Davison v City of Charles Sturtnam No ERD-01-1259 [2002] SAERDC 12 (22 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green (ex tempore)

Hearing

22/01/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Applicant appeal against Council refusal to elevated deck extension in front of semi-detached dwellings - planning merits considered - building setback to road frontage key consideration - resultant visual, amenity, streetscape and character impacts considered - proposed zero setback compared to Development Plan guideline, the existing building setbacks, and the adjacent property setbacks - significant visual, amenity and streetscape impacts would arise - appeal dismissed.

• Development Act 1993 , referred to.

Representation

Appellant: JOHN DAVISON
In Person

Respondent: CITY OF CHARLES STURT
Counsel: MS A NICHOLLS - Solicitors: NORMAN WATERHOUSE

ERD-01-1259

Judgment No. [2002] SAERDC 12

22 January 2002

JOHN DAVISON

v

CITY OF CHARLES STURT

(ERDC No.1259 OF 2001)

[2001] SAERDC 12

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an applicant appeal against the decision of the Council made on 29 October 2001, to refuse to grant provisional development plan consent under the Development Act, 1993, to Development Application No. 252/01623/01.

2. The subject land is numbered 301 and 301A, The Esplanade (corner North Street), Henley Beach and the proposal involves two, deck extensions (with dimensions of 3 metres by 3 metres and 3 metres by 3.4 metres) in front of multi-level semi-detached dwellings, for the purposes of additional outdoor entertainment area for the occupants. The proposal is contained in a plan marked Exhibit R3, not the plan erroneously tendered by the appellant (Exhibit A1), and with the former varied by the appellant during the proceedings, only insofar as the balustrade now proposed is to be powder coated vertical aluminium elements painted a cream colour to match the existing, not glass infill panels as had been indicated on the plan. The proposed decks would be an extension at the 'ground' level of the dwellings, although at The Esplanade frontage, that level is some 2.1 - 2.3 metres above footpath level (and a lower courtyard level below), which together with the proposed balustrade height of 0.9 metres, provide a total height of the extended structures in the order of 3 - 3.2 metres above footpath level on The Esplanade frontage. The 'ground' level of each dwelling contains the kitchen, dining, living area and decks. Whilst the upper level contains bedrooms and further decking.

3. Limited evidence was provided by the appellant in person (an earthmoving/building contractor) and written and oral evidence was provided by Mr G. Pantelos, an experienced expert town planner.

4. The Court viewed the site and locality on 22 January 2002 in the presence of the parties.

5. The locality, as defined on plan by Mr Pantelos extends for a distance of some 150 metres to the south and some 130 metres to the north. However from the view, and as subsequently agreed by Mr Pantelos, I find that it extends for a further distance to the north, north-west and to the south, south-west, an additional 100 metres, although nothing turns on this difference having regard to the setback characteristics of buildings within that area. The locality is defined to comprise that area of specific impact of a proposal on its surroundings and in reverse, of the surroundings on a proposal. It is very rare, and not relevant in this case, to give consideration to sites that are located outside the relevant locality.

6. Within the locality there are no buildings fronting The Esplanade that have a zero setback to that road frontage. To the south the setbacks are generally in the order of 8 metres or more, with some buildings well south setback to within 2 to 3 metres, whilst to the north, setbacks are varied from 8 metres or more to a greater number of structures in the range 3 to 5 metres and to two semi-detached dwellings in the order of 1.5 metres. A new development further to the north, outside the locality, has a wall and balustrading erected to the front boundary, however Mr Pantelos could not assist the Court concerning the rationale for that outcome or prior development on that site. That wall and balustrade are at a significantly lower level than that proposed, and in addition given their location, I find them to be of no great relevance in the consideration of this matter.

7. The relevant Development Plan is Henley and Grange (City) consolidated version 5 July 2001. In his evidence Mr Pantelos set out the various relevant provisions, which I agree with and are repeated in summary, number form only:

METROPOLITAN ADELAIDE

Objectives 9 and 43

Principle of Development Control 9

COUNCIL WIDE

Objective 1

Principles of Development Control 3, 21, 22, 73 and 126.

8. The site is within the Residential 2 F Zone (refer Map HeG/4), however, other than Objective 1 supporting semi-detached dwellings and Principle 4 providing guidelines for complying forms of development (which this development is not), the provisions are of no relevance to consideration of this proposal.

9. There are no classification, categorisation, referrals or procedural issues raised or relevant in this matter.

10. The expert town planning evidence provided by Mr Pantelos was unrefuted and essentially unchallenged by the appellant. The appellant's key argument for a positive consideration of the proposal rested with the fact that other buildings further afield along The Esplanade are setback either a closer distance or on the front property boundary and he saw no distinction with those sites and the subject site. He also put forward the notion of an inconsistency of opinion and recommendations from Council planning staff, and that if he lodged a similar proposal again, he may receive a favourable decision from the Council. The appellant conceded that he had no knowledge of the Development Plan provisions and nor of the guidelines with regard to building setbacks.

11. There are no land use or zoning issues involved in this matter and it rests squarely on well defined issues primarily relating to the building extension setback to The Esplanade and the impact consequences on appearance, streetscape, amenity and character of the locality. It is noted that one of the provisions (principle 126 supported by Table HeG/3) provides a numerical guideline of 8 metres in general for building setbacks from most roads (including the one in question), or 2.5 metres from a second street frontage. All of the other provisions are of a subjective nature. The proposal is for structures to be erected within 0 metres of the road boundary, in comparison to the existing building decking (excluding stairs) that are setback 3 metres from The Esplanade road boundary, in comparison to the 8 metre general setback guideline or a 2.5 metre guideline for second street frontages. Such minimum setback guidelines in the Development Plan cannot be ignored, unless there are sound extenuating circumstances. None are evidence in this case.

12. The proposed decks and balustrade will be elevated to the height of some 3.2 metres above footpath level, with no setback to the road frontage, and they will be quite obtrusive for some distance to the north and south (in the order of 200 metres or more). In addition, the lack of any setback to the road boundary is incongruous with the alignment of adjacent development to the north and south. On this basis, the proposal will cause a significant negative visual impact on the streetscape and the locality.

13. In conclusion, I find that the proposal does not sufficiently meet the Development Plan as a whole and in particular three clauses. With regard to Council Wide Principle 21, I find that the building extension is not designed to harmonise with the existing local character of the area in terms of its form and mass and lack of setback distance. Secondly, in terms of Council Wide Principle 22, I find that the lack of setback of the building extension from the road boundary along The Esplanade does not achieve a satisfactory relationship to adjacent development, particularly to the south and to the streetscape in the locality as outlined above. Thirdly, with regard to Council Wide Principle 126, the building extension will be erected nearer to the existing road boundary (and there being no road widening of relevance), than the distance prescribed in Table HeG/3, namely 8 metres, or even if consideration is given to the secondary frontage guideline of 2.5 metres, it significantly exceeds that guideline, on the basis that no setback is proposed. Notwithstanding the existing nature of and height of the front wall, I find that the decision in the matter is quite clear cut.

14. I find that the matter is significantly at variance with the Development Plan and therefore the decision of the Court is that the appeal is dismissed and the decision of the Council is confirmed.

15. There will be an order accordingly.