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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 9 April 2001
Decision of Commissioner Hutchings
Respondent: CITY OF NORWOOD PAYNEHAM & ST PETERS
Counsel: MR KYM TREDREA - Solicitors: NORMAN WATERHOUSE
ERD-00-1096
Judgment No. [2001] SAERDC 18
20 February 2001
THE COURT DELIVERED THE FOLLOWING DECISION
1 This matter concerns the re-alignment of the boundary between two residential allotments, viz 77 and 79 Sixth Avenue, St Peters. Mr John P R Ellis of No 77 sought consent for the realignment from the City of Norwood Payneham and St Peters on 11 August, 2000 but was refused on 4 October, 2000. He appealed, the matter went to the required conference but no compromise was reached so it came before this inquiry at which time he was represented by Mr Stuart Henry of counsel. Mr Kym Tredrea, also of counsel, represented the City. Evidence was given by Mr Ellis, Mr Christopher Marles, (under subpoena) a public servant with extensive experience in the provision of sewerage services, Messrs Robert McBryde and Alan Rumsby, both MRAPI.
2 The proposed re-alignment is shown on Figure 1; ie, a significant increase in the size of the land parcel (lot 571) which currently encompasses the house at No 77 and a significant decrease in that (lot 570) encompassing the house at No 79. The new lot 2 will have a subterranean part - marked A. Above this will be an easement for drainage appurtenant to lot 1. This ingenious arrangement is to ensure that the existing sewer from the house on proposed lot 1 lies within a part of lot 1 which abuts a public road; ie, Sixth Lane. This has been done to meet the requirements of SA Water. The easement above it is to enable owners and/or occupiers of the dwelling on lot 1 to gain access to the sewer. Hence it would seem, both private and public needs would be satisfied. Figure 2 illustrates the arrangement (p 12, copy documents Exhibit R1).
3 The new boundary reflects the existing arrangements of improvements, landscaping and activity areas in numbers 77 and 79. Mr Ellis owns both parcels. His family home is that on number 77. A large late 19th or early 20th Century villa, it is shown as a "local heritage item" on Map StP/17 of the St Peters (CT) Development Plan. It sits behind a masonry and palisaded fence and a treed front yard. Between the north-east wall of the house and the fence which separates the yards of 77 and 79 are a number of trees. As shown on Exhibit A5, these lie in the yard of number 77.
4 To the rear of Mr Ellis' home is a lawned area which extends north-east into lot 570. This area is flanked on its south-east by a large shed which houses his collection of motor vehicles. On its north-west is the fence separating this lawned area from the rear yard of the house on number 79. There are a number of trees adjoining this fence and the lawned area.
5 The house on number 79 is presently vacant and in need of maintenance. It is of solid stone construction with "flat" roofs at angles to each other in a style briefly popular in the 1940s and 50s. This dwelling has been frequently rented out by Mr Ellis in the past. The front fence is of wire and of a style used occasionally in the 19th Century.
6 From Mr Ellis' point of view therefore, the proposed boundary re-alignment merely regularizes the manner in which his properties have been used for a number of years. The existing fence which now marks the practical boundary between the two households would also become the legal boundary and the subterranean part of lot 2 and the easement above it is acceptable in terms of the cadastre.
7 That said there are planning questions about both the subject land and its wider context. On the face of it, the arrangements for the sewer seem overly complex. The easement could constrain the owner of proposed lot 2 from undertaking building work, could cause difficulties in access to it from the shed and could bring about unusual boundary disputes if holes, poles, tree roots and the like went down into the earth far enough to trespass. Mr McBryde also expressed some concern that these arrangements could cause disputes between neighbours with regard to access to the sewer as well as with regard to trespass. I have some sympathy for this view. The arrangements are not easy to understand. Indeed the experts, counsel and the Court itself spent some time on this issue. Notwithstanding, Mr Henry submitted it was not really a planning issue - being one solely of relationships between neighbours. However I cannot agree. At perhaps its sharpest most detailed end, planning is often concerned with such matters; it is where the policy chickens come home to roost, as it were. An important aim of site planning must be to ensure that conflicts both within and on the boundaries of a site are minimized and, as far as possible, eliminated.
8 I think though that any constraints on the use of proposed lot 2 or the potential for disputes between neighbours as a result of these arrangements would not be so severe as to conclude the proposal should be refused. If the easement etc were not "tucked away" in the eastern corner of proposed lot 2, my conclusion might well be different.
9 I turn now to the wider context. The "Living" area of the St Peters Council area is broken down into a number of zones; Residential Zones 1, 2, 2A and 3N and, in the suburbs north-east of the Hackney Road/North Terrace intersection and north-east of the Balliol Street/Payneham Road intersection:
. Historic (Conservation) Zone - Hackney Residential 200
. Historic (Conservation) Zone - Avenues Residential 300
. Historic (Conservation) Zone - East Adelaide 600
. Historic (Conservation) Zone - College Park Residential 900
The warrant for these latter four zones seems to be Council Wide Objective 16; viz, "Conservation of areas primarily of historical (sic) significance in residential use". The numbers in the zone titles relate to a desired minimum site area per dwelling. For example, Principle of Development Control 11 for the Historic (Conservation) Zone - East Adelaide 600 within which the subject land lies, states that "the site area per dwelling should be not less than 600 square metres". From an examination of the maps for these zones, this desiderata appears to be based, in turn, on the general arrangement of existing lot sizes within each zone.
10 The objectives of the Historic (Conservation) Zone - East Adelaide are:
"Objective 1: Conservation of dwellings and other buildings having a form and style which contribute significantly to the historic character of the area of the zone.
Objective 2: Development which enhances the character of the zone established by:
(a) the predominance of substantial, single-storeyed detached dwellings on large allotments with frontage primarily to wide roads;
(b) substantial, established gardens;
(c) fencing to streets in a style compatible with dwellings built in the 1870's and 1880's;
(d) consistent set-back of dwellings from the roads to which they have primary frontage; and
(e) roads lined with mature exotic street trees where they might practically be grown."
Principle of Development Control 3 states:
"3 The details and general character of development should be consistent with and enhance the historic character of the area of the zone in which it is located."
11 In these provisions, emphasis is placed upon "historic character". Within urban areas, "character" - whether historic or not - is formed by a number of components - not the least being the plat or pattern of streets and allotments. Indeed, the original act of subdivision is, more often than not, the most enduring action in the sequence of the planning, design, development and redevelopment of urban areas from greenfields to fully built-up towns and cities. Buildings, streetscapes, traffic ways, open spaces, parks and the like come and go but the underlying cadastre changes infrequently and then more in its detail than its overall pattern. That is not to say though it should not change unless spoken against by the provisions in development plans.
12 As underlined by the provisions for the zones, site area per dwelling (which can be reasonably read as lot size) is considered an important two dimensional element in the historic suburbs of the St Peters Council area. An examination of the zoning maps points up three other significant elements; firstly, a similarity in lot width, secondly, a uniformity in lot depth and thirdly a pattern of streets and back lanes with lots running from one to another - hence the uniformity of lot depth. These elements are the basis of lot size. Such are the general arrangements. However are there localities within these zones and the East Adelaide 600 Zone in particular, where these arrangements no longer prevail and where, accordingly, the Plan's provisions must be read against the existing and future development realities of a locality? (Courtney Hill Pty Ltd and South Australian Planning Commission and Others 59 SASR 259.)
13 Both planning witnesses gave this matter careful consideration, particularly with regard to lot sizes but neither could say that, either within their localities or for some distance beyond, was the two dimensional pattern at odds with the general arrangements referred to above. Mr Rumsby drew attention to the smaller and narrower lots (but still of standard depth) in a clearly different locality around Sixth Avenue across Stephen Terrace (a secondary arterial road) to the south west and his Exhibit A2 noted certain "strataed" site areas both across Sixth Avenue and Sixth Lane from the subject land which were considerably smaller than 600 square metres (but which, nevertheless, retained common access to rear lanes). But he did not think these were at such odds to the general arrangements that the locality's character was, as a consequence, different to that prevailing in the zone.
14 In these terms, the re-alignment proposed in this matter is clearly at odds. It will create an allotment smaller than 600 square metres which has no rear lane access and the boundary proportions of which are markedly different from those prevailing in the locality and beyond. It will also create an L-shaped allotment which, while going from the street to the lane, will have a unique shape.
15 But does this matter? The two dimensional elements must be put together with three dimensional elements to read the character as a whole. The size, shape and dual frontages of the lots in the zone have tended to lead to a particular placement of dwellings with a consequent arrangement of open spaces, gardens, set backs and access points which the provisions for the zone, taken as a whole, seek to maintain. In other words both types of elements interlock so the answer must be yes. It could be said that there will be no change to the streetscape but streetscape is only ever one part of an area's character.
16 From the personal point of view of Mr Ellis and as a basic site-planning exercise, the proposed re-alignment is sensible. Mr Ellis purchased No 77 in 1970 and No 79 about 14 years ago. Subsequently, he cleaned up the back yard of No 79, erected the shed in which his collection of cars are stored, created the lawned areas and "moved the fence from its position on the boundary" between No. 77 and 79 "to surround the house on No. 79." The proposed re-alignment will regularize this situation.
17 If the subject land was in a "run of the mill" residential zone such as 1, 2 or 2A, the proposal would be unexceptional, even routine, but in this instance careful regard must be given to the scheme that the authors of the Plan have crafted. General Council Wide Objective 1 speaks of social and cultural needs and applying the broad meaning of culture, it can be said that the suburbs which fall within the Historic (Conservation) Zones are an important part of St Peters' culture and character. The provisions seeking to conserve the historic character of these suburbs cannot be lightly dismissed. The proposal is at odds with them and while Mr Ellis' intentions are plain it cannot be assumed that any subsequent owners will maintain the status quo. On the one hand, the proposal would cut off opportunities to re-arrange and/or redevelop lot 570 (including No 79) in line with the Plan's provisions. On the other, it would create opportunities for development on the proposed lot 2 (No 77) that could be further at odds with these provisions.
18 I have carefully considered the relevant provisions of the Development Plan, the nature of the locality and the intentions of the applicant but on weighing these together, I must conclude the balance falls against the proposal. Accordingly, it is the decision of the Court that Development No. 155/D035/00 is refused and the decision of the Council confirmed.
19 With regard to ERDC No 894 of 2000, I direct that this matter be listed at Callover on Friday 9 March, 2001 at 9.15am.
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URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/2001/18.html