Prime Building Company v City of Holdfast Bay & Ors No ERD-01-978 [2002] SAERDC 3 (7 May 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

17/12/2001 to 18/12/2001, 18/03/2002, 29/04/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for 4 dwellings involving "hammer-head" style layout - City of Holdfast Bay - Residential A Zone - refused by the Council - form of development, density, streetscape and design all matters for consideration - density decided having regard to the zone objectives, supporting text, dwelling types, average density calculations and nature of existing development in adjoining zone - memorandum to the parties establishing design shortcomings and suggested design principles - opportunity afforded to amend proposal - amendments received and the development so proposed considered to be in adequate compliance with the Development Plan - decision of the Council reversed - provisional development plan consent granted - parties to be heard on conditions.

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 , referred to.
• Verdouw v City of Unley [2001] SASC 63;
• Polites v City of Holdfast Bay & Anor (No.2) [1998] EDLR 449;
• Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1982) 29 SASR at p.101;
• Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569;
• Salisbury Constructions v City of Holdfast Bay & Billich [1999] SAERDC 16;
• City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56, considered.

Representation

Appellant: PRIME BUILDING COMPANY
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF HOLDFAST BAY
Counsel: MR T MELLOR - Solicitors: MELLOR OLSSON

Respondent: S ERICKSON & D SALINGER
In Person

ERD-01-978

Judgment No. [2002] SAERDC 3

7 May 2002

PRIME BUILDING COMPANY

v.

CITY OF HOLDFAST BAY

&

S ERICKSON & D SALINGER

ERDC No. 978 of 2001

[2002] SAERDC 3

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal relates to a parcel of land situated on the southern side of Harrow Road, Somerton Park about 60-70 metres west of Brighton Road. It is a large parcel of land, irregular in shape and has an area of 1,329m2. It is known as 3-5 Harrow Road and the details of the parcel, which I shall refer to as the "subject land" is contained in Certificates of Title Volume 5802 Folio 129 and Volume 5365 Folio 895.

2. By development application dated 16 May 2001 submitted to the Council of the City of Holdfast Bay ("the Council"), Prime Building Company ("the appellant") applied to construct four dwellings on the subject land. The proposal involves the removal of the existing dwelling and outbuilding from the western portion of the subject land and the removal of the disused hard surfaced tennis court from the eastern portion. I will describe the proposed development in more detail later. Upon receipt of the application, the Council classified the proposed use as a Category 3 development and issued the appropriate notification. In due course it received two representations made pursuant to Section 38 of the Development Act 1993.

3. By decision notification dated 14 August 2001, the Council notified the appellant that it had refused the grant of consent. Its decision took into account a report prepared by a member of its staff, which report recommended the grant of consent subject to the imposition of 14 conditions. Its reasons for refusal were later set out in Mellor Olsson's letter dated 25 October 2001, which states the following:-.

"The proposed development represents an overdevelopment of the site insofar as:

• the nature of the dwellings are at odds with Residential A Zone Objective 1 and Principle 1 which encourage predominantly detached dwellings given that none of the proposed dwellings are detached;

• the front two dwellings incorporate site areas of 307m2 for dwelling 1 and 304m2 for dwelling 2 which do not meet the minimum site area of 325m2 prescribed in the Development Plan (refer Residential A Zone Principles 7 and 9);

• dwelling 4 incorporates nil side setbacks which is at odds with Residential A Zone Principle 13;

• the front (Harrow Road) portion of the driveway which services the rear dwellings incorporates hard surfaced areas and no landscaping which is not in keeping with Residential A Zone Principle 20;

• the design of dwelling 3 incorporates living, entertainment and private open space areas adjacent bedroom areas of adjoining dwellings which is at odds with Council Wide Principle 63 and would compromise the level of residential amenity currently enjoyed by the adjoining property owners;

The form of the dwellings (ie. not detached) are not in keeping with the predominant character of the area, particularly to the west and as a result, will impair the amenity of the locality as per Council Wide Principle 49."

4. Prime Building Company, being aggrieved with the decision of the Council, appealed to this Court. Mr Salinger and Ms Erickson, who both reside in a dwelling immediately to the south of the subject land and who earlier had submitted a joint representation in respect of the proposed development were joined as a party to the action. There being no settlement reached at the conference held pursuant to the provisions of the Environment, Resources and Development Court Act 1993 the matter proceeded to hearing.

5. When the matter came before the Court Mr Manos appeared for the appellant, Mr Mellor for the respondent Council and Mr Salinger and later Ms Erickson on their own behalf. The Court received several exhibits and heard evidence from Mr Salinger, Mr Heynen, a qualified and experienced planner, and Mr Hignett, a qualified and experienced planner and architect. In the presence of the parties the Court viewed the subject land, Mr Salinger's and Ms Erickson's property, the locality generally and a recent development adjacent The Esplanade to which reference was made during the course of the hearing.

6. During the course of this appeal the proposed development has undergone several design amendments, particularly instigated by me in my memorandum to the parties delivered on 14 January 2002. At the outset, Exhibits A3 and A4 (being amendments of the original proposal - Exhibit A1) were tendered to the Court as the plans upon which the appeal was to be based. That is no longer the case. My memorandum, which outlined my preliminary findings in relation to Exhibits A3 and A4 on a key question of density, invited the appellant to consider certain design changes within broad design parameters I considered appropriate when applied to the general configuration of buildings shown on the plans in those exhibits.

7. As a consequence Mr Manos tendered to the Court, in the first instance Exhibit A5 (Issue E of Drawing No. 1057/01) together with a statement (Exhibit A6) from Mr Siow, a qualified and experienced traffic engineer. As a consequence of the advice provided by Mr Hignett, Mr Manos tendered further amendments, tendered as Exhibit A7 (Issue F of Drawing No. 1057/01) and Exhibit A8. Exhibits A7 and A8 are now the plans to which this appeal relates.

8. As I have said, the design of the proposal now before the Court has changed somewhat. That said, the amendments could not in any way be regarded as being of a type which changes the essential nature of that which was first presented to the Court. Although my considerations in this matter are to be based on the proposal in Exhibits A7 and A8, the reasoning contained in my memorandum establishes the appropriate planning and design context for my decision.

The Proposed Development in Brief

9. The proposed development involves the demolition of the existing dwelling and outbuildings and the removal of a disused tennis court and the construction of four single storey dwellings. Residences 1 and 2 have direct and independent access to Harrow Road. Residences 3 and 4 are to the rear of Residences 1 and 2 and would use a common driveway for vehicle and pedestrian access. The driveway is located adjacent the western boundary of the subject land. Residences 3 and 4 are, effectively, sited on an allotment in a "hammer-head" configuration.

10. The form of development in Exhibit A7 is different from that which was proposed in Exhibits A3 and A4. Insofar as this difference may bear upon the proper characterisation of the proposed development, the amendment of most moment is the separation of Residence 1 from Residence 2 and Residence 3 from Residence 4.

11. No submissions were put to me in relation to the implications (if any) that the amendments may have in respect to the public notification categories assigned to Exhibits A3 and A4. Notwithstanding, I do not think that anyone having an interest in this matter will suffer prejudice in that respect. As I have said, the nature of the development now proposed in Exhibits A7 and A8 remains essentially unchanged.

Exhibits A3 and A4 - the "first" proposal before the Court

12. In his opening, Mr Manos submitted that Residences 3 and 4 in the original proposal are in the form of two attached "group dwellings" within the meaning given to that form of housing in Schedule 1 of the Development Regulations 1993. I accept that submission. Mr Manos also submitted that Residences 1 and 2 are two attached dwellings in the nature of "semi-detached dwellings" as defined in Schedule 1. He acknowledged that such a qualified definition would not necessarily withstand examination against the principles which emerged from the decision of the Full Court of the Supreme Court in Verdouw v City of Unley [2001] SASC 63 in light of the fact that the dwellings are joined by a common wall associated with a garage. Having regard to the findings in that matter, I find it difficult to concur with Mr Manos (ie. that the dwellings are "in the nature of semi-detached dwellings"). Residences 1 and 2 are most aptly described as a single building comprising two dwellings each with a site and garage.

13. The proposal first before the Court has the following attributes. Each dwelling has 3 bedrooms, a lounge/dining area, kitchen area and the usual amenities and services. Some relevant building and open areas statistics follow:-

Residence 1 Residence 2 Residence 3 Residence 4

Total Building Area 140.48m² 129.01m² 124.86m² 134.82m²

Private Open Space 67.44m² 74.32m² 60.78m² 60.66m²

Site Areas (1) 305m² 306.15m² 208.36m² 205.49m²

Site Areas (2) as above as above 360.36m² 357.49m²

Site Areas (3) as above as above 310.86m² 307.99m²

Site Coverage (with 46.1% 42.1% 40.2% 43.8%

respect to (3) above)

14. Site Areas (1) above is provided in the tabulation contained in Exhibit A4. Site Areas (2) has been computed by allocating 50% of the common area (the driveway, carparking, front landscaping and manoeuvring areas totalling 304m2) to each site area for Residences 3 and 4. In the absence of specific provisions in the Development Plan to the contrary, Site Areas (2) are the most relevant way of expressing this aspect of the development having regard to the findings of Debelle J in Polites v City of Holdfast Bay & Anor (No.2) [1998] EDLR 449. The driveway is clearly serving Residences 3 and 4 exclusively and for the use and enjoyment of those dwellings. Although each development must be examined on the facts and circumstances I see no reason why in light of Polites the curtilage of the sites for Residences 3 and 4 should not be included in the consideration of the site area for each dwelling. However, Principle 8 of the Residential A Zone, within which zone the subject land is located, expressly provides for the "handle" of the hammer-head to be excluded from consideration when assessing the merits of the proposal with respect to the minimum site areas contained in Principle 7. The way in which Site Areas (3) is computed is therefore a relevant consideration in the assessment of the proposal.

The Locality

15. Both Mr Heynen and Mr Hignett prepared a "locality plan" for the purposes of this matter. They are similar and the difference between them is of no moment in deciding this appeal. In his statement, Mr Hignett describes the development in the locality, in part, in the following terms:-

"The locality is predominantly characterised by detached dwellings on generous allotments to the west. There is a two storey residential flat building at the intersection of Harrow Road with Brighton Road, commercial development on the east side of Brighton Road and a church with associated facilities on the southern corner of Harrow Road and Brighton Road (adjacent to the subject land).

Harrow Road further west of my locality does have single storey multiple dwelling development on a number of allotments which were probably previously occupied by detached dwellings.

The rear area of allotments facing Rossall Road adjacent to the subject land are included because of the change in predominant distance between the rear of dwellings and back fences which are a characteristic of the subject proposal."

16. Mr Heynen says much the same but adds the following comments regarding the Harrow Road streetscape and amenity:-

"Elements that contribute to the amenity of the locality include:

• The existence of well maintained street trees;

• Established landscaping;

• An average set back of dwellings from Harrow Road of 8 metres; and

• A relatively consistent separation between buildings (predominantly one side boundary set back of 1 to 2 metres and a garage or carport on the opposing boundary)."

The Relevant Provisions of the Development Plan

17. The key principles of planning guiding development in the City of Holdfast Bay are to be found in its Development Plan and in particular the provisions applying to the Residential A Zone and Council Wide provisions for transportation and residential development. The zone provisions are quite specific and are made up of three objectives, twenty-six principles and a detailed introductory statement which statement bears some resemblance to the "character statements" to be found in the City of Adelaide Development Plan.

18. Objectives 1, 2 and 3 are in the following terms:-

"Objective 1: A desired character distinguished by predominantly detached dwellings located on sites of varying size.

Objective 2: The residential amenity of the area being maintained and enhanced through additional street tree planting and substantial front garden landscaping.

Objective 3: An increase in the number of dwellings in the zone as a result of small-scale infill development and redevelopment."

19. That part of the introductory statement of relevance is as follows:-

"The Residential A Zone covers a significant proportion of the Brighton area and is intended to retain the existing character of the area while allowing for limited residential infill and redevelopment.

The zone contains dwellings in a wide range of styles and ages, however its character is established by the predominance of detached dwellings of single-storey construction on individual allotments.

..... Dwellings are typically of a double fronted or triple fronted configuration with driveway access down one side of the allotment and a small set-back from the non-driveway side boundary. .....

Additional minor infill and redevelopment opportunities exist within the zone. Such development activity should predominantly involve the creation of hammer-head allotments, the development of the rear allotments having dual road frontages, the development of lane frontages and the development of group dwellings at the rear of developed allotments. These types of infill development will allow the most important element of the residential character of the area to be retained, that is, streetscapes of predominantly detached dwellings, while allowing for an increase in the number and variety of dwellings within the zone." (emphasis added)

20. Zone Principles 23 and 24 indicate that the proposed use is neither complying nor non-complying. Principles 1, 2 and 3 in effect repeat the objectives.

21. Both expert witnesses are on common ground (in relation to Exhibits A3 and A4) with respect to the generic use of the land. Both agree that its use for residential development of a density that is higher than that which exists is appropriate. In effect, they agree that the subject land is suitable as a site to increase density as intended by Objective 3. However, in the end, they disagree about the number of dwellings proposed. Both also agree that the streetscape configuration as presented by the attachment of Residences 1 and 2 in Exhibits A3 and A4 is satisfactory, apparently in contradiction with Objective 1 and the theme of the introductory statement. I will return to this point later.

22. The structure and content of the principles within the zone are quite significant in the assessment of the proposal. Principles 6 and 8 expressly encourage development on hammer-head allotments. Principle 7 provides the site areas that are intended for certain dwelling types. They are as follows:-

•	Detached dwelling - 450m2
•	Semi-detached dwelling, row dwelling,

group dwelling, residential flat building - 325m²

23. As is usual, this principle is cast in advisory terms. I also note in relation to Exhibits A3 and A4 that no site area is provided in respect of the type of dwelling that best describes Residences 1 and 2. However, I accept Mr Heynen's opinion that the site area for semi-detached dwellings in Principle 7 may be an appropriate standard for Residences 1 and 2.

24. Principle 9 is rather unusual. It is in the following terms:-

"9 In addition to meeting the site area standards described in principles of development control numbered 7 and 8, a site should be of sufficient dimensions to adequately provide for the functions to be conducted on that site, including provision for a dwelling, car parking and access, private open space, utility areas for clothes drying, rubbish and storage, and landscaping, while meeting set-back, height, solar access and other design requirements described in principles of development control numbered 10 to 21 inclusive."

25. This principle emphasises the importance of the specific design measures provided for in Principles 10 to 21 inclusive. I am mindful of the words of His Honour Jacobs J in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1982) 29 SASR at 101:-

"There is scarcely any planning proposal, however good, to which some legitimate objection cannot be taken, but that does not mean that it has to be refused. On the contrary, the duty of the Planning Appeal Board is to look at the proposal as a whole, to consider all the evidence, including the opinion of expert planners, in support of the proposal as a desirable and sensible form of land use and development, to weigh the legitimate objections and criticisms, with due regard to the public interest but not ignoring private interests if both such interests can be satisfactorily reconciled, and to determine in the end whether the balance lies in favour of granting or refusing approval."

26. Nothing that has been put before me dilutes or challenges the planning principle established by His Honour. My assessment is to consider all relevant provisions. However, it appears to me that Principle 9 has been included with a specific purpose and task in mind. Its underlying purpose I think is to highlight the importance of residential design particularly in situations where hammer-head allotments are to be utilised in existing built-up areas. It appears to me that the task of Principle 9 is to provide particular emphasis on specific design aspects of this form of residential infill and it follows in my view that they might be afforded considerable weight.

27. In this respect the most relevant provisions are to be found in Principles 10 (site dimensions), 13 (setbacks), 15 (boundary walls), 17 (general siting, massing and roof pitch), 20 and 21 (landscaping). Other Council Wide provisions lend support to the specific zone principles. Those of most relevance are to be found under the heading of "Transportation" (Principles 30, 33, 34, 35, 36, 37 and 38) and "Residential" (Principles 48, 49, 55, 57, 63, 69, 70, 71, 74 and 77).

28. Mr Manos submitted that I should also have regard to the provisions of the Residential (Brighton Road) Zone, which zone effectively abuts the eastern boundary of the subject land. Specifically, he submitted that the residential density provisions for various dwelling types should be taken into account. His submissions rely on the principles which were established by Jacobs J in Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569. The principle established by His Honour - later to be applied by Commissioner Wallman in Salisbury Constructions v City of Holdfast Bay & Billich [1999] SAERDC 16 - says, in essence, that since zone boundaries are merely lines on a map "the residential integrity of the residential zone at its perimeter might be very different from its residential integrity elsewhere". Mr Manos says that both Papadopoulos and Salisbury Constructions provide sufficient authority for me to consider the site area appropriate for the subject land also in the context of those applying through Principle 8 of the Residential (Brighton Road) Zone. Among other things, that zone has, as one objective, the purpose of increasing population and dwellings and to accommodate medium-density residential development. Principle 8 is in the following terms:-

"8 Any site accommodating a detached dwelling should be at least 300 square metres in area, any site accommodating a semi-detached dwelling should be at least 250 square metres in area and any site accommodating a row dwelling, group dwelling or residential flat building should be at least 200 square metres in area."

29. One must take care in the application of Papadopoulos as an approach to be applied in all developments which abut another zone. It seems to me that it is a proper and perhaps necessary approach to be applied where the amenity impacts of development at the edge of a zone should not be anticipated near its centre. This is the context in which I think His Honour was referring to in his use of the term "residential integrity". I am supported in this view by reference to the definition of the word "integrity" in the Macquarie Dictionary:-

"2. the state of being ..... undiminished"

"3. sound, unimpaired or perfect condition"

30. I accept that the findings in Papadopoulos have been used quite extensively in the assessment of development adjacent zone boundaries. Taken at its widest, the principle established by His Honour may have quite substantial planning implications. However, unless the zone provisions say otherwise, to utilise the approach taken in Papadopoulos as a mechanism by which development provides a "transition" or "gradation" may not now be appropriate or be appropriate in every circumstance, particularly in those cases where development is not conducive to the achievement of the objectives for the zone in which the development is proposed. Support for this view may be found in the judgment of Debelle J in the matter of City of Mitcham v Freckmann (1999) [1999] SASC 234; 74 SASR 56. I acknowledge that Commissioner Wallman called upon Papadopoulos in the matter of Salisbury Constructions. However, the development, the subject of that action, may be distinguished from the matter before me because it was one which "straddled" the zone boundary.

31. Having regard to the submissions and evidence, the issues in this matter may be summarised thus:-

•	Whether the form of development is generally of a type that is consistent with the objectives of the zone.
•	Whether the density of development is appropriate in the circumstances and consistent with the relevant provisions of the Development Plan.
•	Whether the design of the development is consistent with the relevant provisions having particular regard to the zone provisions and whether the impacts resulting from the design approach are acceptable.

32. These issues are not mutually exclusive and are, in the end, to be taken as a whole when applying proper principles of planning.

Form of Development - Exhibits A3 and A4

33. The Council stated, in its further reasons for refusal, that the proposed development will impair the amenity of the locality as a result of the form of the dwellings being inconsistent with the predominant character of the area. I think this view of the purpose of the zone is too narrow and does not accurately reflect the directions established in the objectives and supporting text.

34. The Development Plan is very clear in establishing the planning objectives for the zone. It speaks about the desirability of retaining the existing character, which character is predominantly made up of single storey detached dwellings. It speaks in support of infill development and redevelopment to fulfil an objective of increasing the number of dwellings and sanctions the "hammer-head" form of development. To some extent the proposed development is consistent with these desired outcomes. However, I think both Mr Heynen and Mr Hignett understated the importance of retaining the key distinguishing element sought in the zone; that being a development utilising detached dwellings as a major streetscape element. To sweep aside this aspect of the desired character is a wrong approach. The retention or re-establishment of a streetscape character formed by detached dwellings is in my view a fundamental tenet of the zone that is not to be ignored. In saying this, I am not necessarily implying the need to accommodate a detached dwelling(s) on an allotment, the size of which resembles those accommodating dwellings in the locality. Zone Principle 1 provides considerable scope to consider site areas of varying magnitude.

35. I am supported in this conclusion by the findings of Commissioner Wallman in Salisbury Constructions. This action involved a residential development involving a hammer-head style arrangement within the Residential A Zone. When considering a submission which contended that a hammer-head style development should "retain the existing dwelling", he said the following:-

"The retention of a streetscape of 'predominantly detached dwellings' need not, however, in my opinion, depend upon retention of any particular existing detached dwelling provided that the dwelling if demolished is replaced by a detached dwelling or a dwelling having the appearance of a detached dwelling, reasonably comparable with the character of the existing dwelling that is replaced." (emphasis added)

36. In saying this Commissioner Wallman underscored the importance of the character sought in Zone Objective 1, which objective is given meaning with several statements in the introductory passage mentioned previously and the terms of Zone Principle 17 which is expressed in the following terms:-

"17 Development should generally accord with the design and appearance prevailing in the locality as described in the introduction to the Residential A Zone and particularly as it relates to dwelling siting, set-backs, massing and roof pitch."

37. I consider the retention of a streetscape appearance formed predominantly by buildings in the nature of detached dwellings to be of prime importance in the locality. It is a desired planning outcome that should only be set aside where circumstances support departure. Neither expert witness nor from that which I saw on the view provides justification for such a departure. Furthermore, I am of the view that the circumstances may warrant the exercise of discretion in the event that the separation of Residences 1 and 2 (to preserve and enhance the streetscape) results in an inconsistency with the site areas preferred for detached dwellings.

Density of Development - Exhibits A3 and A4

38. I am satisfied that the area of the subject land is "capable" of accommodating four dwellings in a way consistent with the relevant provisions of the Development Plan. I have reached this conclusion - in the absence of considering any design consequences of the current arrangement of buildings on, or the shape of, the subject land - for the following reasons:-

•

When taking the subject land as a whole, and applying the "averaging method" of calculating site areas, the subject land is capable of yielding four site areas each having 332m2. Site areas of this magnitude exceed the provisions for a range of dwelling types in Zone Principle 7. It is to be expected that the distribution of site areas will not be even across a parcel of land where the development employs a hammer-head style of development. This is the case in the matter before me. However, I am satisfied that the area and configuration of the subject land is capable of accommodating four dwellings of a design consistent with that which is intended for the zone and which adequately provides for the functions described in Zone Principle 9.

•

It is generally accepted that density can be measured in several ways other than the number of dwelling units on a given area of land. Site coverage is one such measure. The zone provisions are silent in this respect. However, Council Wide Principle 70 provides a 60% total building coverage limit (exclusive of certain structures such as swimming pools, pergolas and garden structures). According to Mr Heynen's calculations the proposed building areas result in site coverages which vary between 40.2% and 46.1%, which site coverages are well below that provided in Principle 70. It is also apparent that that part of the unbuilt portion of the land devoted to private open space is, in each case, in conformity with Council Wide Principle 71. For dwellings having the number of bedrooms proposed, Principle 71 provides that each should have allocated to it open space having an area of at least 60m2 of particular dimensions and with a capacity to provide for the normal functions of a dwelling. Residences 1 and 2 readily comply with this principle. Residences 3 and 4 comply but their areas are "at the margin".

•

For the reasons outlined previously I do not place weight on the proximity of the subject land to the Residential (Brighton Road) Zone as justification for the density as proposed. However, one cannot ignore the nature of the existing development in the near vicinity of the subject land. Any increase in building mass that may arise from the intended density and which may be viewed as being uncharacteristic of the Residential A Zone should recognise the change in the built-form character near Brighton Road largely arising from the presence of the church and the two-storey residential flat buildings.

39. The foregoing is a conclusion reached without having regard to the consequences of the proposed density and proposed layout of the dwellings on other design provisions. Thus, the above assessment is somewhat of an artificial approach and is not intended to lead necessarily to the conclusion that the land, as a matter of fact, is capable of accommodating the four dwellings as proposed. The irregular configuration of the subject land imposes significant design limitations which, in the case of the proposed development, have resulted in several design flaws that are not acceptable as the matter now stands.

Design Considerations - Exhibits A3 and A4

40. Having given consideration to the views of Mr Heynen and Mr Hignett and the submissions and evidence of Mr Salinger, I reached the following conclusion:-

•

The proposed development is in sufficient compliance with the provisions for the number of access points and the number of carparking spaces. Other matters relating to manoeuvrability will be dealt with later. In the event that the development proceeds some attention will need to be given to the design of the western driveway specifically in relation to the existing driveway immediately to the west.

•

Council Wide Principles 55, 57, 63, 69, 70, 71, 74 and 77 have some relevance but are to be read in conjunction with Zone Principles 10 - 22 inclusive. The development is in sufficient compliance with those provisions of the Council Wide section regarding street setbacks, wall and building heights and open space and site coverage.

•

The relationship between Residences 3 and 4 and Mr Salinger's property is adequate. I do not think that the separation distances between the proposed development and the noise/privacy sensitive parts of the Salinger property are such that an unreasonable nuisance will occur - a circumstance sought to be avoided by Council Wide Principle 63. That said, the fence between the two properties is in a state of considerable disrepair and I have no doubt that its replacement would be a consideration in the near future. The installation of a replacement fence of a minimum height of 1.8 metres as proposed would be an appropriate and additional element to protect the interests of Mr Salinger, Ms Erickson and family. I acknowledge the evidence and submissions of Mr Salinger. However, I think his concerns are unsupportable in the context of this matter. The evidence of both Mr Heynen and Mr Hignett, the provisions for setbacks in Council Wide Principle 74 and those applying to complying development in the Residential A Zone provide sufficient support for the proposed location of those dwellings. In practical terms the relationship between the proposed private yards and Mr Salinger's garden and house is nothing out of the ordinary and is to be expected in a zone where infill development is expressly encouraged to occur using hammer-head allotment redevelopment techniques.

•

The size and distribution of the buildings on the subject land together with the shape of its rear section imposes a constraint on appropriate and necessary design. In the first instance, the evidence leads me to a preliminary conclusion that the space proposed in the driveway serving Residences 3 and 4 is inadequate for vehicle manoeuvring purposes. It will not, according to the evidence of Mr Hignett - who applied appropriate Australian Standards in his analysis - provide the required space for proper movement of vehicles when exiting from the subject land. I acknowledge Mr Manos's concern that he has not had the opportunity to have Mr Hignett's views tested though a qualified traffic engineer. That opportunity will be granted. I also note that Mr Heynen acknowledged that the vehicle manoeuvring areas are tight. His solution, quickly drafted during the course of the hearing, on the one hand appeared to provide a solution but, on the other, at the cost of sacrificing the area and integrity of the open spaces associated with Residences 1 and 2 and the loss of landscaping along the rear fence to Residences 1 and 2 - a feature of the development that in my view should be retained. Notwithstanding this design deficiency, the conflict in vehicle manoeuvring along the "handle" of the hammer-head will not be a significant issue.

•

The second consequence concerns the "functionality" of Residences 3 and 4. I agree with the general thrust of Mr Hignett's view - that is, the dimensions of that part of the subject land upon which Residences 3 and 4 are situated may not be sufficient to accommodate two dwellings of the size and type proposed and at the same time adequately comply with the relevant provisions. I have mentioned previously that several zone principles are to be given special consideration. Principle 13 is one such provision. The setback distances from a side boundary of a site has a particular purpose to serve and, in my view, more so in particularly tight areas. Residence 4, as a consequence of the design as presented in Exhibit A4, is locked in. The physical relationship between Bedroom 2 of Residence 4 and the dining and lounge room, Bedroom 3 and the eastern wall of Residence 3 is poor, resulting in "dead space" between the buildings and a poor outlook. To some extent the amendments proposed by Mr Heynen as a means of complying with Principle 77(a) along the eastern side of Residence 4 has improved the relationship between the front and the rear of that dwelling. However the corridor so provided is barely adequate - given the width of the garage - and certainly not an example of good design. The changes are in the nature of an "after-thought" and is, unfortunately, symptomatic of certain aspects of the design generally.

Memorandum of 14 January 2002 - Preliminary Findings - A Basis for Design Changes

41. For the foregoing reasons I concluded that the use of the subject land generally for the purposes intended was consistent with the broad direction established in the Development Plan. It is a parcel of land suitable for infill and redevelopment and, at least in theory, capable of accommodating up to four dwellings. I advised the parties accordingly.

42. However, I also advised the parties that the development as presented to the Court had certain shortcomings. I suggested that they may be overcome with thoughtful redesign and I offered the appellant the opportunity to do so.

43. Having reached such a conclusion I thought it appropriate to provide guidance on three key aspects of the proposed development. I advised the parties of the design considerations in the following terms:-

"(1) The separation of Residences 1 and 2 to form two detached dwellings to achieve consistency with the overarching objective of the zone. The separation distances should be consistent with Zone Principle 13. Caution should be exercised in the event that such a reconfiguration results in the necessity to remove an existing street tree - an outcome sought to be avoided by Council Wide Principle 30(g). In this respect the appellant is strongly advised to seek the views of the Council.

(2) The redesign of the driveway and manoeuvring areas associated with Residences 3 and 4 to ensure appropriate vehicle movement to and from the subject land in a forward direction. Advice from an appropriately qualified expert is recommended. I am prepared to allow further expert evidence from the parties on this issue alone.

Any redesign of this aspect of the proposed development is to firstly maintain appropriate private open space with respect to area, useability and integrity. Secondly, sufficient space is to be provided between the common driveway serving Residences 3 and 4 and the rear fence of Residences 1 and 2 to enable appropriate landscaping to be planted as a screening and visual enhancement device. The amendments should not compromise the landscaping area in the front of these two dwellings (ie. Residences 3 and 4). Ideally this area should be increased to meet the spirit or intent or Council Wide Principle 69.

(3) The design of Residences 3 and 4 is to be amended to enable:-

1.	At least one metre distance being provided between the eastern wall of Residence 4 and the eastern boundary of the subject land.
2.	An increase in the width of the garage to ensure convenient movement between the rear and front of the dwelling while a vehicle is present.
3.	An improvement to the relationship between the eastern wall of Residence 3 and the western wall of Residence 4 - such that more reasonable outlooks are provided and the area of dead-end space is minimised or eliminated.

The objectives sought in (2) and (3) above may also be achieved by detaching Residences 3 and 4 by a distance of one metre.

When amending the design of Residences 3 and 4 the relationship between those dwellings and the southern boundary is to be maintained. The existing vegetation adjacent the common boundary should also be noted on the amended plan for retention."

44. Exhibits A7 and A8 is the appellant's design response to my memorandum. In the main, the design now accords with the spirit of that which my memorandum suggested. However, as Mr Salinger and Ms Erickson point out in their submissions - a matter that I will address shortly - not all aspects have been fully met.

45. The key design changes are these:-

•

Residences 1 and 2 have been separated into two dwellings accessed by two independent driveways. This meets the intent of Item (1) above and any inconsistency with Principle 13 in the circumstances is inconsequential. Exhibit A9 is an authorisation by the Council to remove one street tree necessitated by the amendment and a direction to replace that tree with a different species in an approved location.

•

The design of the driveway and parking area servicing Residences 3 and 4 has been amended in accordance with the recommendations of Mr Siow, a well qualified traffic engineer. His assessment of the changes is contained in a brief written statement tendered as Exhibit A6. Mr Siow's opinion is uncontested and I saw little need to call him to provide oral evidence. The redesign accords with the intent of Item (2) above. However, the implication of these changes to the provision of private open spaces will be dealt with further on. That said, I am satisfied that the landscaping areas so provided are in adequate compliance with Council Wide Principle 69.

•

Residences 3 and 4 are now separated into two dwellings and are configured in a way that is in general compliance with Zone Principle 13. Any inconsistency is inconsequential. The position of these dwellings in relation to Mr Salinger and Ms Ericksons' property has changed marginally. For the reasons given further on I consider these changes also to be inconsequential.

•

The setback distance from the road boundary in relation to Residences 1 and 2 now vary between 5.5 metres and 5.980 metres (reduced from 6 metres as proposed on Exhibits A3 and A4). Upon the advice of the Council's consultant planner, Mr Hignett, the façade treatment of these dwellings has been amended by the introduction of decorative features and roof-line extensions.

•

The total floor area of the proposed development has been reduced by 22m2 and the private open spaces allocated to each dwelling have been amended, the most significant being the reduction of the area available to Residence 2 from about 74m2 to 57m2. Although this reduction is quite significant it is within reasonable compliance with all relevant aspects of Council Wide Principle 71. I am reinforced in this conclusion in noting that the average site coverage is now in the region of 38% and 44.6% (building area/site area ratio). These measures are well below the provisions of Council Wide Principle 70.

46. Mr Manos and Mr Mellor indicated that their respective expert planning witnesses, Mr Heynen and Mr Hignett, have now agreed that the proposed development is in adequate compliance with the relevant provisions of the Development Plan.

The Salinger and Erickson Submissions

47. By letter dated 27 March 2002, Mr Salinger and Ms Erickson forwarded to the Court a written submission drawing to my attention several differences between the design guidelines in my memorandum and the amended proposal in Exhibit A5, which was further amended by Exhibits A7 and A8. That submission remains on the Court file.

48. Most of the differences have been previously mentioned. It would seem that Mr Salinger and Ms Erickson considered my memorandum to be "directive" in its intent and established "conditions" for a successful redesign. That is not so, for it is well accepted that there can be many solutions that adequately deal with design shortcomings.

49. The issues of main concern to Mr Salinger and Ms Erickson appear to be related to setbacks between buildings and between buildings and side boundaries, the relationship between Residences 3 and 4 and their common boundary and the setback from Harrow Road.

50. As I have said, some differences are inconsequential. The setbacks between buildings and boundaries are of a magnitude that will not be noted within the total context of the development or of a magnitude which could be reasonably said to be so inconsistent with the Development Plan as would warrant refusal. Differences of 70mm and 100mm are of no moment in the circumstances and I respectfully disagree with Mr Salinger and Ms Erickson, who submitted that the design, as presented in Exhibits A7 and A8, are contemptuous of the content and intent of my memorandum. In my opinion the proposal in this respect is in adequate compliance with Zone Principles 13 and 15.

51. Having considered all relevant evidence it seems to me that the amended setback between Residences 3 and 4 and the southern boundary will not in itself have adverse consequences on the Salinger/Erickson property. From their perspective, the building will be less visually bulky (being now split into two separate buildings) and any concerns about the transfer of noise - which, in my opinion and that of Mr Heynen and Mr Hignett is not of a concern in these circumstances - will be dispelled with the replacement of the existing dilapidated fence (now proposed on Exhibit A7 as a two metre high Colorbond fence). In the end, Principle 63 speaks about minimising the impact of noise on bedrooms of adjoining dwellings, not eliminating it. There was simply no evidence put to me that demonstrated that a setback distance of 6.6 metres and the construction of a solid fence is insufficient in the circumstances or inconsistent with any reasonable interpretation of Principle 63.

52. Equally I find that the setback from Harrow Road is acceptable. The building has been articulated and its appearance will be enhanced by a rendered masonry/tubular steel fence. In reaching this conclusion I have also taken into account the existence of an open carparking area and the church wall built on the Harrow Road boundary immediately adjacent the subject land and the generous distances between Residence 1 and buildings to the east and Residence 2 and the dwelling immediately to the west. In all, I consider that the proposed setbacks achieve that which is sought in Principle 13.

Conclusion and Decision

53. Having considered all that has been put before me and for the reasons given, I have concluded that the Council's grounds for refusal have not been made out, that its decision should be reversed and that the proposed development as detailed in Exhibits A7 and A8 are in sufficient compliance with the Development Plan to warrant the grant of provisional development plan consent subject to the imposition of the appropriate conditions.

54. I will hear the parties on the nature and extent of conditions appropriate to this development on Monday 3 June 2002 at 9.15am.