Likouresis v City of Burnside No ERD-99-1341 [2000] SAERDC 9 (29 February 2000)

Last Updated: 3 April 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hutchings

Hearing

13/01/2000.

Catchwords

Semi detached dwellings refused at Glen Osmond - Residential R450 Zone - pleasant tree-lined street - quantitative and qualitative provisions of Plan - housing as fashion - predominant character of buildings - proposal in harmony - consent with conditions.

Materials Considered

• Wundke & Aitchison v Corporation of the Town of Walkerville [2000] SAERDC 12, considered.

Representation

Appellant JOHN LIKOURESIS:
Counsel: MR JOHN MCELHINNEY - Solicitors: WARD & PARTNERS

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

ERD-99-1341

Judgment No. [2000] SAERDC 9

29 February 2000

JOHN LIKOURESIS

v

CITY OF BURNSIDE

ERDC No. 1341 of 1999

[2000] SAERDC 9

THE COURT DELIVERED THE FOLLOWING DECISION

1. This matter concerns the demolition of an existing dwelling and the erection of two two-storey semi-detached dwellings at 2 Myrona Avenue, Glen Osmond.

2. Mr J Likouresis of 103 Hill Street, North Adelaide was refused consent for this proposal on 19 October, 1999, having lodged an application on 30 August, 1999 with the City of Burnside. He appealed and no compromise having been reached, the matter came to this inquiry at which time he was represented by Mr John McElhinney, of counsel, and the Council by Mr Gavin Leydon, also of counsel. Evidence was given by Mr John Ellis, a planning consultant and Ms Penelope Edwards who lives next door (on the west) to the subject land.

3. Mr Ellis described the subject land thus:

"The land is described as Allotment 302 of Filed Plan 28518, which is a slightly irregular parallelogram with a frontage to Myrona Avenue of 20.93 metres, an average depth of 44.01 metres and an area of 788 square metres. There is a noticeable slope on the subject land, with a fall of about 1.7 metres from the south-eastern corner of the boundary to the north-western corner of the street frontage."

4. On page 23 of the copy documents (Exhibit R1) Ms Catherine Orford, the town planner who reported to Council, noted that:

"The subject land currently contains an existing single storey bungalow, which appears to be in poor condition and significantly cracked. The site itself is somewhat overgrown and not well maintained. There are no significant or mature trees on the site."

5. The proposed development consists of two mirror imaged attached dwellings of three bedrooms, one of which forms an upper storey situated at the front of the dwelling above a one-car garage. Each dwelling has a lounge, a courtyard, a "meals/family" area looking into the rear yard and the usual array of bathrooms, ensuites, kitchens and other wet areas. Each has a first floor balcony which stands forward and above the garage door. Extensive paving is proposed in the front yards - about 75% of each yard according to Mr Ellis. There will be landscaped areas along the common boundary. In style, the dwellings can perhaps be described " .... as ones that seek to copy the forms and details of the Victorian Georgian and Victorian Regency styles of the 19^th Century". (Wundke and Aitchison v Corporation of the Town of Walkerville [2000] SAERDC 12).

6. Myrona Avenue is a pleasant, curved tree-lined street. Between Glen Osmond Road and View Street to the east (and a little beyond) there are, on the south side, relatively large well maintained detached dwellings behind well maintained front yards. In the vicinity of the subject land these are of the bungalow style. They give a consistent appearance to the streetscape. Opposite on the northern side of the avenue, a side-yard, two detached dwellings and attached dwellings on the corner of View Street give a less consistent appearance. The combination of street trees, solid front fences or high hedges, free form front gardens and bungalows give an informal appearance to the street. The style of the proposed semi-detached building will be formal with precise angles and smooth finishes. Interpreting the proposed plans in Exhibit R1 (copy documents) and the artist's impression (Exhibit A3), formality can also be ascribed to the treatment of the front garden; paving, roses in rows, "mop-headed" shrubs and a pillared and palisaded front fence.

The Development Plan

7. The subject land is in the Residential R450 Zone which has one objective, viz,

"Objective 1: A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

8. The Principles of Development Control for the zone set out detailed quantitative provisions for the size and dimensions of allotments and set backs, floor areas, building site coverage and areas of private open space. Additionally there are qualitative provisions. These include Principles of Development Control:

"6 Any development comprising a dwelling or dwellings in any configuration (including any carport or garage but not including any verandah, pergola or other garden structure) should: (a) have a bulk and floor space appropriate to the character and amenity of the locality in which the land is situated; (b) provide space around buildings arranged in a manner which will reasonably maintain and enhance the predominant character and amenity of its locality in which the land is situated and provide landscaping opportunities consistent with that character and amenity;" "7 Buildings should be set-back from site boundaries (not being frontages to a road), in a manner which will avoid adverse impacts such as: (a) overshadowing; (b) overlooking; (c) loss of privacy; and (d) undue enclosure of private open space, ...... "

There are Council-wide provisions dealing with qualitative matters; eg,

"Objective 28: A high standard of design in respect of the appearance of development."

and Principle of Development Control

"121 Each building should be located and designed in respect of its: (a) height; (b) size; (c) scale; (d) colour; (e) form; (f) siting; (g) architectural style; and (h) materials of construction, to harmonize with conditions desired as indicated by the objectives or principles of development control for the relevant zone, or otherwise the predominant character of other buildings in the locality."

Mr Ellis stated ".... that the proposal complies with all of the numerical standards of the Development Plan" and Ms Orford in her report to the Council on p24 of Exhibit R1 said:

"The proposed development meets all of the numerical guidelines contained within the Development Plan in relation to site coverage, private open space dimensions and provision, front setbacks and side boundary setbacks to both the upper and ground floor levels."

However, development proposals must align with qualitative as well as quantitative provisions. As noted above, the architectural style of the proposed building will be such as to pick up the formalities of Victorian Georgian/ Regency styles. Hence its smooth plastered walls, lack of eaves, wrought iron and formally arranged elements will contrast with the bungalows and other houses of other styles in the street which are arranged more asymmetrically, have eaves and verandahs and exposed brick. Its proposed garden also will project formality. But is this contrast such that it will offend the qualitative provisions of the Plan to the extent that it should be refused?

9. Dwelling houses are as much a "fashion item" as any other consumer product, albeit the turn of the fashion wheel is far slower than seasonal. Over the last decade, new dwellings (or at least those that have come before the Court) have more often than not exhibited a style characterized by finials, quoins, lead lighting, "olde worlde" detail heaped upon detail, fretwork and the like. This style now seems to have run its course and dwellings such as that in this matter are coming into vogue. Should planning authorities and the Court interfere in this process and stop the fashion wheel at a particular point in time? The suburban allotment has traditionally been the one place in city development where individuality can be expressed. Over the decades and centuries a wide variety of housing styles have come and gone, some of which are now seen - either because of nostalgia and sentimentality or because of objective research by design historians - as worthy of emulation. Increasingly Development Plans are being amended to reflect this. However, that is not the situation here.

10. Nevertheless, Principle of Development Control 121 seeks buildings which "harmonize (with) the predominant character of other buildings in the locality". Character in this sense has a different meaning than that applied to the overall character of a locality; the second being an amalgam of planning and urban design factors, the first an amalgam of architectonic factors which are conveniently listed in Principle 121. Having regard to this list, except for style I do not find that the proposed building is out of kilter with the building character of the locality, notwithstanding its style may not please some of those who Patrick Troy calls "czar(s) of taste and design" (The Perils of Urban Consolidation, The Federation Press, 1996, p44). As far as the overall character of the locality is concerned, I find the proposed development will be absorbed within the locality's character and is acceptable in terms of zone Principle of Development Control 6.

11. Ms Edwards was concerned, among other things, that her enjoyment of her backyard could be significantly lessened by the proximity of the outdoor living area to be established in the re-entrant angle of the family/kitchen area of the western dwelling. In essence, this illustrated Mr Leydon's submissions that the proposal was one of over development. The issue of over development is one that continuously exercises the mind of the Court. However in this instance, although (as Mr Leydon was at pains to point out) the proposal goes right to the allowable limit of the quantitative provisions, it does not go further and offend the qualitative provisions to the extent that it can be marked with the over development tag.

12. The proposal is satisfactory in terms of the relevant provisions of the Development Plan and within the context of its locality. Therefore I intimate I will approve it. At the conclusion of the proceedings, Mr McElhinney made submissions about conditions, adding that Mr Likouresis would accept those as drafted on page 25 of the copy documents (Exhibit R1). If the parties agree, and advise the Court by Friday 18 February 2000, I will order accordingly. If not, I ask them to return at 9.30am on Thursday 2^nd March, 2000.

13. Following my memorandum of 7 February 2000, the parties conferred and agreed upon conditions. Accordingly it is the decision of the Court that this appeal is allowed, the decision of the Council is reversed and Provisional Development Plan consent is granted to Development Number 180/00990/99/CA, subject to conditions thus:

1. All landscaping shown on the approved plan shall be completed prior to the occupation or use of the development herein approved. Such vegetation, including those trees shown to be retained, shall be maintained at all times in good heart and condition or be replaced to the reasonable satisfaction of Council.

2. New or extended side and rear boundary fencing utilizing either double-sided colorbond, timber or masonry, including any integrated lattice or retaining wall thereunder shall be at the applicant's costs, erected to a minimum of 1.8m in height above natural ground surface level measured from the higher ground level, prior to occupation of the building hereby approved, unless evidence in writing is received by the Council of agreement with the effected adjoining neighbour to an alternative arrangement.

3. The bench level as shown on the approved plan shall be verified by a licensed surveyor with a copy provided to Council prior to the commencement of footings. Any variation to the approval levels must be approved in writing prior to the commencement of footings.

4. Any stepped or change in level (other than where fill is not greater than 200 mm in depth or height and is for landscaping, gardening or other similar purposes) in association with the development herein approved shall be retained by a properly constructed concrete or masonry retaining wall. Fencing, timber sleepers etc must not be used to retain soil, paving etc.

5. The development shall be completed in all respects in accordance with the application and the conditions of this consent prior to the occupation of either dwelling herein approved.

6. The applicant shall take all care to protect the climbing roses on the brush fence between the subject land and the land at 2a Myrona Avenue.

7. The existing olive hedge at the rear of the subject land shall be retained.

8. The existing brush fence between the subject land and the land at 2a Myrona Avenue which extends from the street frontage to a point level with the front wall of the dwelling at 2a Myrona Avenue shall be retained, and so far as necessary shall be reinstated to its condition prior to any work commencing on the subject land.

The parties agreed to the appending of the following notes:

1. The engineer's footing design for the building should take into account any existing trees to be retained on site or nearby, or required by condition of this approval to be retained, and their likely mature height, as trees influence soil movement. If additional tree planting is proposed or required to be established as part of this development approval, this should also be brought to the attention of the footing design engineer at the initial design stage as a precaution against possible damage to the building at some later date.

2. This consent does not include approval for new driveway and crossover construction. Detailed driveway design is to be provided with the application for Building Rules Consent and approved prior to issue of Development Approval.

3. The established street trees in front of the subject land shall be retained