Kallios v City of Burnside No ERD-02-623 [2002] SAERDC 128 (20 December 2002)

Last Updated: 22 December 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

09/12/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for two, two-storey dwellings - City of Burnside - Residential R450 Zone - consent refused by the Council - corner allotment - impact of wall mass on the streetscape and character and amenity of the locality - locality defined predominantly by single storey detached dwellings - generous setbacks - mainly single storey redevelopment on corner sites in the locality - the scale of buildings within the streetscape considered - compliance with several provisions of the Development Plan noted - proposal has insufficient regard to Council Wide Objective 11 and Principles 26, 28, 121 and 138 and Zone Objective 1 and Principle 6 - appeal dismissed - decision of the Council confirmed.

• Development Act 1993 , referred to.

Representation

Appellant: MR M KALLIOS
Counsel: MR W RUDD - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF BURNSIDE
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

ERD-02-623

Judgment No. [2002] SAERDC 128

20 December 2002

MICHAEL KALLIOS

v.

CITY OF BURNSIDE

ERDC No. 623 of 2002

[2002] SAERDC 128

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter concerns an appeal by Mr Michael Kallios against the decision of the City of Burnside ("the Council") to refuse provisional development plan consent to construct two, two-storey detached dwellings on land situated at 65 Allinga Avenue, Glenside ("the subject land").

2. Mr Kallios lodged the application seeking provisional development plan consent with the Council in May 2002. The Council dealt with it as a Category 1 development. Nonetheless, the Council issued a notice which informed residents in the near vicinity of the subject land of the proposed development. The copy documents indicate that two responses were received and that the application was accompanied by several letters in support of the proposal.

3. By decision notification dated 6 September 2002, the Council advised Mr Kallios that it had refused the consent sought for the following reasons:

• "That the site area, plot ratio and street setback for dwelling 1 are at odds with the quantitative requirements of the Development Plan; and

• The street setback for dwelling 2 is at odds with the quantitative requirements of the plan, such that the proposal is incompatible with existing dwellings in the locality in terms of scale and streetscape impact."

4. At the hearing Mr Rudd appeared for the appellant and Mr Hilditch for the Council. The Court heard evidence from two expert planners; Mr G Burns and Mr R McBryde. The Court viewed the subject land and properties in its near vicinity as well as several properties within the suburb of Glenside.

The Subject Land and Proposed Development

5. The subject land is located on the corner of Windsor Road and Allinga Avenue. It has a frontage of 15.24 metres to Allinga Avenue and 45.72 metres to Windsor Road. Its area is about 696 square metres. It is occupied by a dwelling which was constructed, according to Mr Burns, in the 1950's. This dwelling is to be demolished to make way for the proposed development.

6. Exhibits A2 and A3 depict the plans and elevations for the proposed development. They are different, but not substantially different, from those upon which the decision of the Council rests. It is apparent that changes have been introduced as a means of addressing some of the matters raised in the Council's reasons for its decision to refuse consent.

7. It is proposed to build two, two-storey dwellings on the subject land. It is intended that each dwelling will have its own allotment. Both dwellings face Windsor Road. Dwelling 1 and Dwelling 2 will each be sited on an allotment having an area of about 333 square metres and 363 square metres respectively. Mr McBryde's statement (Exhibit R2) describes the development thus:

q "Two, two-storey-detached dwellings, the eastern one with a single carport and the western one with a single carport and a pergola under which a second car could be parked;

q The eastern dwelling (Dwelling 2) is to be set back 6 metres from Allinga Avenue and 4.1 metres to Windsor Road, with the exception of a porch entry which is to be set back 2.76 metres from Windsor Road; [*]

q The upper level of Dwelling 2 is to occupy a smaller footprint than the ground floor area, with a similar set back to Windsor Road as the ground floor level of 4.1 metres;

q Dwelling 1 on the western end of the site is to have a similar set back from Windsor Road of 4.1 metres for both the ground and upper floor levels;

q The upper floor levels of both dwellings are further removed from the northern boundary of the subject land than the ground floor level; in each case the upper level is 5.5 metres from the northern boundary by scaling off the plan;

q Each dwelling is to have living areas and main bedroom on the ground floor with bedrooms 2 and 3 on the upper level with separate bathroom;

q With the exception of high level windows for the upper level bathroom, all upper level windows face Windsor Road;

q Each dwelling is designed with a different façade treatment to the Windsor Road frontage including different articulation devices, finishes, balcony treatments, verandahs and porch details;

q Each roof finish is to be different, with dwelling 1 having a steel Colorbond roof and dwelling 2 having a cement tile roof;

q The floor to ceiling height of each dwelling for ground and upper floors is 2.7 metres in all cases. The first floor thickness would appear to be about 300 mm (scaled) and the overall height to the ridge lines would appear to be approximately 7.8 metres above finished floor level;

q A 1800 mm high masonry wall is to be constructed along the northern 11 metres of the Allinga Avenue frontage to form a private open space for dwelling 2;

q Each dwelling is provided with outdoor private open space of varying proportions and size;"

The Relevant Provisions of the Development Plan

8. The subject land is depicted on Map Bur/6 in the Development Plan for the City of Burnside. It is within the Residential R450 Zone. The sole objective for the Residential R450 Zone is expressed thus:

"Objective 1: A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

9. The proposed development is neither complying nor non-complying in this zone.

10. Principle 1 for the zone advises that detached dwellings should have site areas of no less than 450 square metres and a frontage of no less than 15 metres. The site areas for other dwelling types in this zone are as follows:

•	Semi-detached dwelling: 350 square metres (Principle 2)
•	Residential flat building/group dwelling: 375 square metres (Principle 3)
•	Row dwelling: 375 square metres (Principle 4)

11. Principles 6 and 7 provide the quantitative and qualitative provisions for dwellings in the zone. They are in the following terms:

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

(c) in no circumstances:

(i) have a floor area (measured from the external faces of the walls of the buildings) in excess of 40 percent of the site of each dwelling;

(ii) cover more than 60 percent of the site of the development with buildings, driveways and car parking areas; and

(iii) have a total floor area (measured from the external faces of the walls of the building at each floor level) contained in any dwelling where there is a floor level directly above another floor level exceeding 50 percent of the site area of that dwelling; and

(d) should provide on the site of any dwelling private outdoor living space:

(i) equivalent to half the floor space of the dwelling suitable for the exclusive use and enjoyment of the occupants of that dwelling;

(ii) directly accessible from that dwelling and capable of enabling an extension of the function of that dwelling for relaxation, dining, entertainment, recreation, children's play and the other functions ancillary to the residential use of the site;

(iii) located and screened to provide reasonable privacy from dwellings or private open space on adjoining premises;

(iv) which has a minimum dimension of 2.5 metres; and

(v) one part of which is capable of containing a rectangle measuring not less than four metres by six metres."

"7 Buildings should be set-back from site boundaries (not being frontages to a road), in a manner which will avoid adverse impacts such as:

(a) overshadowing;

(b) overlooking;

(c) loss of privacy; and

(d) undue enclosure of private open space,

and in the development of a site not having two or more intersecting road frontages:

(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; and

(ii) any part of the external wall of any building having a floor level greater than 1.5 metres above natural ground level, should not be less than three metres from any side boundary of its allotment."

12. Both expert witnesses identified several other provisions of the Development Plan that are expressed in the Metropolitan Adelaide and Council Wide sections. Having carefully examined their statements and oral evidence and given my own consideration to the provisions of the Development Plan, I have concluded that the following are the most relevant in the circumstances:

COUNCIL WIDE

"Objective 2: A compact urban area."

"Objective 5: No adverse effect on the amenity or the predominant character of the area in which development is undertaken."

"Objective 10: A range of housing types to suit the needs and preferences of all sections of the population of the City of Burnside."

"Objective 11: Residential development which:

(a) promotes the efficient use of urban infrastructure and services;

(b) increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council area;

(c) provides dwellings of a high standard of design and siting to ensure a high level of amenity, privacy and security for their occupants and neighbours;

(d) take advantage of solar energy; and

(e) promotes and retains community identity."

Principles of development control

"18 Dwellings containing two storeys at medium densities should be:

(a) located:

(i) along major roads and public transport routes;

(ii) adjacent centres and commercial areas;

(iii) on sites large enough to provide appropriate set-back of buildings from the boundaries of the site; and

(iv) where public open space is available in close proximity to the site of the development; and

(b) design in a manner which:

(i) contributes positively to the streetscape and the locality in which the land is situated; and

(ii) does not unreasonably create overlooking or overshadowing internal and external living areas of other dwellings within the development or on adjacent premises."

"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."

"26 The set-back of a building from the boundary of a road, or the boundary of any land shown as being required for road widening on a plan deposited under the provisions of the Metropolitan Road Widening Plan Act, 1972, should:

(a) equate with the predominant building set-back distances established within the locality in which the buildings is situated;

(b) be established with due regard to local road widening requirements;

(c) where an allotment has two or more intersecting road frontages, not create unsafe vehicle movements due to restricted line of sight between intersecting carriageways;

(d) where no predominant building set-back distance is established in the locality in which the building is situated:

(i) be compatible with the land form and the nature of the locality generally; and

(ii) be increased beyond the minimum distance prescribed in this principle of development control in accordance with the height, width or bulk of buildings on the site and their impact on the streetscape, should this be necessary; and

(iii) minimize any adverse impact on the streetscape, particularly where the building is situated on the high side of a road; and

(e) not in general be less than:

(i) three metres in the Residential R350 Zone;

(ii) six metres in the Residential R450 and Residential R550 Zones; and

(iii) eight metres in the Residential R625 and Residential R750 Zones."

"28 The development of detached dwellings on corner allotments may be undertaken on sites of an area prescribed for a semi-detached dwelling in the zone in which the land is situated where:

(a) the resulting development would contribute positively to the streetscape; and

(b) the development complies in all other respects with the relevant principles of development control applicable to detached dwellings."

"29 Dwellings and buildings associated with the development of dwellings should be designed and constructed in a manner and of materials which will positively contribute to any streetscape to which the development relates by the avoidance of:

(a) large blank walls facing a street;

(b) garage or carport doors facing a street the individual or aggregate width of which exceeds more than one-third of the width of the site of the dwelling measured at the front alignment of the building;

(c) garages or carports extending forward from the front of the dwelling in a manner which dominates or detracts from the appearance of the development; and

(d) materials which present either excessively bland or strident appearance."

"30 Where garages and carports are appropriately located within close proximity to street boundaries such as on corner allotments:

(a) the set-back distance of the structure from the street boundary should be not less than one metre for a typical single garage or carport of up to four metres in width and be increased commensurate with the width and scale of larger structures to minimize their impact on the relevant streetscape; or

(b) where car parking spaces are required or appropriately to be provided in front of such garages or carports, the set-back distance from the street boundary should be not less than 5.4 metres."

"121 Each building should be located and designed in respect of its:

(a) height;

(b) size;

(c) scale;

(d) colour;

(e) form;

(f) siting;

(g) architectural style; and

(h) materials of construction,

to harmonize with conditions desired as indicated by the objectives or principles of development control for the relevant zone, or otherwise the predominant character of other buildings in the locality."

"124 Landscaping, including the establishment of plant species suited to the land, should be provided and maintained with development in order to:

(a) complement the landscaping provided by adjacent development and enhance the visual appearance and character of the area;

(b) shade, define and create windbreaks for pedestrian paths and spaces;

(c) screen, shade and enhance the appearance of car parking areas; and

(d) screen service yards, loading areas and outdoor storage areas."

"138 Building development on a site with frontage to a road, where that development is:

(a) large in bulk or height in comparison with other buildings with frontage to the same road;

(b) to have a highly reflective or brightly coloured external surface; and

(c) not well screened from view by vegetation, land form or other buildings,

should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as to minimize the visual prominence of the building when developed."

METROPOLITAN ADELAIDE

"Objective 7: A variety and choice of dwelling types to meet the needs and preferences of all sections of the community."

"Objective 8: Containment of housing costs through the encouragement of a full range of design and development techniques."

"Objective 9: Safe, pleasant, convenient and efficient residential zones."

"Objective 42: The amenity of localities not impaired by the appearance of land, buildings and objects."

Principle of Development Control

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

The Evidence and Assessment

13. There was considerable common ground in the evidence of Mr McBryde and Mr Burns. Both identified similar localities for the purposes of the assessment. They both opined that the locality contained sites which have been the subject of (recent and past) development in the nature of "urban consolidation" and that such development was common on corner sites. They also agreed that the subject land was suitable for two dwellings (including two-storey dwellings) of an appropriate design. Their statements identify with some consistency those aspects of the development that exceed or fall short of the numerical provisions. As to compliance with the many qualitative guidelines there appears to be little between them on the proposed development having adequately met those provisions dealing with overlooking, overshadowing, solar access, privacy and security, internal spaces and the space around and between buildings.

14. The principal point of departure between the experts resides in the question of whether the siting of the buildings (having regard to their bulk, scale and design) is suitable when proper consideration is given to the predominant character and the amenity of the locality generally and the streetscape in particular. Distilled in this way it seems to me that, in addition to consideration being given to all provisions relevant to this matter, specific attention might be given to the provisions of Council Wide Principles 18, 26, 28, 121 and 138 and Zone Objective 1 and those aspects of the locality and streetscape against which the proposed development might be evaluated.

15. Mr McBryde holds the view that the proposal does not adequately satisfy those provisions that seek compatibility between new development and those aspects of the character of the locality that are manifest in the predominant setbacks from street boundaries and the relative scale of the buildings within the streetscape. In his oral evidence Mr McBryde opined that the proximity of adjoining dwellings, setback distances from roads, landscaping and space around buildings, the style and typing of buildings which typify the locality, the width of streets, the significance of street vegetation and generally the level of amenity were the principal elements of the locality and the streetscape that are relevant considerations in this respect.

16. Mr McBryde's main, but not the only, criticism stems from the siting of the two-storey (8 metre high) front walls 3.5 metres from Windsor Road. He acknowledged that some attempt had been made to soften the impact through the use of a portico (Dwelling 2 - setback 2.76 metres) and a verandah (Dwelling 1 - setback 2.76 metres) and other fenestrations. His evidence is that these measures are not sufficient to provide the necessary transition from the buildings into the public spaces.

17. Mr Burns held a different view. He considered the principal elements in the locality that should be taken into account when deciding the merits of the proposed development to be the width of streets and the nature and extent of the trees within them, the extent and style of redevelopment particularly on corner sites, the condition of the dwelling on the subject land and the size of the subject land. In his view, the spacing between adjacent buildings and the proposed development adequately reflects the existing character and the "rhythm" of the built form. Furthermore, Mr Burns opined that the shortfall of the setback distances from Windsor Road when Principle 26 was applied is excusable in light of the comfortable relationship between the proposed carport and pergola attached to Dwelling 1 and the dwelling immediately to the west and the wider than usual road reserve.

18. The scale relationship between buildings and between buildings and the public and private spaces within which they are sited is an important, if not fundamental, building block of the (built form) character of an area and the amenity intended for its residents and users generally. It is a concept frequently recognised in development plans. It is also a concept which, when applied in some circumstances, will yield very different results than in others. The relationships between a building and the public realm considered to be acceptable and expected in a central business district is likely to be very different from that in suburbia. Similar differences can be observed and would be expected if a comparison was made between inner suburbs of a metropolitan district and more spacious outer "greenfields" areas. It is not always an easy task to determine the appropriate relationship for there are many factors at work, not the least of which are the planning provisions for an area and the various elements that comprise its character. There is, in the end, considerable scope for subjectivity, particularly where a change in built form in the nature of two-storey development is contemplated in an area or locality the existing character of which is founded on "conventional" single storey low density development within a grid road pattern. Such are the circumstances before me.

19. The proposed development is on a corner site. By putting two dwellings on the land, it seeks to gain the advantage of a smaller site by virtue of Principle 28. The advantage, in this case, is quite significant (a reduction of 100 square metres per dwelling site). However, Principle 28 is qualified. To gain advantage of the reduced site area the proposed development should firstly comply with all other provisions for detached dwellings. Secondly, the development should make a "positive contribution" to the streetscape. In any event, by virtue of several zone and Council Wide provisions, development should be of a bulk and scale and be sited in a manner compatible and be otherwise harmonious with the character and amenity of the locality (see Zone Objective 1 and Principle 6 and Council Wide Objective 11 and Principles 18, 23, 26, 28, 121 and 138).

20. There is thus a considerable focus in the Development Plan for the Council on the siting and scale of buildings and relationships so formed within its setting. It is a recurring theme and, in the circumstances before me, should be afforded some weight.

21. The proposal involves the siting of two dwellings, each having a wall mass about 10.3 metres long and 7.0 metres high, 3.5 metres from the Windsor Road alignment. There are no other instances in the locality in which such a scale relationship is to be observed. The locality is occupied predominantly by single storey dwellings setback between 6 metres and 9 metres from road boundaries (see Mr McBryde's statement, Exhibit R2 - page 5). On corner sites within and outside of the locality these setback distances are reduced to 4 metres. However, the vast majority of those examples relate to single storey buildings.

22. The wall mass of the magnitude proposed is, in my view, quite uncharacteristic of the built form/scale relationships that are observed time and again in the locality (Exhibits R3 and R4 amply demonstrate the point). In my view it will be an overpowering and unwelcome element in the streetscape. This is an aspect of the development that can be distinguished from the two-storey dwellings on the opposite corner (the top floor of which is stepped in from the main face) and the development on the corner of Allinga Avenue and Ashmore Street (the top floor being within the roof space). The fact that these examples deal with the setback of a two-storey home on a corner site in a different way is not to say that they are good examples of residential design. Instead, both illustrate the beneficial effect of reducing the mass of a two-storey building on corner sites where the predominant character is established by single storey dwellings in relatively spacious surroundings.

23. I have given careful consideration to the evidence, the submissions and all relevant provisions of the Development Plan. The shortcomings apparent in the proposal basically stems from the siting of relatively large two-storey dwellings on the land, the area and dimensions of which do not enable the proposed buildings to sit comfortably in their surroundings. I am cognisant of the fact that the proposal - if developed - would add to the range of dwelling types within the Residential R450 Zone. This is an outcome envisaged in Zone Objective 1. I also recognise that the provisions of the Development Plan anticipates a situation in which the site area for a detached dwelling could be reduced from 450 square metres to 350 square metres. The proposal seeks to take advantage of this provision and, by doing so, is to be found consistent with several numerical and qualitative guidelines contained in Zone Principles 6 and 7.

24. Nevertheless, when assessed against all of the circumstances and the relevant provisions of the Development Plan - when weighted appropriately - the proposal fails. The siting of the proposed development has not had sufficient regard to the setback guidelines in Council Wide Principle 26, the principles for siting dwellings of such bulk and scale expressed in Council Wide Principle 138 and those provisions which speak to development retaining the character of the locality and contributing positively to the streetscape (Council Wide Objective 11 and Principles 28(a) and 121 and Zone Objective 1 and Principle 6(a)).

25. The appeal is dismissed and the decision of the Council to refuse provisional development plan consent is confirmed.

26. There will be an order accordingly.

^[*] Mr McBryde amended his statement to include the measurement of 3.5 metres to the nearest main face of the wall.