layout is satisfactory.

25. Finally, with regard to the appearance of the proposed development from Glen Osmond Road, the extra setback distance and the greater scope for landscaping by the deletion of the two rooms will improve not only the subject land but also that of the streetscape more widely. Perhaps a new "character direction" for the east side of the road will result.

26. I ask the parties to confer on conditions having regard, inter alia, to balustrading along the west side of carpark 14 and ensuring that the dimensions of this carpark and that of 15 as set out on Exhibit F conform to the relevant standard (as of course will all others). I do not wish to prolong this matter. If the parties agree on conditions, I will issue an order on written receipt of their advice by Monday 5 June, 2000. I have noted the conditions applied by the Council (page 42, Exhibit R1). These are acceptable to me in their general intent.

________________________

27. The parties returned again on 7 June 2000. After further submissions on conditions, it is the decision of the Court that this appeal is dismissed and that provisional development plan consent is granted to Development Number 180/00362/98/C3, being for the construction of a two storey motel in association with an existing motel at 369 Glen Osmond Road, Glen Osmond, subject to the following conditions:

1. All of the carparks, driveway and vehicle manoeuvring area/s (as per the amended plan dated 22 May 2000) shall be constructed, drained and paved with bitumen, concrete or paving bricks in accordance with sound engineering practice and appropriately linemarked to the reasonable satisfaction of Council prior to the occupation or use of the development herein approved. Note: Pervious pavers or paving systems are encouraged.

2. Each carparking space or area abutting a walkway, footpath, landscaped area, fence or shop frontage shall be provided with a vehicle wheel stop or 900 mm high bollard prior to the occupation or use of the development herein approved.

Any such wheel stop must be constructed of continuous kerbing of no less than 150 mm in height above the adjacent pavement level of the carpark to the satisfaction of the Council.

3. All parking areas are to be made available free of charge at all times to employees, visitors and all other users of the development herein approved.

4. All carparking areas, driveways and vehicle manoeuvring areas shall be maintained in a good and substantial condition at all times to the reasonable satisfaction of Council.

5. Vehicular access from Glen Osmond Road to the carparks for the rooms of the new motel shall be by way of the driveways on the western side of the existing motel.

6. All landscaping shown on the approved plan shall be completed within six months of the date of occupation of the new motel building. Such vegetation shall be maintained at all times in good heart and condition or be replaced, all to the reasonable satisfaction of Council.

7. Suitable wall climbing creepers and 'pencil pines' at 3 metre spacings shall be planted along the southern boundary of the site and in accordance with the requirements of Condition 6.

8. Any external lighting of the parking area shall be designed and located so as not to cause unreasonable disturbance to occupiers of adjoining land.

9. The development shall be completed in all respects in accordance with the application and the conditions of this consent prior to the occupation and use of the building herein approved.

10. That part of the subject land between the southern wall of the new motel building and the southern boundary of the subject land shall be checked for rubbish at least weekly and rubbish removed to the satisfaction of the Council.

Exhibit F shall remain on the file of the Court. There shall be an order accordingly