Distinctive Homes Pty Ltd v City of Charles Sturt No ERD-02-246 [2002] SAERDC 49 (30 May 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

21/05/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to erect two two-storey dwellings on vacant land - Residential A Zone - refused by Council - proposal amended by consent at commencement of proceedings - planning merits considered - combination of narrow frontages, minimal setback along common boundary and height will create street elevations out of keeping with established character of locality - conflict with number of relevant development plan provisions - appeal dismissed and decision of Council confirmed.

• Development Act 1993 , referred to.

Representation

Appellant: DISTINCTIVE HOMES PTY LTD
Advocates: MR K FLOURENTZOU

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

ERD-02-246

Judgment No. [2002] SAERDC 49

30 May 2002

DISTINCTIVE HOMES PTY LTD

v

CITY OF CHARLES STURT

(ERDC No. 246 of 2002)

[2002] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGEMENT:

1. This appeal concerns a proposal to erect two two-storey detached dwellings on land at 448 Tapleys Hill Road, Fulham Gardens.

2. By development application dated 22 November 2001, Distinctive Homes ("the Appellant") sought provisional development plan consent for the above proposal from the City of Charles Sturt, but was refused on 25 February 2002, the Council's reasons for refusal being as follows:

"1. The visual impact of the northern wall of Unit 2 upon the dwelling to the north.

2. The overshadowing impact of Unit 1 on the rear yard of the dwelling to the south.

3. The unsympathetic streetscape character to be created by the two dwellings with a 2m gap.

4. The ability of vehicles to egress the site in a forward direction."

3. Distinctive Homes, being aggrieved by the decision of the Council, appealed to this Court against it. No compromise was reached at a conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 and the matter then proceeded to a hearing, at which the Appellant was represented by Mr K Flourentzou, a building supervisor, and the Council by Ms A Nicholls, of counsel.

4. The Court conducted a view of the subject land and its locality, received a number of documents, and heard evidence from Mr Flourentzou and from Mr C Bennett, a qualified and experienced town planner in the employ of the respondent Council.

The Subject Land

5. The subject land is located at 448 Tapleys Hill Road, Fulham Gardens, and is more particularly described in Certificate of Title Volume 5461 Folio 601. It has been divided into two rectangular allotments, having frontages of 9.14m and 9.15m respectively to Tapleys Hill Road, and each having an area of approximately 399m2. The land is presently vacant, contains no significant vegetation, and is somewhat overgrown with grass and weeds. It is located within the Residential A Zone as depicted on Map HiWo/12 in the Development Plan for the City of Hindmarsh and Woodville dated 30 August 2001.

The Locality

6. The locality defined by Mr Bennett, the only professional planner to give evidence, extended north of the subject land to the junction of Tapleys Hill Road and Marlborough/Valetta Streets, taking in residential development on the western side of Tapley's Hill Road and the Fulham Gardens Shopping Centre on the eastern side, and also included three allotments to the rear of the subject land, those allotments abutting the subject land and the allotments to its immediate north and south. Each of the three allotments is occupied by a detached dwelling.

7. The Fulham Gardens Shopping Centre comprises an enclosed mall and an outward-facing row of shops set back some 70m from Tapleys Hill Road, with a bitumenised carparking area between the latter and the shopping centre.

8. Tapleys Hill Road is a Primary Arterial Road carrying, on the evidence of Mr Bennett, some 35,000 vehicles/day.

9. Within the locality defined by Mr Bennett, all allotments on the western side of Tapleys Hill Road, with the exception of the subject land, have been developed for housing, some for detached dwellings, some for semi-detached. The age of dwellings varies, some being recently constructed, others being up to 40 years old. Building heights, materials, styles and setbacks are varied although all dwellings are of brick and tile construction. To the immediate south of the subject land, the dwelling at 450 Tapleys Hill Road is two-storey, set back 8.0m from its front boundary, and covers almost the entire frontage of the site. To the immediate north of the subject land is a pair of single storey semi-detached dwellings set back 15.0m from Tapleys Hill Road and with a projecting double garage structure set back 7.0m from that road. In front of the garages is a shared turning area, which allows vehicles to leave the site in a forward direction.

The Proposal

10. Following discussions between the parties on site, Mr Flourentzou, for the Appellant, advised the Court at the commencement of proceedings that the Appellant wished the Court to consider the proposal in an amended form, and tendered a drawing (Exhibit A1) indicating a number of amendments to the proposal which had been considered by the Council. In brief, the amendments were as follows:

(a) bringing the two dwellings forward of their original setback of 12.0m to a setback of 8.0m;

(b) changing the proposed form of title from Torrens to Community, this allowing creation of a shared driveway and turning area to allow vehicles to enter and leave the site in a forward direction;

(c) rearranging of landscaping between the proposed dwelling and the front boundary of the subject land, to reflect the above changes; and

(d) incorporating obscure glazing to all side and rear-facing upper level windows.

11. Mr Flourentzou also advised the Court that the Appellant would not object to the imposition of a condition requiring double-glazing of the windows in the front elevation of each dwelling.

12. Mr Bennett, in evidence, advised the Court that, as a consequence of the proposed amendments to the proposal, the proposed development, in his opinion, satisfied most relevant provisions of the Development Plan, save for Council Wide Principles 14 and 78, and Metropolitan Adelaide Objective 30 and Principles 9 and 10. Those provisions are in the following terms:

Council Wide

"Principle 14: The floor space, and the bulk of a residential building, and the space around the building, should be appropriate to the locality in which the building is to be erected."

"Principle 78: The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."

Metropolitan Adelaide

"Objective 30: The amenity of localities not impaired by the appearance of land, buildings and objects."

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

"Principle 10: Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:

(a) for adjacent properties; and

(b) for each dwelling and private open space."

13. Mr Bennett's remaining concerns were as follows:

(a) The combined effect of the narrow frontages, the minimal separation between the two dwellings and their two-storey design would be to create a pronounced verticality in the street elevations of the proposal, and a dark, canyon-like effect between the two dwellings. There was a strong horizontal emphasis in the massing and appearance of existing dwellings within the locality, and the proposal would constitute an alien and discordant element, thereby conflicting with Council Wide Principles 14 and 78 and Metropolitan Adelaide Objective 30 and Principle 9;

(b) the proposal, even with its revised setback, would extend some 1.5m further to the west than the dwelling to the immediate south of the subject land. As a consequence, about half of an outdoor living area at the rear of that dwelling would be overshadowed at midday on the winter solstice. This level of overshadowing would bring the proposal in conflict with Metropolitan Adelaide Principle 10.

14. With reference to the first of Mr Bennett's concerns, Mr Flourentzou observed that it would be possible to erect a two-storey detached dwelling as a complying form of development within the zone, subject to satisfying the standards set out in Table HiWo/1. Minimum side boundary setbacks prescribed for complying development were 1.0m, save for eaves and guttering, which were to be set back a minimum of 400mm. Having regard to the standards for a complying development, and recognising that those standards were generally regarded as conservative, the 900mm setback to side boundaries proposed was not, in his view, unreasonable.

15. Were the proposal to generally align with the standards for a complying development, save for side setbacks, there would be some force to Mr Flourentzou's argument. However, it does not. For a detached dwelling to be a complying development in the zone, a site area of at least 560m2 and a frontage of at least 15.0m would be required. As Mr Bennett observed in his evidence, a frontage of that size, by comparison with that available for each allotment here, would result in a two-storey building which did not have the exaggerated verticality of the proposed dwellings, and which would therefore be more consistent with the character of existing dwellings in the locality.

16. I agree with Mr Bennett that the proposed dwellings would represent a discordant element in the locality as a consequence of the combination of their height, the narrowness of their front elevations, and the canyon-like effect of the 1800mm space between them. I further agree with his view that those elements of the proposal bring it into conflict with Metropolitan Adelaide Objective 30 and Principle 9, and Council Wide Principles 14 and 78.

17. Mr Flourentzou, in evidence, explained that the reason for seeking to erect two detached dwellings on the subject land, rather than a pair of semi-detached dwellings (the latter clearly being favoured by the Council) was that it was intended to use different colours, materials and finishes for the two dwellings, to give them a separate identity.

18. Given that the proposed dwellings are identical in design, are located very close together, and have an identical front setback, such an approach would, in my opinion, produce a result even more discordant than completion of these dwellings in identical colours, materials and finishes, and reinforces my conclusion as to the proposal's conflict with the Development Plan provisions to which I have referred.

19. With reference to the second of Mr Bennett's concerns, I acknowledge that there will be some overshadowing of the outdoor living area of the adjoining property to the south occasioned by the erection of a two-storey dwelling on the southernmost of the two allotments comprising the subject land. However, that overshadowing will add to the overshadowing already created by the existing dwelling on that land for only a short period on the winter solstice, and during the afternoon the outdoor living area in question will receive reasonable amounts of sunlight. Accordingly, I do not consider the proposal to conflict with Metropolitan Adelaide Principle 10.

20. Having regard to my conclusions above, I have decided that the decision of the Council, appealed against, was correct, and should be upheld.

21. There will be an order accordingly.