Mauger v City of Burnside No ERD-00-992 [2001] SAERDC 2 (4 January 2001)

Last Updated: 15 January 2001

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hodgson

Hearing

04/12/2000 to 04/12/2000.

Catchwords

Development Act 1993 - application to install panel door to existing pergola - refused by Council - appeal - planning merits considered - cumulative side setback requirement not met but proposed development not inconsistent with established character of locality - provisional development plan consent granted.

Materials Considered

• Development Act 1993 , referred to.

Representation

Appellant: RJ & ED MAUGER
Advocates: ELIZABETH MAUGER

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

ERD-00-992

Judgment No. [2001] SAERDC 2

4 January 2001

R J & E D MAUGER

v

CITY OF BURNSIDE

(ERDC No. 992 of 2000)

[2001] SAERDC 2

THE COURT DELIVERED THE FOLLOWING DECISION:

1 This is an appeal against a decision of the City of Burnside ("the Council") to refuse provisional development plan consent to an application under the Development Act 1993 by the appellants. Some relevant details are set out hereunder:

Date of application: 3 July 2000

Subject land: 9 Myola Avenue, Glenunga

Existing Use: Detached dwelling

Proposed development: Installation of panel door to existing pergola

Relevant Authority: City of Burnside

Relevant Development Plan: Burnside (City) 29 June 2000

Relevant Zone: Residential R550 Zone

Date of decision: 15 August 2000

Appeal lodged: 27 September 2000

2 When this matter came on for hearing, Mrs E Mauger represented the appellants, while the Council was represented by Mr K Tredrea, of counsel. Sworn evidence was given by Mr R Mauger, Ms S Howland and Mr P Vivian, Ms Howland and Mr Vivian both being qualified planners in the employ of the respondent Council.

3 The Court conducted a view of the subject land and its locality, and received a number of exhibits.

The Subject Land

4 The subject land is an allotment some 380m² in area, located on the western side of Myola Avenue, Glenunga. It has a street frontage of 17.0m and a depth of 22.4m. On the land is located a two-storey detached dwelling, sited parallel to the front boundary and set down slightly relative to street level. A projecting porch and balcony is set back some 4.0m from the front boundary, while the principal facade is set back about 5.5m from that boundary. The dwelling is set back 0.72m from the southern boundary and, without the proposed panel door, would be set back approximately 2.9m from the northern boundary. Installation of the panel door would reduce this setback to zero.

5 The style of the dwelling could perhaps be described as "Neo-Tuscan", incorporating strong vertical elements and a recessed upper level designed to reduce the apparent building mass. External finishes are a cream render with grey colorbond roofing.

6 When the dwelling was approved by the Council (development approval was issued on 18 June 1999) it featured a single garage with panel door on the northern end of the dwelling, with a pergola extending from the northern side of the garage to the northern boundary of the subject land. The pergola was to be supported by six masonry piers. One of the conditions attaching to the provisional development plan consent, issued by the Council on 15 April 1999, was in the following terms:

"4. The pergola herein approved is to remain an open structure (without walls) at all times and in particular must not have doors of any description attached to the front elevation without the prior written consent of the Council."

7 At some time following completion of the dwelling, the panel door the subject of these proceedings was installed. Like the garage door it adjoins, it has been colour matched to the wall colour of the dwelling.

8 Existing landscaping comprises a small area of lawn, six birch trees planted within or adjacent the lawned area, and a small garden bed adjacent the northern boundary.

The Locality

9 Myola Avenue is a relatively narrow residential street extending between Bevington Road to the north and Glenunga Avenue to the south. Both Ms Howland and Mr Vivian were of the opinion that the relevant locality, for the purpose of assessing the subject proposal, was that portion of Myola Avenue between O'Dea Drive, three allotments to the north of the subject land, and Glenunga Avenue, some 30-40m south of the subject land.

10 The locality is entirely residential, consisting of single and two-storey dwellings exhibiting a variety of styles and ages.

11 Front setbacks vary significantly, ranging from 5.5m (the subject site) to approximately 17m at 5 Myola Avenue. The majority of front setbacks appear to be in the range, 7m - 10m. Front gardens are extensively landscaped.

12 Side setbacks in the locality also vary substantially, ranging from 5.0m to nil. At least three dwellings in the locality extend to one side boundary.

13 A combination of mature landscaping, well-established street trees and well-maintained dwellings all contribute to a high level of residential amenity.

The Proposal

14 Erection of a panel door and headframe to the pergola on the northern side of the dwelling being, on its face, in breach of condition 4 attaching to the provisional development consent issued by the Council for the dwelling on the subject land, the Council sought from the appellants an application for approval of the panel door, and subsequently refused the application, that refusal giving rise to these proceedings. In effect, the proposal the subject of these proceedings is that the already-erected panel door and headframe remain.

Assessment

15 The subject land is located within the Residential R550 Zone as depicted on Map Bur/7 in the Development Plan for the City of Burnside dated 29 June 2000. In its reasons for refusal of the subject application, the Council cited Principles 6 and 7 for that zone, which principles are as follows:

Residential R550 Zone

"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 the locality in which the land is situated and provide landscaping opportunities consistent with that character and amenity;

......"

"7. (i) the sum of the set-backs from the side boundaries to any part of the external walls of a building with a floor level less than 1.5 metres above natural ground, should not be less than two metres."

16 Other Development Plan provisions cited by the Council in support of its refusal were:

Metropolitan Adelaide

"Principle 9. Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."

Burnside (City)

"Principle 23. The space between buildings in residential areas as viewed from the street, should be compatible with the predominant character of the streetscape to which the building relates."

17 The evidence of Ms Howland and Mr Vivian was that the subject proposal was in conflict with the above provisions of the Development Plan in the following principal respects:

(a) the development would result in a cumulative side setback of 0.72m, substantially below the 2.0m sought by Zone Principle 7;

(b) the resultant space around the building would not maintain the predominant character of the locality;

(c) the second panel door would increase the visual bulk and apparent scale of the dwelling as viewed from the street;

(d) the intent of Condition 4 of the provisional development plan consent for the dwelling was to maintain an area of open space between the dwelling and the northern boundary of the subject land;

(e) the substantial variance in driveway and crossover width necessitated by the use of the pergola area for carparking would remove the opportunity for substantial landscaping between the pergola and the street boundary of the subject land, producing a proportion of hard surface paving which differed from the predominant 'garden' character of existing frontyard development within the locality.

18 The evidence of Mr Mauger was that the panel door was necessary for several reasons:

(a) to provide security for the rear area of his dwelling. His vehicle had been broken into three times, the hot water service for the house stolen, and an intruder disturbed trying to break into the house via doors to the rear courtyard area; and

(b) to provide privacy for the family's only useable area of outdoor open space, this being located between the rear of the pergola and the rear boundary of the subject land, on the northern side of the dwelling.

19 Mr Mauger expressed the view that the second panel door produced a more pleasing appearance, viewed from the street, than would the rear of a parked motor vehicle. Furthermore, as there was no roof structure over the pergola, the building "stepped down" to the northern boundary of the subject land, thereby minimising the visual bulk of the enclosed pergola area.

20 To a large degree, the issues arising in this matter stem from the original decision of the Council regarding the appellants' dwelling. That dwelling is sited close to the southern and western (rear) boundaries of the subject land, such that the only useable area of outdoor open space is located to the rear of the garage and pergola, between the dwelling and the northern boundary of the subject land. The condition imposed by the Council on the original dwelling approval, that the pergola must not have walls (or a roof) was, on the evidence of Ms Howland and Mr Vivian, intended to maintain open space between the appellant's dwelling and that to its immediate north. However, even were that condition complied with, some form of enclosure of the outdoor open space referred to above would be necessary, as views directly into that area are available from the street. Security considerations would also dictate some means of enclosure being employed.

21 In order not to breach the said condition, it would probably be necessary to erect a solid fence some distance to the rear of the pergola, which, assuming it was between 1800mm and 2.0m in height, would produce a result, in streetscape terms, no more satisfactory than enclosure of the pergola with a panel door, and perhaps less so, given that the only likely use of the pergola area would be the parking of a vehicle, which would be visible from the street. The continuous frontage of the dwelling would, admittedly, be reduced insofar as the fence would be set back further than the front wall of the dwelling, but the effect, in terms of space between the dwelling on the subject land and that to its north, would bear little resemblance to what was originally envisaged by the Council, namely, a substantial open area between the dwelling and the northern boundary of the subject land.

22 Mr Vivian, in evidence, pointed out that the approved plan for the dwelling showed only a single driveway and crossover, this resulting in an assumption, on the Council's part, that an area north of that driveway, with dimensions approximately 5.5m x 3.0m, would be available for landscaping.

23 Given the size of the dwelling and the positioning of the pergola, it was perhaps somewhat ingenuous, on the Council's part, to assume that a second car would not be parked in the area occupied by the pergola. Be that as it may, there was no condition imposed on the original provisional development plan consent which sought to prevent the driveway being designed to provide access to the pergola area as well as to the garage, Condition 7 simply requiring "detailed driveway design to be provided with the application for Building Rules Consent and approved prior to issue of Development Approval." No evidence was put to the Court to suggest that the driveway as constructed had not been approved.

24 It became evident, in the course of the view, that the cumulative side setback of 2.0m sought for dwellings in the Residential R550 Zone had not been uniformly applied to new development within the locality, there being a number of examples of cumulative setbacks totalling 1.0m, with substantial roof elements extending almost boundary to boundary.

25 In the case of the subject proposal the final result, while not meeting the cumulative setback stipulated for the zone, is not, in my view, so out of keeping with the appearance and side setback of other recently-constructed dwellings in the locality as to warrant refusal. In reaching that conclusion, I have taken into consideration the fact that the roof form of the dwelling does not extend to the northern boundary of the subject land. I have also taken into consideration the siting of the dwelling on that land, and, in particular, the location of its useable outdoor open space, and the resultant likelihood, in the event that this application was refused, that a solid fence would be erected some distance behind the pergola area, for both privacy and security reasons, and that a vehicle would continue to be parked in the area of the pergola. No consent would be required for either, provided the fence was not more than 2.0m in height, but the result would, in my opinion, be less satisfactory than what is presently proposed.

26 In the final analysis, and having regard to the established character of the locality (which character has been changed, to some degree, by recent development), I have concluded that, while the proposal does not meet the quantitative cumulative setback requirement of Zone Principle 7 it does meet the qualitative requirements of Zone Principle 6, Council-wide Principle 23, Metropolitan Adelaide Principle 9, and other, more general provisions seeking to ensure that development is compatible with its setting, such as Metropolitan Adelaide Objectives 9 and 42, and Council-wide Principle 121.

27 Having so concluded, I have decided that the decision of the Council should be reversed, and provisional development plan consent granted for the subject proposed development.

28 There will be an order accordingly.