Whitehead v City of Port Adelaide Enfield No ERD-02-247 [2002] SAERDC 109 (26 November 2002)

Last Updated: 4 December 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

02/09/2002, 14/11/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to extend existing dwelling by erection of a new kitchen, rumpus room and garage - Residential Zone - refused by Council - appeal - planning merits considered - scale and mass - relationship with existing dwelling and other buildings in locality - effect on streetscape - relevance of permissible scale of complying development within zone - proposal in sufficient conformity with Development Plan to warrant Provisional Development Plan consent - appeal upheld and Provisional Development Plan consent granted, subject to conditions.

• Development Act 1993, referred to.
• McDonalds Australia Ltd v City of Payneham and Ors PAT NO. 151 of 1992, considered.

Representation

Appellant: JEFFREY BRUCE WHITEHEAD
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF PORT ADELAIDE ENFIELD
Counsel: MS A NICHOLLS - Solicitors: NORMAN WATERHOUSE

ERD-02-247

Judgment No. [2002] SAERDC 109

26 November 2002

JEFFREY BRUCE WHITEHEAD

v

CITY OF PORT ADELAIDE ENFIELD

(ERDC No. 247 of 2002)

[2002] SAERDC 109

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal arising out of a decision of the City of Port Adelaide Enfield ("the Council") to refuse an application by Jeffrey Bruce Whitehead ("the Appellant"), which application initially sought consent to the construction of a domestic garage to the rear of an existing dwelling at 14 Exmouth Road, Glanville, but which, subsequent to refusal by the Council, was amended such that the proposed garage was divided into two areas, one designated as a rumpus room, the other as garage, and the structure connected to the existing dwelling by a new kitchen.

2. The Appellant's application was made on 25 July 2001 and was refused by the Council on 20 February 2002, the stated reasons for refusal being as follows:

"1. The proposed development is at variance to Council Wide Principles 24, 27, 38 and 70 and Residential Zone Principle 8 in that the size, bulk and scale of the garage will have an unreasonable impact on adjoining residential properties and on the amenity of the locality.

2. The proposed development is at variance to Council Wide Principles 61, 83 and 84 with the garage visually dominating the existing dwelling and the locality."

3. The appellant, being aggrieved by the decision of the Council, appealed to this Court against it. A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act, 1993 did not produce a compromise or settlement and accordingly, the matter proceeded to a hearing, at which time the appellant was represented Mr G Manos, of counsel, and the Council by Ms A Nicholls, of counsel. The Court, in the company of the parties, conducted a view of the subject land and its locality, received a number of exhibits, and heard sworn evidence from Ms S Manley, a qualified and experienced town planning consultant, and Ms M Harrison, a qualified and experienced town planner in the employ of the respondent Council.

The Subject Land

4. The subject land is located at 14 Exmouth Road, Glanville and is more particularly described as Certificate of Title Volume 5423 Folio 467, being Allotment 57 in Filed Plan 3144. It is located within the Residential Zone as depicted on Map PAdE/19 in the Development Plan for the City of Port Adelaide Enfield dated 29 March 2001.

5. The land has a frontage of 12.19m to Exmouth Road and a maximum depth of 38.1m. It has a total area of 464.4m2.

6. The land is located on the southern side of Exmouth Road and currently accommodates a small besser brick detached dwelling, a carport attached to that dwelling, a garage situated on the eastern side boundary of the allotment, and a small toolshed in the rear southwestern corner. Presently the site is accessed from Exmouth Road by way of a single crossover on the eastern side of the allotment. The land is relatively flat, falling slightly towards Exmouth Road and towards the rear of the allotment from the slightly raised existing dwelling.

The Locality

7. The localities defined respectively by Ms Manley and Ms Harrison, for the purpose of their evidence, did not differ greatly, both incorporating dwellings on either side of Exmouth Road between Swan Terrace and Young Street and also dwellings on the northern side of Bucknall Road, which road runs parallel to Exmouth Road to its immediate south, as the rear of dwellings on the northern side of Bucknall Road abut the rear of dwellings on the southern side of Exmouth Road. Ms Manley's locality also took in dwellings on the southern side of Clark Street which runs parallel to Exmouth Road on its northern side between Swan Terrace and Young Street, and Ms Manley's locality took in dwellings on the southern side of Bucknall Road. I do not consider the differences between the two localities as having any particular relevance in these proceedings.

8. The locality is predominantly residential in land use and character but there are a small number of commercial sites fronting Exmouth Road and Swan Terrace, these sites including a motor repair station, a hotel, a small shop and a Salvation Army depot. Dwellings are predominantly single-storey detached dwellings, although there are some units and semi-detached dwellings also. Dwellings range in age from mid-19th Century to late 20th Century, with the majority appearing to have been constructed over the last 50 years. Dwelling designs constitute an eclectic mix of styles and materials.

9. Most allotments within the locality are of a similar size, being around 450m2 on average, with dimensions similar to those of the subject land.

10. Setbacks vary considerably, ranging from around 2.0m to 8.0m. In some instances, roller doors and high fences are located on the front boundary and in others, carports extend to that boundary.

11. Within the locality are a number of examples of development extending to side boundaries, including a new two-storey dwelling at 27a Bucknall Road, which dwelling is within the locality defined by Ms Harrison but not that defined by Ms Manley. That dwelling is set back approximately 5.0m from the front boundary, with a carport forward of the dwelling. The dwelling has a flat roof but features a two-storey, predominantly blank wall on the eastern side boundary. The height of that wall is approximately 6.5m.

12. In my observation, the amenity of the locality is at best medium, as a consequence of minimal landscaping, a paucity of street trees, and the diversity of dwelling styles and materials. The overall density of development within the area is relatively low, the dominant form of development being detached dwellings on individual allotments. However, redevelopment of the locality is supported by the Development Plan, with encouragement being given to new dwellings on allotments as small as 250m2.

The Proposal

13. At the commencement of proceedings the proposal, which had been amended from that considered by the Council, included:

• demolition of the carport attached to the eastern side of the dwelling and removal of the existing garage, the dimensions of which were 6.0m x 4.3m;

• construction of a kitchen addition, with dimensions 4.8m x 3.3m, to the rear of the existing dwelling, with access being obtained from the existing dining room;

• the construction of a building addition incorporating a garage and games room and a partitioned area with a hand basin and toilet, the overall dimensions of the addition being 12.0m x 8.0m. The latter would be linked to the existing dwelling by the proposed kitchen. The height of the building addition was proposed to be 4.2m on the eastern boundary reducing to 3.6m on its western side; and

• erection of a pergola to the rear of the building addition, the dimensions of which pergola were such that it would not constitute development.

14. The attached building was to be sited on the eastern boundary, 2.0m off the southern boundary and 4.0m off the western boundary.

15. An area of private open space, adjoining and accessible from the games room/garage would have an area of 85.2m2 and a minimum dimension of 2.5m, but with the greater part having a minimum dimension of 4.0m.

16. The resultant site coverage was calculated by Ms Manley as 52.1%, 9.8% of which would be garaging.

17. Materials proposed were sand colour cement brick to match the existing dwelling, super six aluminium roofing, with a 5 degree roof pitch, and aluminium windows and doors. It was proposed that a Colorbond roller door be installed to provide access to the garage.

Assessment

18. As I have said, the subject land is located within the Residential Zone. More particularly, it is located within Policy Area 4 of that zone. The sole objective for the Residential Zone is as follows:

Residential Zone

"Objective 1: The Residential Zone is for residential development and where the creation and maintenance of a safe, pleasant and convenient living environment for all residents is the highest priority. Development within the Residential Zone should comprise a range of housing together with local community facilities that are complementary with the living environment."

19. The objective for Policy Area 4 is more specific:

Policy Area 4

"Objective 1: An area suitable for infill development at low to medium densities to achieve an increase in the number and diversity of dwellings."

20. Relevant Zone Principles are as follows:

"Principle 1: Residential development should comprise a range of housing types and styles to meet the diversity of needs of the population in accordance with the more detailed policies applying in the specific policy areas within the zone."

"Principle 8: The siting, design and appearance of development should be in accordance with the desired character for each policy area."

"Principle 19: Private open space should be provided on the site of a dwelling in accordance with the following:

(a) A minimum total area in accordance with the following:

No of bedrooms (or rooms Minimum area of private

capable of being used as open space per dwelling

bedrooms) (square meters)

_______________________________________________

1 35

2 60

3 or more 80

______________________________________________

(b) a minimum dimension of at least 2.5 metres;

(c) an area capable of containing a rectangle of at least four metres by six metres; and

(d) the area to be exclusive of driveways, car parking areas, outbuildings and landscaping/garden at the front of the dwelling and along the common driveway."

"Principle 20: Development that does not comply with principle of development control numbered 19 should provide sufficient open space to accommodate the recreation and leisure needs appropriate to the intended occupation of the dwelling as well as the service functions of clothes drying and storage of refuse."

"Principle 22: Single-storey dwellings should be set-back:

(a) not less than one metre from side boundaries, unless the dwelling is designed to be constructed to the side boundary, in which case the building should:

(i) not contain any windows, doors or other openings in the wall situated on the boundary;

(ii) not contain a wall greater than 15 metres long on the boundary;

(iii) not contain a wall greater than three metres high on the boundary; and

(iv) have a set-back of at least one metre to the opposite side boundary or rear access to the site; and

(b) not less than four metres from rear boundaries."

"Principle 24: Where set-backs do not comply with principles of development control numbered 22 and 23, or the dwelling is higher than two storeys, the development should ensure adequate protection of:

(a) the maintenance of the amenity in terms of privacy, noise and sunlight for adjoining dwellings;

(b) provision of daylight to habitable rooms with the dwelling; and

(c) minimizing the impact of bulk and scale of the dwelling on adjoining dwellings."

21. Council Wide Development Plan provisions of particular relevance are Objectives 5, 14 and Principles 24, 27, 38, 61 and 70.

22. The evidence of Ms Harrison was that the proposed garage/games room, being as large if not larger than the existing dwelling, and having regard to its height, particularly on the eastern boundary, would create an undesirable streetscape element in terms of its bulk and scale and erode the existing character and amenity of the locality. These features of the proposal would bring it into conflict with Council Wide Objectives 5 and 14 and Principle 38 which provisions are directed towards the maintenance of the existing character and amenity of residential areas. Furthermore, said Ms Harrison, Council Wide Principles 24 and 27 and Zone Principle 8 placed emphasis on the appearance of land, buildings and objects and sought to avoid nuisance or hazard arising, inter alia, from overshadowing and visual intrusion.

23. Ms Harrison conceded that a number of large outbuildings already existed within the locality, some of which were located on common boundaries with other properties. However, she did not consider these to be as visually dominant or intrusive in terms of their size, bulk and scale as would be the proposed development.

24. Furthermore, Ms Harrison was of the opinion that the 3m high roller door would be visually dominant as a consequence of its height and location, and impart to the proposed development a character which was more industrial than residential.

25. Ms Harrison drew my attention to Zone Principle 22, which envisaged that dwellings not contain a wall greater than 3.0m in height on a common property boundary, and be set back not less than 4.0m from rear boundaries. The proposal would feature a 4.2m high wall on the eastern side boundary, which wall would extend for a length of 12.0m and would visually dominate the adjoining property, having no regard to the character and amenity of the locality. Furthermore, the garage/games room elements would be set back only 1.9m from the rear boundary, rather than the 4.0m minimum setback sought. She considered it likely that the building would overshadow private open spaces for the properties to the rear and to the immediate north. The overall size, bulk and scale of the addition would, in her view, have an unreasonable impact on adjoining residential properties.

26. With reference to private open space provision, Ms Harrison acknowledged that the area provided would be sufficient to satisfy Principle 19(a) for the Residential Zone. The dimensions of the area proposed however would not, in her opinion, satisfy Principle 19(c), which seeks an area capable of containing a rectangle of at least 4.0m x 6.0m.

27. Overall, Ms Harrison considered the proposed development to be of a scale, bulk and size which would be out of keeping with the prevailing character of the locality and which would cause unreasonable impact on adjoining properties.

28. Ms Manley, in evidence, acknowledged that the proposed building addition was 60m2 larger than the existing garage and toolshed combined. She noted, however, that 50% of the additional area was to be used for garage purposes and the storing of vehicles while the remaining 50% was to be used for living areas and recreation. In her view, the proposal would not significantly or adversely affect the amenity or pleasantness of the locality, having regard to the conditions which currently existed in the locality and having regard to the existing dwelling and garage. While the proposal was of a non-traditional configuration, it would add to the amenity value of the existing dwelling while also providing the opportunity to store a boat and vehicles and provide a large enclosed entertaining area.

29. Referring to the Development Plan provisions for Policy Area 4, Ms Manly observed that is was reasonable to anticipate an increase in dwelling densities within the locality generally, and therefore an increase in site coverage on many sites. The proposal was, in her view, consistent with these provisions.

30. With reference to Ms Harrison's concerns about the height of the development on its eastern boundary, Ms Manley observed that the proposed building was to be set back some 23.1m from the front boundary of the subject land, which setback would significantly reduce the impact of the height on the boundary as viewed from the street. The existing dwelling was unusually low and "squat" in the streetscape by comparison with other dwellings and outbuildings. The adjoining dwelling to the east was sited approximately 2.0m closer to the front boundary than the dwelling on the subject land and had a wall height estimated to be 4.5m. This dwelling would largely obscure the attached outbuilding from the east. Also with reference to the proposed height of the new structure on the eastern boundary, Ms Manley pointed out that, within Policy Area 4, a two-storey dwelling could be constructed as a complying form of development, provided it was sited not less than 3.0m from side boundaries and 6.0m from a rear boundary. That being the case, said Ms Manley, a development which could occur without consent had the potential to create considerably greater impacts on adjoining properties than would the proposed development.

31. In the course of the hearing, the appellant, through his counsel, advised the Court that he wished to make further amendments to the proposal in order to address some of the concerns expressed by Ms Harrison. The changes entailed substituting a panel lift door for the roller door originally proposed, and a resultant reduction in the height of the boundary wall from 4.2m to 3.8m, and of the western wall from 3.8m to 3.6m.

32. The locality of the proposed development is one exhibiting considerable diversity in the appearance and scale of development. The proposed development is consistent with the provisions of the Development Plan which anticipate an increase in dwelling densities within Policy Area 4, and I note that the combined floor space of the proposed development and the existing dwelling produces a site coverage of some 52%, well below the 60% maximum prescribed by Council Wide Principle 61.

33. The bulk and mass of the proposal has to be assessed in the context of existing developments within the locality. The wall height of the adjoining dwelling to the east, which is set close to the common boundary with the subject land, is approximately 4.5m, and that dwelling is sited some 2.0m closer to Exmouth Road than that on the subject land. The proposed development is set back over 23m from Exmouth Road, significantly diminishing any streetscape impact arising from its height on the eastern boundary.

34. Also relevant to assessment of the scale and mass of the proposed development, particularly when viewed from the property to its east, is the fact that a two-storey dwelling could be sited up to 3.0m from a side boundary in the zone without any planning consent being required, potentially producing an apparent bulk and mass which, in my view, would be at least comparable to that of the proposed development. It has long been accepted by this Court and its predecessor, the Planning Appeal Tribunal, that, in assessing a proposal requiring planning consent, some regard can be had to the nature and attributes of development which, within the same zone, would not require consent: McDonalds Australia Ltd v City of Payneham and Ors PAT No 151 of 1992.

35. It is also of relevance that there are, as pointed out in evidence by Ms Porter, other examples within the locality of high and lengthy boundary walls having greater visual impact than the proposed development.

36. The proposal, in its amended form, satisfies the private open space requirements set out in Zone Principle 19.

37. Having regard to the evidence of both Ms Porter and Ms Harrison, it is clear that the proposal will create some additional overshadowing of the properties to the west, east and south. However, on the basis of that same evidence, I am satisfied that the additional overshadowing will not be so great, or occur at such times, as to be unreasonable.

38. Zone Principle 22 sets out, inter alia, criteria for residential development being sited on a side boundary. These criteria stipulate that such development should:

"(i) not contain any windows, doors or other openings in the wall situated on the boundary;

(ii) not contain a wall greater than 15 metres long on the boundary;

(iii) not contain a wall greater than three metres high on the boundary; and

(iv) have a set-back of at least one metre to the opposite side boundary or rear access to the site"

39. The subject proposal satisfies criteria (i), (ii) and (iv), but exceeds the stipulated height by 800mm. Furthermore, Zone Principle 22 also stipulates a setback from rear boundaries of 4.0m. The proposal is setback 2.0m from that boundary. Having regard to the potential for two-storey developments of 6.0m or more in height located 3.0m from a side boundary, and to the fact that the existing garage is sited 2.0m from the rear boundary, I do not consider these areas of non-compliance to be fatal to the proposal, particularly when regard is had to other developments within the locality.

40. The material proposed for the additions are consistent with those of the existing dwelling and, although the height of the addition is such that it may be visible above the latter from some parts of Exmouth Road, it is not of a scale which would, in my view, have an adverse impact on a very diverse streetscape. One feature of the proposal does concern me, that being the incorporation of a stepped parapet to the northern (street) elevation of the addition. There does not appear to be any functional requirement for this element, and its appearance would, in my view, sit uncomfortably with the simple pitched roof of the existing dwelling. A more satisfactory appearance could be achieved by the substitution of a simple fascia, which followed the line of the roof to the addition.

41. On balance, having regard to all the evidence, to the relevant provisions of the Development Plan, and to what I saw on the view, I have concluded that the subject proposal, with the amendments foreshadowed in the course of the hearing, and with the above amendment to the northern elevation, would be in sufficient conformity with the relevant provisions of the Development Plan as to warrant provisional development plan consent.

42. I intimated to the parties that, subject to appropriate conditions, I would approve an amended proposal incorporating the following changes:

(a)	a reduction in the height of the eastern boundary wall from 4.2m to 3.8m;
(b)	a corresponding reduction in the height of the western wall from 3.0m to 2.8m;
(c)	substitution of a panel lift door for the roller door originally proposed; and
(d)	removal of the stepped parapet and the substitution of a simple fascia following the line of the roof.

43. On the resumption of proceedings, Mr Manos tendered an amended proposal plan (A4) incorporating the changes referred to in my intimation. The parties were agreed as to conditions of consent proposed by the Council.

44. The Order of the Court is that the decision of the Council on Development Application 040/1227/01 is set aside and Provisional Development Plan consent granted for the proposed development, subject to the following conditions:

1. Except where minor amendments may be required by other relevant acts or by the conditions below, the development is to be established in strict accordance with the amended proposal plans comprising Exhibit A4 in these proceedings and all works completed to the reasonable satisfaction of Council prior to the occupation and/or use of the development;

2. The building hereby approved shall be used only for domestic purposes associated with the dwelling;

3. All stormwater from the building and paved areas shall be disposed of in a manner and with materials to the reasonable satisfaction of Council, before the occupation of the site;

4. The external materials and finishes of the new building shall match those of the existing building, to the reasonable satisfaction of the approved authority.