Marjanovic v City Charles Sturt & Building Design No ERD-00-751 [2001] SAERDC 10 (19 January 2001)

Last Updated: 9 April 2001

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hodgson

Hearing

23/10/2000 to 24/10/2000, 11/01/2001.

Catchwords

Development Act 1993 - third party appeal - application to upgrade existing retail liquor outlet and construct separate office tenancy - Local Commercial A Zone - wall on common boundary with adjoining residence sole issue in dispute - planning merits considered - wall important for security reasons - limited impact on adjoining property - no height limit or side setback imposed on range of complying forms of development in zone - questions of residential amenity influenced by proximity of dwelling to Commercial Zone - proposal generally consistent with relevant provisions of Development Plan - Council decision confirmed but conditions varied.

Materials Considered

• Development Act 1993 , referred to.
• Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85;
• McDonald's Australia Ltd v City of Payneham and Others PAT No. 151 of 1992, at 75, considered.

Representation

Appellant: NEVENKA MARJANOVIC
Advocates: MS J MARJANOVIC

Respondent: CITY OF CHARLES STURT
Counsel: MR K TREDREA - Solicitors: NORMAN WATERHOUSE

Respondent: BUILDING DESIGN STUDIO
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

ERD-00-751

Judgment No. [2001] SAERDC 10

19 January 2001

NEVENKA MARJANOVIC

V

CITY OF CHARLES STURT

and

BUILDING DESIGN STUDIO

(ERDC NO 751 OF 2000)

[2000] SAERDC 10

THE COURT ISSUED THE FOLLOWING DECISION:

1 This is an appeal against a decision of the City of Charles Sturt ("the Council") to grant provisional development plan consent to an application under the Development Act 1993 by the second respondent, which application was to undertake alterations and additions to an existing retail liquor outlet in the form of modifications to the facade, upgrading of parking, construction of a store (previously approved) and a separate office tenancy and provision of landscaping. Some relevant details are set out hereunder:

Date of application: 27 May 2000

Subject land: 201 South Road, Ridleyton

Certificate of Title: Volume 5352 Folio 431

Existing Use: Retail liquor outlet

Proposed development: Retention and upgrading of existing retail

liquor outlet and construction of a

separate office tenancy

Relevant Authority: City of Charles Sturt

Relevant Development Plan: Hindmarsh and Woodville (City)

9 March 2000

Relevant Zone: Local Commercial A Zone

Date of decision: 19 July 2000

Appeal lodged: 8 August 2000

2 When this matter came on for hearing the appellant was represented by her daughter, Ms J Marjanovic, the Council by Mr K Tredrea, of counsel, and the second respondent by Mr G Manos, of counsel. Sworn evidence was given Ms J Marjanovic, Mr G Pantelos, a qualified and experienced town planner in the employ of the respondent Council, Mr Richard Dwyer, a qualified and experienced town planning consultant, and Mr D Bernardi, a principal of the Le Grog Chain of bottle shops, which owns the existing retail liquor outlet on the subject land. 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 an irregularly-shaped allotment, approximately 1700m² in area, located at 201 South Road, Ridleyton, on the south-eastern corner of the junction of South Road and Hawker Street. It has a frontage to South Road of 38.85m, a frontage to Hawker Street of 33.5m, and a corner cut-off 10.16m. It is located within the Local Commercial A Zone depicted on Map HiWo/21 in the Development Plan for the City of Hindmarsh and Woodville dated 9 March 2000.

4 On the land is presently located a retail liquor outlet (shop) 245m² in area. On 6 December 1999 the Council approved the addition of a store, 90m² in area, to the existing building, which store has not yet been constructed but is shown on the drawings for the subject proposal.

5 The existing building was, at some time in the past, used as a petrol filling station and is a rendered masonry structure incorporating a large canopy attached to its western fascia and extending towards the South Road frontage of the subject land.

6 The land is relatively flat and contains no vegetation of any significance, there being a small amount of landscaping adjacent the intersection and along the southern boundary of the site. The remainder of the site is utilised for carparking and is sealed with bitumen, other than the south-eastern corner of the site, which has a gravel surface. The carpark is not linemarked but appears to have the capacity, at present, for the parking of some 20 vehicles. Access to the site is obtained by way of two existing two-way crossovers from both South Road and Hawker Street.

7 Fencing to the southern and eastern boundaries comprises painted corrugated iron and "Trim Deck" sheeting of varying heights. That on the southern boundary appears to be approximately 1500-1600mm in height.

The Locality

8 Both Mr Pantelos and Mr Dwyer defined localities for the purpose of their respective evidence, which localities largely coincided, extending some 250m along South Road, south of the junction of South Road and Hawker Street, about 100m south-east along Hawker Street, and between 150m and 250m along South Road, north of the junction of South Road and Hawker Street.

9 The locality is dominated by South Road, a primary arterial road carrying large volumes of traffic, including heavy vehicles, with resultant noise and traffic impacts. Fronting both sides of South Road to the north of the site is a mixture of commercial development including consulting rooms, shops, a motor repair station, a large distribution centre and a number of vacant premises which appear to have previously been used as shops. To the immediate east of the site, and across South Road to the south-west, are detached dwellings, mostly single-storey. To the immediate south of the site are two-storey residential flat buildings, with a local shopping centre (Croydon Foodland) located slightly further to the south. That part of Hawker Street falling within the locality contains predominantly single-storey detached dwellings.

The Proposal

10 The proposal entails the retention and upgrading of the existing bottle shop, incorporating a previously approved store which has not yet been constructed, and the construction of a separate office tenancy some 170m² in area, the use of which, on the evidence of Mr Bernardi, would be for the administration of the entire Le Grog chain of liquor outlets. Improvements to the existing building and associated carparking area include:

* removal of the existing large canopy to the front of the retail liquor outlet; * substantial renovations to the existing facade; * incorporation of a new canopy to the front of the existing building; * formalisation and rearrangement of existing carparking areas on the site, including the provision of one designated space for disabled carparking; * retention and use of existing crossovers from both Hawker Street and South Road; and * incorporation of landscaping to the front of the building and in association with the upgraded carparking area.

The proposed office building extension would extend to the southern and eastern boundaries of the site, and would be of masonry construction. Its dimensions would be 13m (eastern boundary) by 18.2m (southern boundary) by 4.2m in height.

Assessment

11 It was common ground between the parties that the sole issue in these proceedings was the acceptability or otherwise of the impact of the proposed extension on a two-storey residential flat building to the immediate south of the subject land, which building is owned and occupied by the appellant, Mrs N Marjanovic. The evidence of Mrs Marjanovic's daughter, Ms J Marjanovic, who both represented her mother in these proceedings and gave sworn evidence, was that the proposal, by locating a 4.2m high wall on the common boundary between the subject land and her mother's property, would have the following effects:

* it would overshadow, for the greater part of the day, the only area of garden within her mother's property; * it would be visually intrusive; and * it would reduce the amenity of her mother's property by creating a narrow tunnel, 2.5m wide, between the southern wall of the proposed office and the northern wall of her mother's dwelling.

12 Ms Marjanovic placed some store by the fact that her mother's dwelling was located within a residential zone, the southern boundary of the subject land constituting the boundary between the Local Commercial A Zone and the Residential 2B Zone. In her submission, the location of the wall of the proposed office on the southern boundary of the subject land failed to acknowledge the residential nature of the adjoining use. A more appropriate response, Ms Marjanovic suggested, would be to set back the wall at least 2.5m from the boundary (to match the setback of her mother's dwelling) and to reduce its height.

13 In the absence of such changes, said Ms Marjanovic, the proposal was in conflict with a number of relevant provisions of the Development Plan, in particular Metropolitan Adelaide Objective 30 and Hindmarsh and Woodville Principles 3(c), 45(b)(i), (vii) and (viii), 67 and 77.

Those Principles are in the following terms: Metropolitan Adelaide "Objective 30: The amenity of localities nor impaired by the appearance of land, buildings and objects." Hindmarsh and Woodville (City) "Principle 45: Development should: ...... (b) not cause nuisance or hazard arising from: (i) micro-climatic conditions; ...... (vii) overshadowing; or ...... (viii) visual intrusion." "Principle 67: Commercial development should be of a high architectural standard and be set-back from the road frontage to allow for landscaping." "Principle 77: The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."

14 The evidence of Mr Bernardi was that the siting of the office walls on the southern and eastern boundaries, and the height of the walls themselves, were both designed to minimise the risk of break-ins to the bottleshop premises. Experience with both the bottleshop on the subject land and others owned by his company indicated that most break-ins occurred through the roof, and that a height of 4.2m was the minimum necessary to prevent the roof being accessed by one person standing on another's shoulders. Similarly, dark, hidden spaces of the kind which would be created by a setback from the southern boundary afforded opportunities for more systematic attempts to break in, while hiding the perpetrators from public view.

15 The subject land is located in a Local Commercial A Zone. The sole objective for that zone is as follows:

Local Commercial A Zone

"Objective 1: A zone primarily accommodating local service activities which are compatible with the amenity of the locality."

16 Principle 1 for the zone is in similar terms, while Principle 2 designates a number of kinds of development as complying, subject to meeting conditions prescribed by Table HiWo/1, where applicable. Complying forms of development in the zone include hotel, motel, non-residential club, service industry, store, timber yard and warehouse.

17 The proposed development is neither complying nor non-complying development within the zone, and therefore has to be assessed on it merits against all the relevant provisions of the Development Plan. Those provisions, in the opinion of both the expert planning witnesses, include Metropolitan Adelaide Objectives 1, 2, 15, 16 and 30, Hindmarsh and Woodville (City) Objective 1 and Principles 1, 2, 3, 63, 64, 66, 67 and 77, and Zone Objective 1 and Principles 1, 2 and 3.

18 The evidence of Mr Pantelos was that the use of the subject land was consistent with the zone objective, being a use which provided a local service compatible with the amenity of the locality and conveniently located to serve local needs. The proposed office component was of a scale consistent with a local commercial use.

19 Consistent with Metropolitan Adelaide Objectives 1, 2 and 16 and Council-wide Objective 1 and Principles 1, 2, 3, 66 and 67, the proposal would result in a considerable improvement in the appearance and functioning of the site, while not resulting in the impacts on adjoining residential development which reasonably could be expected from a number of the complying uses in the zone, such as a warehouse, timber yard and builders yard.

20 Similarly, consistent with Council-wide Principles 63 and 64, the proposal would provide adequate on-site parking and would not result in any noticeable increase in traffic.

21 Mr Pantelos acknowledged the fact that the proposal would result in overshadowing of the side garden area of the adjoining dwelling to the south, but was of the view that this was acceptable for at least two reasons:

(a) there were no windows in the northern elevation of the adjoining dwelling; and (b) the Development Plan did not impose setback or height restrictions on a number of complying forms of development within the zone, as a consequence of which a much higher wall could be constructed in the same location without any planning consent being required.

22 The proposed single-storey wall on the boundary would, in Mr Pantelos' view, improve the privacy and security of the adjoining residential property and protect the occupant of that property from the risk of waste collecting in the area between the existing building on the subject land and the southern property boundary of that land, with resultant attraction of vermin and creation of offensive odours.

23 Similar views were expressed by Mr Dwyer, who also observed that the courtyard and service area between the southern boundary and the adjoining dwelling was relatively small, bounded by a two-storey featureless wall of the dwelling, was not accessible from internal living areas, and was already overshadowed, to a significant degree, by the fence along the common boundary, the latter presently resulting in almost total overshadowing of the area between the dwelling and the southern boundary of the subject land at 10.00am on the winter solstice.

24 Both planners were of the view that, in all the circumstances, the impact occasioned by the proposed wall was not unreasonable and that the proposal as a whole was generally consistent with the relevant provisions of the Development Plan, and would significantly improve the outward appearance and functional operation of the existing business on the subject land, to the benefit of the locality generally.

25 In considering the acceptability or otherwise of the impact of the proposed wall on the appellant, it has to be remembered that the amenity of the locality within which the appellant's dwelling is located has to be assessed on the basis of the range of activities either existing or permissible within it: Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85. The appellant resides on the boundary between a commercial zone and a residential zone, and while her dwelling is within the latter, that fact cannot afford her the level of amenity enjoyed by occupants of dwellings in the centre of a residential zone. There is no escaping the possibility of development occurring on the subject land which, while not requiring planning consent, could result in a built form unconstrained by height or setback controls, and uses far less compatible with nearby residential development than the present and proposed use of the subject land. As the former Planning Appeal Tribunal observed in its decision in McDonald's Australia Ltd v City of Payneham and Others PAT No. 151 of 1992, at 75:

"..... when dealing with forms of development which are neither 'permitted' nor 'prohibited' in a zone, ...... it is not improper, when considering whether such a development should be authorised, to judge it, to some extent, having regard to the nature and attributes of development which would be 'permitted'."

26 It is also relevant to note that, even in the Residential 2B Zone, within which zone the appellant's dwelling is located, there is a 1.5m side setback requirement but no height limit for either detached or semi-detached dwellings, both of which are complying forms of development within that zone.

27 Taken together, the above considerations suggested that the possibility of substantial structures being located on or close to side boundaries has not been of sufficient concern to the Council, as the relevant planning authority, to warrant any measures being incorporated into the Development Plan provisions for either the Local Commercial A Zone or the Residential 2B Zone such as would discourage or prevent this occurring.

28 There is no doubt, on the basis of shadow diagrams prepared by Messrs. Dwyer and Pantelos, that approval of the subject proposal would result in substantial additional overshadowing of the 2.5m wide area between the appellant's dwelling and the southern boundary of the subject land. In circumstances wherein it was possible to distil, from the relevant provisions of the Development Plan, an intent to prevent, or at the very least, discourage development extending to side boundaries and resultant overshadowing, refusal of the proposal in its present form might perhaps be justified. However, there is no evidence of any such intent in the Local Commercial A Zone, the Development Plan imposing no height or side boundary setback requirements for complying forms of development. Even in the Residential 2B Zone, a 1.5m setback requirement with no height restrictions for complying residential development creates the potential for substantial overshadowing.

29 The subject proposal constitutes a significant upgrading of a site which is, at present, unattractive and poorly maintained. If implemented, it will contribute in a positive way to the locality in which it is situated. In terms of maintenance and security, the southern wall of the proposed office would, on the evidence, be better sited on the southern boundary of the subject land then set back a few metres from it. The adverse consequences for the appellant will be felt primarily in terms of a significant loss of sunlight, principally during the warmer part of the year, to an area used as a garden. There will be no loss of light to the interior of her dwelling. Those provisions of the Development Plan to which Ms Marjanovic made reference, in particular Metropolitan Adelaide Objective 30, and Hindmarsh and Woodville (City) Principles 3(c), 45(b) and 77, all of which deal variously with questions of amenity, must in my view, be considered, not against some absolute, Metropolitan-wide amenity standard, but within the context established by both the existing character of the relevant locality and the forms of development anticipated for that locality by the relevant provisions of the Development Plan. Applying the relevant Development Plan provisions within that context, I have concluded that the proposed development is generally consistent with those provisions, and warrants provisional development plan consent.

30 By memorandum circulated to the parties and dated 4 December 2000, I advised them of this conclusion, and the reasons for it. I invited them to discuss the form of the southern boundary wall and any conditions which should attach to a consent for the proposal as a whole.

31 The parties came before me on 11 January 2001 and advised that they had agreed both the design and materials for the southern boundary wall and the conditions which should attach to provisional development plan consent. Mr Manos tendered amended plans relating to the above agreement. (Exhibit E).

32 The decision of the Court is that:

A. This appeal is dismissed.

B. The provisional development plan consent, issued by the City of Charles Sturt on 26 July 2000 for the subject proposal development, being the upgrading of an existing retail liquor outlet and construction of a separate office tenancy (Development No. 252/00680/00) is hereby varied by:

(a) the substitution of an amended plan, dated 8 January 2001 and marked Exhibit E, for the plan referred to in that consent;

(b) the substitution of the following conditions for the conditions attaching to that consent:

1. The proposal shall be developed in accordance with the amended Plan dated 8/1/01 and marked Exhibit E except where varied by the conditions herein and shall be completed to the reasonable satisfaction of Council prior to occupation of the building.

2. All parking areas shall be marked in a distinctive fashion, to delineate the parking spaces, prior to the occupation of the proposed development. All carparking bays shall have a minimum width of 2.5 metres, a minimum depth of 5.5 metres and aisles have a minimum width of 6.0 metres.

3. The disabled carparking shall be provided in accordance with the Building Code of Australia to the satisfaction of Council prior to occupation of the building.

4. All trade waste and other rubbish shall be contained and stored pending removal in covered containers which shall be kept and screened from public view in a Council- approved location on the subject property.

5. The landscaping detailed on the approved plan shall be established prior to the occupation of the development and shall be maintained in good heart and condition at all times.

6. All landscaped areas shall be watered by an automatic watering system that shall be installed prior to the occupation of the proposed development.

7. All mechanical equipment/services associated with the building/activity shall be designed, installed and operated in accordance with the noise requirements of the Environment Protection Act.

8. The new tenancy hereby approved shall be used for office use only, and shall not be used for a shop, either as a whole, or in conjunction with the office, without the prior consent of Council.

9. The existing fence on the southern boundary of the subject land shall remain in place until such time as the construction program for the development hereby approved necessitates its removal, and temporary fencing shall be erected thereafter, of a kind which will maintain the security of the adjoining residential property to the south, until such time as its removal is required for the construction of the wall on that boundary.

C. A copy of Exhibit E shall remain on the Court file.